A well-built criminal justice sector is essential for the prevalence of the rule of law in any state. It is a method to grant social and political autonomy to civilians and holds criminals accountable, thereby ensuring the dispersal of justice. The criminal justice sector of Pakistan consists of five units, namely, police, courts, prisons, probation and parole and prosecution. All the components have to work together to have a strong and capable criminal justice system. Owing to a number of problems, the efficacy of the criminal justice sector of Pakistan is seriously compromised. These problems can be attributed to each unit of the criminal justice sector independently from the other. This brief will discuss a few of those issues in the following sections:
The law enforcement structure of Pakistan is formed of both the federal and the provincial police. Just like many other departments of Pakistan, the law enforcement sector is also not unfamiliar with resource shortages, limited equipment and substandard training. The below-par capacity of the police has a lot to do with the inability of Pakistan to introduce modern technologies and methods to investigate cases. The insufficiency of forensic investigation for the most part is a contributing factor as well.
To put things further into perspective, there are approximately nineteen “police organizations” working at a federal level amounting to roughly 210,000. They are not answerable to a single but varied authority hence why are gravely uncoordinated. Additionally, the total number of manpower is seriously underwhelming given the total population of Pakistan.
Meanwhile, the provincial police sector consists of forces from the five provinces and Azad Kashmir. The Police Service of Pakistan is responsible for appointing most of the senior personnel of these forces. Although they work for the provincial governments, they are hired, trained and managed by the federal government. This sort of hierarchy at the provincial level is particularly troubling for the junior personnel of these forces. The forces at the provincial level, as the federal police organizations, do not share resources among them, let alone the information acquired during the investigation. On top of that, there is a huge lack of funding for these forces. Much of these funds are spent rather on the salaries and other expenses of the personnel than the improvement of the sector itself. The increase in salaries does play a role in incentivizing the staff and somewhat as a result of higher salaries, coupled with better training and equipment, the National Highways and Motorway Police is one of the most effective police organizations.
The political parties and other influential entities’ intervention in the working of the police is rampant. The police is under the control of powerful people and these people are able to get away with any sort of transgression from law based on their might. The police in and of itself exhibit an unrestrained demonstration of power. This is evident from the large-scale legally unwarranted killings and maltreatment of suspects and arrestees. On numerous occasions, the police refuse to lodge First Information Reports (FIRs) and even become a hurdle in the fair and impartial investigation of the cases which, needless to say, they are bound by law to do so.
According to Human Rights Watch, many police officers disclosed that there is a common practice called “false or fake encounter killings” in which the officials of the police sector set up a fake encounter to execute a person who has already been detained by the police. The police is, more often than not, never held accountable for these extrajudicial killings. Arbitrary detention is another form of display of total domination over the public. This is facilitated by the provisions of Criminal Procedure Code (1898) which provide for “arrest without warrant” merely on the grounds of “reasonable suspicion”. This is a pattern followed by many laws of the country, for instance, the Maintenance of Public Order Ordinance (1960) or the Protection of Pakistan Act (now defunct). All of them, in one way or another, pave the way for these ill practices and violations by police officials with little to no accountability. Detention of innocent individuals on the basis of false charges and torture of the detainees is only the tip of the iceberg and there are many other examples of grave human rights violations by the police in Pakistan.
Fida Mohammad and Paul Conway stated, in 2004, that the duress which is being exercised by the criminal justice system of Pakistan was pertinent to its part in propagating “submission to the established political order.” This includes the police under its ambit as well. Moreover, Jonathan Jackson, Muhammad Asif, Bren Bradford and Zakria Zakar stated, in 2014, that after the partition of the subcontinent the colonial rulers were “replaced by the elites of the new-born country, and the police remained unsuccessful — or perhaps, more correctly, uninterested — in fulfilling any kind of service role and, often, in providing even a minimal sense of security or protection for ordinary people. The successful capture of the police by post-independence elites meant that the general population and the police remained distant.” This precisely explains the situation of the police department in Pakistan.
Among prevailing derelictions of duty are bribery, extortion and other forms of corruption. Police corruption is to be defined as: “Refers to an officer knowingly doing or not doing something that is against his or her duty for some form of financial or material gain or promise of such gain.” This issue directly relates to the officials not being paid adequately, especially at the lower ranks and corruption just seems an easy way out. Poor work conditions and an overload of cases further add to the misery of police officials who are not in a position to dispose of their duties successfully. The process of being promoted is very strenuous and is determined majorly by external factors such as favouritism. In addition to this, the police have to work in correspondence with the outdated courts and legal system that is raging with issues of its own.
