RETHINKING CRIMINAL JUSTICE
Every now and then, lot of noise is made about the poverty of imagination in dealing with criminal justice challenges in Pakistan. This cacophony is essentially emotional and sans serious thought. The shallowness of this approach has led to a public policy consideration that looks at justice sector as a basket case and as a black hole that should not be treated as a developmental priority. This mindset must be put right by revisiting and rethinking criminal justice and its governance in the country. This adumbration will highlight few points that can help rethink and re-design a more optimistic discourse on the subject.
Firstly, given the primacy of national security and its all-pervasive nature in the context of Pakistan, the criminal justice must twine itself around the doctrine of national security; the two concepts must be treated as an organic whole. It must be acknowledged that criminal justice is all about internal security. Its tools include, but are not limited to, the use of legal power of the state through criminal law, criminal procedure and evidence duly counterbalanced by constitutional safeguards of fundamental rights. These legal powers have many manifestations. From arresting an accused to attaching his property to regulating protests and enforcing Covid-related instructions in the country: all fall under this category. The delinking of national security and criminal justice has only led to disorder and parallel legal and judicial systems in the country. The commonality of state in national security and criminal justice must be reckoned with, and provincial state powers and federal state power must act in unison.
Secondly, in line with the Supreme Court-driven Police Reforms Committee Report of 2019, police must be treated as a concurrent subject. Presently, the provinces treat police as a provincial and policing as a federal subject. This does not square with constitutional scheme that provided for a synchronized architecture that served objectives of both the federation and the provinces.
Thirdly, the rule of law should be the spirit of criminal justice system. The technical aspects of procedural law that was written in 1898 with precedential force reinforces technicalities over spirit of law; this can and must be changed by adopting a rights-based approach towards the rule of law. The incumbent government has prepared over eight hundred legal amendments to address this issue. The black letter law must be energized by the spirit of rights to bring about desired results.
Fourthly, the inequality in application of law must be addressed through use of technology that does not differentiate on the basis of gender, sex or any other reason. This is easier said than done as all components of the criminal justice system and their leadership will have to embrace technology and its outcomes at the cost of their discretion and unchecked authority.
Fifthly, the justice statistics must be as loyally collected, collated and disseminated as the statistics of other social sector indicators like health and education. The openness will help plan better and will lead to evidence-based budgeting and decision-making. The present method of measuring crimes is arcane and has many definitional as well as practical problems. The entry into the criminal justice system may be measured, but should not be used as an operational performance evaluation tool, and should certainly not be used as a Disclosure and Barring Service (DBS) check (Character Certificates). The practice of issuing police vetting on the basis of registered crime should be reviewed and a better measure of arraignment record be used for police vetting and background checks; this will ease the grip of crime reports on the criminal justice processes that are often problematized due to over-weightage of registered crime instead of evidence-based crime-processing in the form of criminal charging by police. The global best practice of treating crime as a social phenomenon instead of a state-controlled activity may be considered to rethink police, prosecution and judicature performance and accountability metrics.
Sixthly, the alternate dispute resolution and legal aid become operational only at the trial stage at the moment. This approach must be introduced at the starting point of the criminal justice system in the form of pre-registration of criminal case strategies.
Seventhly, the conventional criminal justice is designed to prevent and detect heinous crimes against property and persons. While dealing with heinous crime is very important, introducing strategies that can assure public safety in women and children is no less significant. The urban and rural policing and criminal justice strategies must be tailored to societal problems. This would require much more effort than usually considered. Balancing competing needs of aggressive policing with community-oriented restorative justice practices must be the nub of police training as police officers need to know both aspects of policing.
Lastly, the governance of criminal justice system should be organized on modern management principles that require accountability and authority to lie at one point. Public policy on crime control and public safety must be informed by specialists with enabling environment.
The author is an independent researcher and has done his BCL from the University of Oxford. Email: email@example.com