Sensu stricto (strictly speaking), there are no models of the criminal justice. Even so, the criminal justice system of a country, on close examination, may be found following a value or set of values that define its underlying ideology, which may punctuate at every stage of the criminal processes involved in it. The criminologists prefer to style these underlying ideologies as models. The purpose of the instant article is to heuristically examine the models of criminal justice, and the criminal justice system of Pakistan within the theoretical framework of these models. In this regard, the article is divided into two parts: part one presents the models of criminal justice, whereas part two briefly contextualizes Pakistan’s criminal justice system with reference to these models.
1. Models of Criminal Justice
Following three models of criminal justice may be interesting in the context of Pakistan. A brief résumé of each may be useful as an introduction.
a. Packer’s Models of the Criminal Process
Herbert L. Packer was a Professor of Law at the Stanford University in the US. His chef d’oeuvre ‘The Limits of the Criminal Sanction’ was written in 1964. In his writing, he wanted to help ‘perceive the normative antinomy at the heart of the criminal law’ whereby his chief purpose was to explain the philosophy of criminal law. For this purpose, he used two competing claims of values as two models about the criminal ‘process’ (and not as criminal justice). First was the Due Process Model and the other was the Crime Control Model. He presented the two models on purely academic grounds and to prove that he used all the disclaimers: that the models were just presented as ‘an aid to analysis’ and not ‘as a programme for action’; that ‘he wanted to give operational content to a complex of values underlying the criminal law’; and that the actors in the criminal justice system — the lawmakers, judges, police, prosecutors, defence lawyers — may not ascribe to any of his given models in totality. Griffiths summarized the two models in his 1970 research article ‘Ideology in Criminal Procedure or a Third Model of the Criminal Process’ in the following words:
“The Crime Control Model is based on the proposition that the repression of criminal conduct is by far the most important function to be performed by the criminal process. Criminal conduct must be kept under tight control in order to preserve public order. The primary concern is efficiency. The process must produce a high rate of apprehension and conviction, and must therefore place a premium on speed and finality. It should throw off at an early stage those cases in which it appears unlikely that the person apprehended is an offender and then secure, as expeditiously as possible, the conviction of the rest. To this end, a quick, accurate and efficient administrative fact-finding role carried out by police and prosecutors should predominate over slow, inefficient, and less accurate judicial trials; and interference with this administrative process should be kept to an absolute minimum so as not to compromise the dominant goal of repressing crime.”
About the other Model, he stated:
“The Due Process Model seems radically different. Its system of values revolves around the concept of the primacy of the individual and the complementary concept of limitation on official power. Because of its potency in subjecting the individual to the coercive power of the state, the criminal process must be subjected to controls that prevent it from operating at maximal efficiency. Power is always subject to abuse, and the Due Process Model implements anti-authoritarian values by limiting state power.”
b. Griffiths’ Family Model
As noted above, in 1970, John Griffiths of the Yale Law School attacked the Packer’s Models of the Criminal Process. He opined that quintessentially Packer had only offered one model, which was based on two alternate responses to the basic object of putting the offender ‘in jail’… hence, punishment was the sine qua non of the theory underlying both the models. He argued that the two models did not cater to victims’ perspective. He went as far as labelling the two models as Battle Model. He argued that Packer’s model hinged on battleground mentality between the individual and the state. He offered his Family Model instead, which he illustrated in the following words:
“When a parent punishes his child, both parent and child know that afterwards they will go on living together as before. The child gets his punishment, as a matter of course, within a continuum of love, after his dinner and during his toilet training and before his bed-time story and in the middle of general family play, and he is punished in his own unchanged capacity as a child with failings (like all other children) rather than as some kind of distinct and dangerous outsider. The ideology of family-life on the place of punishment is contained in the straightforward and simple reply a parent gives to a child who is anxious about the fundamental relationship because of his guilt at an offense or his reaction to its punishment: of course I love you, but just now I don’t like you.”