There is a dire need to strengthen the court system in Pakistan. The judiciary of Pakistan is eminently outmoded and is ineffective in serving justice in most cases. To say that the cases are litigated poorly is an understatement. There is an immense burden upon the judicial system of the state as a consequence of unreasonable delays in the litigation process. According to the Law and Justice Commission of Pakistan (L&JCP), in 2018, there were approximately 1,810,745 pending cases in the courts of Pakistan.
A number of components have resulted in such ineffective litigation including the hindrance caused by the investigating staff or the police, to begin with. The challans are not submitted within time, there are not sufficient investigating officers available, there is a gap of coordination between these investigating officers and the civilians and they are not being administered and managed duly. The unavailability of witnesses is an additional factor in the prolongation of the trial proceedings. This is rooted in the witnesses being on thin ice throughout the proceedings. Ample security is not given to these witnesses and on account of these perilous trials, witnesses prefer to not show up.
In many instances, due to the large distance between the prisons and the courts, the detainees, who are under trial, are not even brought before the judges. This further hampers the conclusion of trial proceedings. One more factor contributing to the inefficient and decelerated working of the courts is the non-separation of civil and criminal functions of courts. The judges should be experienced in both kinds of work to polish their professionalization. This will facilitate the court work by assigning both to the judges conversely, hence enhancing the specialization of the two simultaneously.
During these proceedings, the judges also make no conscious effort to quickly wind up these trials. The lifetime of most of the cases is filled with redundant postponements and these adjournments are predominantly unwarranted. As a matter of fact, several adjournments are granted because of an abundance of cases at the disposal of the judges. So, usually, these postponements are not wilful but the judges are well-nigh impelled to grant them.
The overflow of cases can be curtailed by the employment of alternate methods for the settlement of these suits such as Alternative Disputes Resolution (ADR). It can tremendously lift the weight off the shoulders of the judiciary and enable them to litigate the rest of the cases productively. The mechanism of ADR is being applied in Pakistan but it requires much more development at the moment. This borderline practice of delaying cases by the judges can also be explained a little through the extensive judgments written by the judges. These unnecessarily lengthy judgments take up a considerable amount of time which can be utilized to hear other pending cases alternatively. Chief Justices Committee, in 2000, observed in its meeting that:
“Backlog and delays in quick dispensation of justice is a serious threat to the existing judicial system in the country. Concentrated efforts are required by the learned judges at all levels, lawyers, litigant public, witnesses, prosecuting agencies, public leader, media and the executive to combat the menace by strengthening the system of administration of justice. In his judicial work, a judge shall take all steps to decide cases within the shortest time, controlling effectively efforts made to prevent early disposal of cases and make every endeavour to minimize sufferings of litigants by deciding cases expeditiously through proper written judgments.”
Another point to focus in the data collection should be the hierarchical structure of the courts with the Supreme Court of Pakistan at the top followed by the Federal Shariat Court and then the High Courts. This compartmentalization of data will prove to be highly beneficial by being accessible easily and speedily. This is particularly important in the context of human rights as having access to expeditious justice and a proper judicial system is provided by the International Covenant on Civil and Political Rights (ICCPR). The Article 14(3) of ICCPR states that: “In the determination of any criminal charge against him, everyone shall be entitled to . . . be tried without undue delay.”
Similarly, this right is also protected by the Universal Declaration of Human Rights (UDHR). Article 8 of UDHR caters for this by stating that: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Thus, Pakistan has an international obligation to provide for these rights otherwise it can be involved in serious violations of human rights.
Reverting to the issues with courts specifically, there is also a shortage of judges themselves. This problem has been going on for quite some time now. The High Powered Law Reform Committee Report (1974) and the Law Committee for Recommending Measures for Speedy Disposal of Civil Litigation (1978) both recommended an increase in the number of judges. In 1997, a commission came together and in its report on the reform of the criminal justice system also proposed to balance out the workload with a multiplication in the number of judges in the courts. It also suggested that the state may back this expansion in the body of judges with appropriate funding. Among other recommendations put forward by the report were the increase in the number of courtrooms, necessary equipment, age of retirement of the judges so that more experienced judges stay in service for long, the training of the judicial officers, the incentives for the judges and the supervision of junior level judges by the senior rank judges to guarantee transparency and accountability in case of breach of law by these judges..
