Every now and then, there are news items showing renewed interest in reforming the criminal justice system in the country. Every incumbent Chief Justice of Pakistan and every new government makes promises to bring in ‘reforms’ to fix the system. While often the promises are well intentioned, but when the ‘real’ issues are examined, either the commitment wanes, or the ‘vested’ interests take over the zeal to take corrective measures.
There are many issues that upend the efforts to reform the system. In the first place, the mindset to ‘reform’ the system is perfection-oriented and wishes to address the issue in one go. The problem with this perfection-oriented mindset is that it does not believe in incremental improvement and pompous words like ‘reform’ set the expectations’ level high and any practical input based on experience of practitioners get little or no attention. Secondly, the thrust of most so called ‘reforms’ is on introduction of law reforms of substantive and procedural in nature. This is quite a linear approach. In a country of over two hundred and forty million people, scales are involved; it is, therefore, important to look at managerial and administrative aspects of the issues that affect the working and functioning of the criminal justice system. One of the most important areas that must be considered while initiating any meaningful ‘reform’ is the supply side of the criminal cases in the criminal justice system. The instant write up is going to highlight how the supply side of the criminal cases is at the heart of ‘reforming’ criminal justice system; some relevant issues are:
- Ownership of the Criminal Justice System
The issue of ownership of the criminal justice system is at the heart of all the discourse about reforms. It has two dimensions. First is the issue of the responsibility of criminal justice system: whether it is the responsibility of the federal or the provincial government? Second is the issue of ‘organizational approach’ of the criminal justice system that only looks at the issue in terms of organizations of police, prosecution and judiciary; this organizational look simply ignores the ‘systemic’ aspects of the matter. It may be noted that the roots of the first issue are in the constitutional scheme that keeps the criminal law, criminal justice and law of evidence as ‘concurrent’ domain implying that the criminal justice system is the shared responsibility of the federation as well as the provinces. The shared responsibility ideal, however, is not endorsed by the practice that sees clearly that ‘law and order’ is a provincial subject, hence, in practice, there are two types of criminal justice systems in Pakistan: one of each province and the other of the federation. So every talk about reforming the criminal justice system is dependent on ascertaining which criminal justice system is to be reformed. This ownership issue is further complicated by the bureaucrats who are mostly non-specialists and are most interested in maintaining the status quo than in changing it. Insofar as the second issue is concerned, the ‘organizational approach’ is hierarchical in nature and often leads to asymmetrical relationship of the actors of the criminal justice system that leads to little or no synergy. Anyhow, the ownership of the criminal justice system is a must before any meaningful contribution towards improving the system could be made.
- Pre-trial Strategies
The substantive criminal law is chiefly covered under the Pakistan Penal Code, 1860 i.e., the major criminal law of the country. Despite claims of excessive legislation, it is outdated and it seldom addresses issues related to service delivery to the citizens. On the other hand, the criminal procedure that shapes the working of the criminal justice system is mainly contained in the Code of Criminal Procedure, 1898. It must be noted that the legislation is archaic and is trial centric and heavily relies on judiciary for crime control and public order. There is a strong case to introduce pre-trial strategies in the law like plea-bargaining, alternate dispute resolution and conferring powers to police and prosecution to cancel false and frivolous cases. Introducing pre-trial strategies is likely to open up the possibilities for better service delivery and redress of grievances of complaints of citizens. For this, the law must be amended and carefully craft pre-trial strategies that should ensure provision of efficient and effective justice services. To underscore the importance of the pre-trial strategies, as an example, the data of registration of criminal cases (i.e. First Information Reports) by the Punjab Police may be examined. In 1947, total registered crime was 47,359 which grew incrementally till 2022 to 6,97,123. This, however, doubled in 2023 to 1,110,531. This increase in registration of crime should not be confused with the incidence of crime, which was incremental. In the meantime, however, the resources of the police and prosecution did not double and the same number of officers had to deal with double the workload. This has affected the whole criminal justice system. While it has, almost, perfected the recording of crimes, it has choked the criminal justice system that does not offer pre-trial strategies.
- Complaint Management
IT based policing has almost re-oriented the working of police especially in the Punjab. Calls on 15 and on virtual women police stations have substantially improved the logging and monitoring of the complaints to police. The complaints to the police are not only confined to heinous crimes but also to large number of civil, commercial, business, family and social issues. These complaints are potential criminal cases and must be properly channelized to ensure that the complaint redress is designed in a way that it must result in resolution to the satisfaction of citizens. The linking of complaints management system with pre-trial strategies can help minimize the burden on criminal justice system.
- Registration of Criminal Cases
The registration of criminal cases in civil disputes is preferred by an aggrieved person as it is somehow more ‘efficient’ and also results in use of force by police (in form of prompt unlawful arrests). The efficiency part of the criminal justice was duly acknowledged by the Global Rule of Law Index, 2024, that ranked the criminal justice system of the country at 98 out of 142 countries whereas it ranked the country’s civil justice system at 129 out of 142. Besides, the court driven orders under section 22-A of the Code of Criminal Procedure, 1898, are amenable to be misused as many a party get cases registered against their complainants, witnesses and police officers. In principle, the registration of a criminal case is an executive function and on the touchstone of article 175 of the constitution, there is no valid reason to continue with powers under section 22-A of the Code of Criminal Procedure. Anyhow, the registration of cases must be done more professionally as it affects the perception of security and law and order and unnecessary criminal cases burden the criminal justice system in terms of costs and inefficiencies.
- Cancellation of Criminal Cases
The victim of a crime is fully entitled to get his case registered. Conversely, the victim of a false, frivolous and fexatious case is also fully entitled to be cleared from the false case as early as possible. The present scheme of cancellation of a criminal case, however, is unnecessarily cumbersome and involves judicial approval besides the executive approvals/processing from police and prosecution. This makes the exit from the criminal justice system difficult and emboldens blackmailers and people who abuse processes of criminal justice. This may require law reform in terms of providing an independent legal provision enabling exit of an innocent person from the criminal justice system. Till the time that legal reform is enacted, the practice of disagreeing with cancellation reports of police by the judiciary without assigning detailed reasons may be revisited through examination by the constitutional courts that often provide leadership for citizen-centric interpretation of law.
- Dropping Prosecutions
The prosecutors in the Punjab do not have specific powers to cancel or drop a case on the ground of insufficiency of evidence. This power is distinct from the power to withdraw prosecution that is available in section 10 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, which again is tied to the ‘consent’ of the court. The ‘consent’ of the court is not structured and there is good reason to review this arrangement as the whole purpose of dropping cases is to minimize the burden of court. There is need to provide a separate remedy of review of such executive decisions by a committee of senior prosecutors to keep the matter in executive domain in line with the spirit of article 175 of the Constitution of Pakistan.
Concluding Remarks
The supply side of criminal cases not only affects working of police, prosecutors and courts, but is also the single most important factor in expanding prison population. More criminal cases of the financial and civil matters result in less trust in civil justice system. Besides, the criminalization of civil disputes provides the ‘smart’ party an opportunity to introduce coercive power of the state through police for settlement of civil disputes: this is one of the major causes of corruption and highhandedness in police. More cases in criminal courts also mean more investment of the government on criminal justice system. For example, the costs of investigation, prosecution and litigation keep increasing with the increase of supply of criminal cases. Along with criminal law reforms, this matter also deserves proper attention from the leadership of the justice sector in Pakistan that can set standards through dynamic case law and by increasing accountability of actors of the criminal justice system.