He insisted that his proposed Family Model will use different vocabulary of categorizing conduct as a crime from the one used by the Battle Model of Packer.
c. Roach’s Models of Victim’s Rights
The third approach in relation to theory of criminal justice was advanced by Ken Roach, Professor of Criminology at the University of Toronto in his 1999 article ‘Four Models of the Criminal Process’. His views may best be summarized in his own words:
“Normatively, my punitive model of victims’ rights affirms the retributive and expressive importance of punishment and the need for the rights of victims to be considered along with the rights of the accused. My non-punitive model of victims’ rights attempts to minimize the pain of both victimization and punishment by stressing crime prevention and restorative justice. Discursively, both punitive and non-punitive models of victims’ rights promise to control crime and respect victims, but the punitive model focuses all of its energy on the criminal justice system and the administration of punishment while the non-punitive model branches out into other areas of social development and integration. In short, the construction of models provides an accessible language to discuss the actual operation of the criminal process, the values of criminal justice, and the way that people think and talk about criminal justice.”
Roach’s punitive and non-punitive models of victims along with Due Process and Crime Control models of Packer form the four models of the criminal process that have attracted discursive analyses by criminologists and lawyers alike.
2. Criminal Justice System of Pakistan and the Models of Criminal Process
The term ‘criminal justice system of Pakistan’ may not accurately reflect the factual and legal position on the ground. On the legal plane, in the pre-Eighteenth Amendment scenario, the law and order was the exclusive domain of the provinces and the criminal law, criminal procedure and evidence (by virtue of item one of the defunct Concurrent List to the Fourth Schedule of the Constitution) exclusively fell in the remit of the provinces as far as their legislative competence was concerned.
On the appellate side, however, the leave to appeal to the Supreme Court of Pakistan on exceptional legal grounds was provided in the Constitution coupled with Article 45 powers of the President regarding clemency. In the post-Eighteenth Amendment, the scenario has changed. While the appellate powers of the Supreme Court and the clemency powers of the President are still intact, the Concurrent List has been abolished and the legislative competence related to criminal law, procedure and evidence now belongs to the federal and provincial legislatures alike by virtue of Article 142 of the Constitution of Pakistan.
Article 143 of the Constitution, however, provides that the federal criminal law will prevail over the provincial law in case of contrariness between the two legislations. With this constitutional context, it may be noted that on the factual side, the administration of criminal justice begins, and ends, in a province or a territory.
A cursory look at the Constitution of Pakistan reveals that it is loaded with clauses that evince propensity towards the due process model in which, at least in theory, the primacy of individual is accorded more weightage than the state.
In these circumstances, a cursory look at the Constitution of Pakistan reveals that it is loaded with clauses that evince propensity towards the Due Process model in which, at least in theory, the primacy of individual is accorded more weightage than the state. In the first place, Article 4 of the Constitution of Pakistan provides for an ex post facto clause that requires a conduct to be criminalized formally before anyone could be held responsible for it. Likewise, Chapter 1 of the Constitution that deals with the Fundamental Rights has specific provisions that fortify the Due Process model: Article 9 (the security of person), Article 10 (safeguards as to arrest and detention), Article 10-A (due process clause), Article 12 (prohibition against retrospective punishment), Article 13(a) (prohibition against double punishment), Article 13 (b) (prohibition against self-incrimination) and Article 14 (dignity of man). On the other hand, the Constitution of Pakistan has emergency provisions (Articles 232 to 237) that provide strength to Crime Control model in exceptional circumstances. The punitive model for victims as proposed by Roach is also available in the legal framework (like Section 544-A of the Code of Criminal Procedure, 1898, for victims of criminal justice and Section 35 and 35-A of the Code of Civil Procedure, 1908, for civil justice). Likewise, the evidence for non-punitive model for victims is also available in the legal framework in form of corrections scheme provided in the Code of Criminal Procedure. It may, however, be noted that the evidence for punitive and non-punitive models for victims is sporadic and fragmentary. In the same manner, the crime control model can only upend the Due Process model in exceptional circumstances.
With this state of affairs, it may be safe to infer — may be unconsciously — that the criminal justice system of Pakistan is more attuned to the Due Process model as postulated by Packer. In absence of any empirical evidence, if the inference of proximity to the this model is assumed to be correct, then the apparent contradictory aspirations of Pakistan as a strong state and as a democracy do not reconcile with the legal framework as embodied in the Constitution of Pakistan. Being a strong state may need following the Crime Control model (especially with reference to terrorism); on the other hand, being a democracy (especially with reference to human rights) requires following Due Process model. The reconciliation of the contradictory aspirations of Pakistan and its criminal justice system may be a point of departure for scholarly research on this point; quality research on the topic may unlock future thinking on the subject.