The rate of conviction in the cases heard by the courts is ridiculously low, amounting to only 5 to 10 percent. The judges are unsuccessful in convicting not only in the low profile cases but also crucial high-profile cases such as the Danish Embassy bombing case (2008), Lahore police academy attack (2009) and Islamabad Marriott Hotel bombing case (2008). There are numerous other examples as well and these low rates certainly have to do with the issues that have been discussed above but also with the evil of corruption that seems to be a common underlying theme of the criminal justice system of Pakistan. The prosecution is not saved from it. They make it extremely difficult for the proceedings to take place fairly. An Investigating Officer told a senior journalist on the condition of confidentiality of his identity that:
“Different rates are fixed for different natures of criminal cases to be submitted in the courts by the prosecutors. Sometime back, I was compelled to pay Rs 25, 000 to a prosecutor as I wanted to get my case challan passed. Without greasing the palm of the prosecutors, it is virtually impossible for IOs to get their case files passed by the prosecution. If you don’t pay the bribe, they will raise objections to create hurdles in your way.”
According to a report by Transparency International, the top corrupt institutions of the state are the courts and the police. As a matter of course, the court officials, especially of lower courts, indulge in malpractices given that they are severely neglected by the state. The government does not allocate appropriate funds or invest aptly in them. Mostly, the financing is concentrated in the apex courts. This is obvious from the difference between the overall conditions of the lower courts and the higher courts. This misappropriation of funds naturally interferes with the functioning of the courts and results in poor performance by judicial officials.
The dilemma faced by the Pakistan judicial system is that despite funding the higher courts quite adequately, the level of performance is still low grade. A plenty of judges of the higher courts were unwilling to take suo moto actions when the issues at hand were related to public functionaries till 2009. Even when the judicial officials initiate such actions, they are rarely to serve justice. They are used in high-profile cases or the ones that have been highlighted by the media significantly. This owes partly to the constant political or military intervention in the operations of the judiciary. Some would say that the judiciary becomes a puppet in the hands of external influences and loses its independence which is vital for the dispensation of justice.
It is pertinent to state here that the flawed legislations also play a part in the malfunctioning of the courts. These dated laws are not helpful at all, rather they are a hindrance to the little progress that the judicial system is trying to make. It is not possible for one institution of the state to advance forward if others are pulling it back. All the branches of the government need to work in coherence with each other in order to improve the all-around state of affairs. The laws governing the courts are very complicated and, for one reason or the other, often become a source of abuse of these laws.
Finally, there is a pressing need for active communication between the public and the judiciary. This is necessary to build trust of the people in the establishment. This may be done by making the courts’ system more citizen-oriented. At present, there are very few public information centres and there is even less awareness among the general public about these centers. Gradually, the courts are beginning to publish more information for the public by creating information technology directorates and setting up websites. According to the Law Report Act (2002) judgments of the courts should be issued as well. The courts are also required to publish reports about their performance once a year. The quality of these reports needs to be made better so that it is easy to keep a track of the working of the courts.
It is paramount that Pakistan deals with the issues of corruption and maladjustments in its different institutions including that of the prisons with the aim of finally turning the corner and having a smooth-running justice system. The situation in Pakistan’s prisons is so atrocious because of overcrowding and poor management that the whole purpose of the rehabilitation of the prisoners is utterly defeated. The staff in these prisons need capacity development to cope with the massive numbers of inmates. According to a report by the International Crisis Group, the prisons are filled with almost 33,000 more prisoners than the permitted capacity. Around 65% of these prisoners are still on trial and have not been convicted yet. On account of terrorism, that had filled the state with terror and continues to be menacing till this date, the prisons have been jammed with the suspects of terrorism.
Behind the bars, these suspects are subjected to abuse which includes extrajudicial killings. The inmates are not only exposed to mistreatment by the prison authorities but other inmates too. This is extremely problematic since there is no segregation among them at all. The high-level criminals are kept together with the low-level ones and mere suspects of crimes. Even children are detained along with such serious offenders of law. This unauthorized policy of putting juveniles in prisons without taking appropriate measures to ensure that they are not left unprotected in such a vicious environment should be reformed promptly. Implementation of the legislation already passed, such as the Juvenile Justice System Ordinance, is needed considerably.
