The Constitution of Pakistan 1973 is federal in nature. It divides the areas of legislative competence between the federation and the provinces; all the executive action is then linked with the legislative competence. Following this scheme of work, the law and order falls within the domain of the provinces. The justice system that primarily deals with the law and order is chiefly parked in the criminal law and procedure. It is, therefore, imperative that the issues related to the criminal justice system be identified, and their contextual analysis be carried out; the instant write-up is an essay in this direction.
The Criminal Justice System
The criminal justice system in the Punjab province may be taken as basis of the analysis as it is the most developed in Pakistan. The criminal justice system of the province comprises investigation agency, prosecution agency, courts and the corrections organizations. Barring the courts, the governance of the investigating, prosecuting and corrections organizations is with the Government of the Punjab, where it is organized along the colonial pattern and is locked through legislative scheme. A brief analysis of each component is as follows:
A. Investigation Agency
The chief investigating agency of a province is the police organization. The police organization in Punjab is constituted under Article 7 of the Police Order, 2002. The organization is linked to the Government of the Punjab legally through Article 9 of the Police Order, 2002 that vests the superintendence of the organization with the Government of the Punjab. This superintendence is exercised through the Secretary, Home Department of the Government of the Punjab. Section 3 of the Police Act, 1861 provided for a similar superintendence clause to control the police. In contradistinction to the superintendence, the administration of the police is with the Inspector General of Police (IGP) under Article 10 of the Police Order, 2002. The reform-minded police officers tried to get rid of the superintendence clause by inserting an ex-officio Secretary to the Government clause through Article 11 (5) in the Police Order, 2002. The net result of the legalese stated above is that the IGP is not an independent office and is under the control of the government; this, in management terms, means that the authority is with the superintending office and the responsibility is with the administrating office. The mismatch of the authority and the responsibility is one of the root causes of many a problem in the criminal justice system. The cardinal principle of public policy that those who enjoy authority shall be responsible has been defeated due to presence of this superintendence clause; the point of departure for any meaningful reform in the police organization is to get rid of this superintendence clause, which entrenches the generalists over the specialists.
B. Prosecution Agency
The prosecution department is an evolving new component of the criminal justice system. The prosecution has not been separated from the investigation agencies at the federal level. However, this is not the case with the provinces. The Punjab Criminal (Constitution, Functions and Powers) Act, 2006 constituted the prosecution organization in Punjab. Section 5 of the Act provides for the superintendence of the organization by the Government through Secretary, Prosecution Department. Like the police law, the administration rests with the Prosecutor General who is a specialist of the criminal law and procedure. Through this device, once again, the independence and professional input of the specialists is kept at bay from the decision-makers. The responsibility to prosecute lies with the Prosecutor General, but the authority to deal with his powers rests with the Secretary, Prosecution Department.
C. Corrections Organizations
During legal proceedings and after the convictions, two types of modalities are employed worldwide: corporal and non-corporal punishments. While the major organization that deals with the corporal punishment in form of incarceration is the Jail Department, the non-corporal punishment is dealt with by the Directorate of Reclamation and Parole. The Jail Department is constituted under the Prisons Act, 1894. Section 5 of the Act provides for superintendence of the prisons by the Government. In case of the Punjab, the superintendence is exercised by the Secretary, Home Department. The administration of the prisons is with the Inspector General of the Prisons. Similar pattern of mismatch of the authority and the responsibility, as is prevalent in the case of police and the prosecution, can be discerned in the case of prisons too. Likewise, the Directorate of Reclamation and Parole is placed under the control of the Secretary, Home Department; accordingly, the institutional growth of the reclamation and parole directorate has, for obvious reasons, remained stagnant.
D. Forensic Science Agency
The case of forensic science agency is no different. The Punjab Forensic Science Agency Act, 2007 provides, in its Section 5, the superintendence clause that empowers the Secretary, Home Department to control the forensic agency. Section 6, like the police and prosecution laws, provides that the administration of the Punjab Forensic Science Agency rests with the Director General. The Director General is responsible for all the professional matters of the agency, but the Secretary, Home Department exercises the real authority as the Director General is under his administrative control.
The governance of the criminal justice system is controlled by the superintendence clause in the laws related to each organization. The control is not limited to superintendence claim only, but it is buttressed by the budgetary, administrative and the overall powers under the rules of business and allied delegated legislation. This has also resulted in accumulation of some unaccounted powers with the superintending offices. For example, the arms licences are controlled by the Home Department, whereas, the Inspector General of Police, in the estimation of the public, is the person, who is supposed to control the arms proliferation in the society. The database of the arms licences is placed beyond the reach of the officer empowered to check the proliferation. The purpose of highlighting the points is to state that the overall scheme and architecture of the governance of the criminal justice system is in the hands of non-specialists, and the accountability lines are drawn in consonance with the colonial pattern. This has to substantially change, if any meaningful improvement is desired.