It is important to talk about other vulnerable groups in the context of prisons, for instance, women. A report on the conditions of women prisoners was submitted in 2020 by the Human Rights Ministry of Pakistan. The report was called “Plight of Women in Pakistan’s Prisons”. The report not only established that prison related laws in Pakistan are not at par with the international standards but also found that the laws in place to protect women in prisons are repeatedly ignored by the authorities. Just as their male counterparts, approximately 66% (out of a total of 1,121 women) the women detainees were still on trial. Moreover, three hundred plus women were locked up outside of their districts which makes it extremely difficult for their families to visit them. Countrywide, there were only twenty-four women health care workers who were available to females in prisons full time. As stated by the report, one hundred and thirty-four women had their children with them. The age of such children should be five years but some nine to ten years old children were also accompanying their mothers. In 2020, as a conservative estimate, almost one hundred and ninety-five children were living in prisons. According to Human Rights Watch:
“Pakistan needs urgent and comprehensive prison reform, with a particular focus on the rights of women, children, and at-risk prisoners”
Drug use is also widespread in the prisons and poses an additional threat to the rehabilitation process of the detainees. The drug-addicted inmates, because of shared needles and unprotected sexual intercourse, are much more susceptible to transmitting and subsequently acquiring diseases like acquired immunodeficiency syndrome (AIDS). This is especially concerning since almost 40% of the inmates in Pakistan’s prisons are involved in drug usage.
According to an assessment of injection drug users in four different cities of the province of Punjab, about 80% of them had been to prison at some point in their lives. Out of those 80 percent, around 56% took drugs while they were in custody. Among those 56 percent, almost 70% were people who injected drugs. As reported by another study performed on five thousand inmates present in the jails located in Lahore, one hundred of them had human immunodeficiency virus (HIV) which may lead to AIDS, if left untreated.
A different study which was conducted in 2012 on a total of 1,198 prisoners revealed that around one hundred and eighty of them had used opium and about one hundred and ninety-two of them had used heroin. Lastly, almost one hundred and forty-eight of those inmates had injected drugs when they were in prison. This predicament stems from a general negligence towards the health and wellbeing of the people in prisons and it should be dealt with urgently.
All in all, very little is done to help the inmates rejuvenate. There is also an absence of coordinated educational programmes and recreational activities for the prisoners. The young people in the prisons need such programmes in order to become a working part of the society after getting out of these prisons. The Society for the Protection of Rights of the Child (Sparc) held an event in 2020 primarily focusing on a project by the United Nations Development Programme called “Economic Rehabilitation and Reintegration Support to Young People in Prisons”. Much attention was brought to the fact that the prisons in Pakistan are not being successful at serving as “correctional facilities”. It was stated that the reason behind no existing programmes for the youth present in the prisons of Pakistan is a general lack of specialised staff having adequate awareness of such individuals’ rights. Such programmes help them to get on with their normal lives which is why they should include vocational education, distance learning programmes and psychological therapy.
A spokesperson for Sparc also disclosed some statistics of the prisons situated in the city of Karachi and stated that:
“In Nov 2019, there were approximately 9,500 prisoners in four prisons of Karachi — Central Prison (4,956), District Prison and Correctional Facility in Malir (4,196), women’s prison (131), Youthful Offenders’ Industrial School Karachi (121). A majority of this population consists of undertrial prisoners (82 per cent) detained under minor and bailable offences”
One of the major causes of the distressing situation of the prisons in Pakistan is the rigid stance of the authorities on granting bail, even to children. The bail laws put considerable limits on the release of detainees by fixing absurd bail amounts which most of the inmates are not able to pay. The judicial officials do not allow the prisoners to be released on bail very frequently either. A lawyer from Pakistan, speaking to Human Rights Watch, told that:
“Judges don’t cooperate with us in bail. They regard the accused as habitual offenders, and usually won’t reduce surety.”
This unwillingness to grant bail on the part of the judges further contributes to the problem of overcrowding in the prisons. The reluctance to let the prisoners out of custody is not restricted to bail but extends to the granting of probation and parole as well.
In Pakistan, probation is usually handed down while sentencing and parole after the sentence has been given to the individual. Given the awful conditions of the prisons in Pakistan, these should be used as a substitute for the imprisonment of the lawbreakers but unfortunately, the provincial Directorates of Reclamation and Probation are not playing their part in the criminal justice system of Pakistan efficiently. Their basic framework is poorly constructed, they lack sufficient resources and there is not an inclination towards bettering this system as it may not sit well with some sectors of the public as well as the government.
Generally, a probation officer is required to be incharge of the released individuals who keeps a watch on them and further helps them to rehabilitate themselves. This officer also is ought to present the court with a social investigation report (SIR) which is composed of details about the individual such as his character, description of his offence, home background and other information which may prove vital in deciding whether to grant him probation or not. This is not being complied with and Pakistani courts put individuals on probation without assigning a probation officer the task to formulate a SIR. This may be due to a limited number of probation officers at their disposal or simply a lack of the amount of time that an officer takes to come up with such a report.
In addition to that Case Committees, created to supervise and give suggestions regarding the cases of probation in their districts, are to meet one time every 3 months. These meetings rarely take place. The Criminal Justice Coordination Committees have largely taken over the working of these Case Committees but the involvement of probation officers in the former committees is little to none. Whatever the reason may be, it is important that this is revisited resulting in securing a higher quality system.
Over and above that, under the Pakistan Probation of Offender Ordinance, probation is not even available if the individual has committed a heinous crime, even if it is his first time. The law is also more open to granting probation to females than males. For instance, females can get probation if they have been engaged in any offence exempting those that may be punished with a death sentence. This is not the case with males who may be deprived of probation if they have committed heinous crimes, as mentioned earlier such as kidnapping or intentional causing of hurt etc.
Similarly, the laws relating to parole need to be reformed as well. These laws include the Good Conduct Prisoner’s Probational Release Act (1926) and related legislation. Pursuant to them, the individuals under parole should be employed, at the very least, 45 miles away from their immediate families. They can only meet their families after they have completed 6 months of their parole by taking casual leave. This is in clear contravention of the right to family life and fails to achieve the desired outcome of the reinsertion of the person into the community.
The funds allocated to this sector are not sufficient at all. During 2014 to 2015, the budget for the probation department in the province of Punjab was only 116.078 million rupees. This was roughly 1.54% of the budget for the prisons department which was 7.5 billion rupees. Likewise, the budget for the year 2013 to 2014 for the prisons department in the province of Khyber Pakhtunkhwa was 1,268 million rupees while that of the probation department was only 31.67 million rupees. This shows that Pakistan’s criminal justice system is heavily focused on imprisoning the convicts rather than correcting them ignoring the fact that building up the probation and parole system in Pakistan is inevitably going to strengthen the prison system. This becomes far more essential when there are children involved. These systems are helpful replacements of the detention system where these children are likely to be exposed to serious crimes more often than not.
According to a report provided by the Law and Justice Commission of Pakistan, there were one hundred and thirty-eight reforms suggested by the Commission in the legislation and only thirty-five of these reforms were put into effect. Twenty-seven were amended and then implemented while seventy-four were not implemented in any way or respect. This report further reinstated that owing to poor infrastructure and little manpower available to the sector, there is a decline in the number of individuals who are being released on parole because they can not be monitored properly. If it is appropriately funded and human resources are assigned equal to the need, an increased number of individuals being released on parole may be manageable by the department. There is also a lack of an adequate number of offices in respective districts making it more complicated for the parole and probation officers to supervise these convicts. On top of that, no SOPs are put into place for the committees working in the sector which leads to decreased efficiency.
Even between the two sectors of probation and parole, it is clear that the parole system is more poorly developed than the probation system. This is attributable to a lower number of officers available and a lesser amount of exposure accessible to the subsisting ones. These parole officers’ visits to the prisons are severely restricted and this acts as an obstacle in the coherent and orderly functioning of the parole department itself. If these parole officers are mandated to go to prisons once every month, this may improve the present facts of the matter drastically. This will assist them to communicate with the prison officials and make reports on prospective parolees which can be later submitted to the courts.
As compared to the other sectors of the criminal justice system of Pakistan, probation and parole are far behind in every aspect, be it training of personnel, human resource management or collection of empirical data. Partly because of the underdevelopment of the concept of criminal rehabilitation, the drawbacks of these corrections systems are also not coped with suitably. Many lawyers are not aware of these systems as authorities are leaving them unnoticed. The same goes for the public and the cognizance is extremely limited. These systems have mixed reactions which makes it even more difficult to make progress.
Furthermore, there is no real correspondence with the police sector or even the courts. There is no research being done in this regard at a state-level further contributing to the underdevelopment. No contemporary avant-garde techniques are being employed to make these systems work more productively. It wouldn’t be wrong to say that no modern technique is being applied at all. The overall process of granting probation and parole is pretty obscure and the standards need to be discussed in order to be re-evaluated.
After discussing the key issues in different sectors of the criminal justice system in Pakistan, it is safe to conclude that far-reaching alterations are needed as a means to put the system on a road to progression. At present, there is a desperate need to train the personnel, eradicate corruption, bring more transparency into the operations of individual sectors, coordinate the working of these sectors, manage resources in an improved manner, introduce up-to-date technologies and techniques, ensure speedy disposal of cases, conduct more researches, humanize the criminals and focus on implementing principles of equity and justice keeping in view the internationally accepted human rights.
Bibliography