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LEGAL TRAINING RESOURCE CENTER
Type of System
The basic framework of the Pakistan Criminal Justice System is found in the legislature, judicial and executive branches of the government. The legislature defines the law by determining what conduct is prohibited and establishes criminal penalties for those who violate the law. The courts interpret the law and determine whether it meets constitutional requirements. The executive branch plans programs, appoints personal and exercise administrative responsibility for the criminal justice agencies.
The state constitution gives the legislative branch the authority to pass laws. The legislature’s primary responsibility in the justice system is to define criminal behavior and establish criminal penalties. The law making function involves not only passing bills but also modifying and rejecting them. In addition to establishing definition of crimes, legislatures also pass laws governing criminal justice procedures. These include rules and regulations involving the laws of arrest, search warrants, bail, trial court proceedings, and sentencing. Although the legislature enacts laws, the higher courts establish most criminal procedures. The initiative to pass a law may come from a legislator, a criminal justice agency, a public official, or a group of citizens. A legislative committee first studies the issue. Then lobbyists and interest group add their influence and knowledge to the discussion and contents of the proposed bill. The respective legislative houses then vote on the bill. In Congress and bicameral state legislatures, if both the House of Representatives and Senate do not pass the legislation in its initial form, the bill goes to a joint legislative committee of both houses to work out a compromise. Both bodies eventually vote on a compromise bill. Once passed, the bill goes to the chief executive for his or her signature. If signed, the bill becomes a law. If vetoed, the bill is either dropped or sent back to the legislature for reconsideration.
Executive power rests in the President, Governors, Prime Minister, and Chief Ministers. They are often actively involved in criminal justice issues. They have extensive power of appointment; they appoint judges and heads of the administration agencies, such as police officials, commissioners, and chiefs. They have also the authority to remove administrative personnel. Another important executive function involves the power to grant pardons for crimes. The President can pardon the criminal, even if appeal of a particular criminal is dismissed from the higher appellate court.
The control and prevention of criminal activity and the treatment and reform of criminal offenders are carried out by the agencies of government. These agencies, created to maintain order, enforce the criminal law, provide emergency services keep traffic on streets and highways moving freely, and create a sense of community safety. First is the police department, the system and process of criminal justice depends on effective and efficient police work, particularly when it comes to preventing and detecting crime and apprehending and arresting criminal offenders. Former Chief Justice of the United States Supreme Court Warren Burger stressed that:
“The policeman on the beat or in the patrol car makes more decisions and exercises broader discretion affecting the daily likes of people every day and to a greater extent, in many respects, than a judge will ordinarily exercise in a week.”
“It is the part of the system that is most venerable, the most formally organized and the most elaborately circumstances by law and tradition. It is the institution around which the rest of the system has developed and to which the rest of the system is in large measure responsible. It regulates the flow of the criminal process under governance of the law. It is expected to articulate the community’s most deeply held, most cherished views about the relationship of individual and society.”
The criminal courts regulate the process by which the criminal responsibility of defendants accused of violating the law is determined. The court determines guilt and sentences defendants, while ensuring that the innocent are freed without any consequences or burden. The entire criminal court process is undertaken with the recognition that the rights of the individual should be protected at all times. An accused also has a right to due process, or to be treated with fundamental fairness. This includes the right to be present at trial, to be notified of the charge(s), to have an opportunity to examine the witnesses and to have favorable witnesses appear.
There are several different types of district courts, the Civil Court, Judicial Magistrate, Senior Civil Court, Addl. District & Sessions Court, and District & Sessions Courts. They often dispense routine and repetitious justice and are burden with a heavy responsibility. The district courts suffer from a lack of resources. The district courts suffer from cramped courtrooms, limited personnel, limited number of judicial officers, large number of pending cases, different tactic of lawyers and the habitual litigants, remain a critical problem in criminal justice administration. The High Court and Supreme Court are primarily appellate courts that do not conduct criminal trial. Questions of fact decided in the original court are not ordinarily reviewed in the appellate courts. These courts deal with procedural errors arising in the lower courts that are considered violations of rights guaranteed by the government or the constitution. The appellate court has the authority to affirm, modify, or reverse decision of the lower criminal court.
The prosecutor and the defense attorney are the opponents in what is known an adversary system, the prosecutor is the public official who represents the government and presents its case against the accused/defendant, who is charged with a violation of the criminal law. The prosecutor is either a district attorney or public prosecutor and is appointed by the government. The prosecutor is responsible not only for charging the accused with the crime but also for bringing the case to trial and to a final conclusion. The defense attorney on the other hand, is responsible for providing legal defense to the accused. This role involves two major functions:
(i) Protecting the constitutional rights of the accused, and
(ii) Presenting the best possible legal defense for the accused.
The defense attorney represents a client from initial arrest through the trial stage, during the hearing, and, if needed, through the process of appeal. Any person accused of a crime can obtain the service of a private attorney if he or she can afford to do so. The ultimate objection of the adversary system is to seek the truth, in this way determining the guilt or innocence of the accused from the formal evidence presented at the trial. The system ensures that the accused is given a fair trial, the relevant facts of a given case came on record, and that an impartial decision is reached.
Following the criminal trial, the offender enters the correctional system. The correctional system involves probation, jails, and parole programs for both juvenile and adult offenders. Complicating this system is the dramatic population explosion in the country, and minimum numbers of jails. Apart from that, jail system suffers from an extremely poor performance record, many offenders return to crimes shortly after spending being released. This is due to the lack of effective treatment and training programmes, poor physical environment and health conditions, and the fact that offenders in many institution/jails are subjected to violence from other inmates and guards.
Probation is a judicial action that allows the offender to remain in the community, subject to condition imposed by court order, under the supervision of probation officer. It enables the offender to continue working while avoiding the pains of imprisonment. In advance countries, social services are provided to help the offender adjust in the community; counseling, assistance from social workers and group treatment, as well as the use of community resources to obtain employment, welfare, and housing are offered to the offender while on probation. In some countries, community based correctional centers house offenders who are working or obtaining an education.
The state reserves the right through the criminal law to hold the criminals in jails. There the jail authorities classify the prisoners. The inmates are assigned to minimum, medium or maximum security classes. Maximum security cells have high walls, barred cells, and careful security measures and have the most dangerous prisoners. Medium class may physically reasonable more guarded cells, but their inmates require less control and therefore can receive more intensive treatment. Minimum security may have separate rooms and offer inmates much freedom and good correctional programmes.
In Pakistan, the parole system is not very established, but in other advanced countries, prisoners are selected for early release on the condition that they obey a set of restrictive behavioral rules under the supervision of a parole officer. The main purpose of early release parole is to help the ex-inmate bridge the gap between institutional confinement and a positive adjustment within the community. After their release, offenders are supervised by parole authorities who help them find employment, deal with family and social difficulties, and gain treatment for emotional or substance abuse problems. If the offender violates a condition of community supervision, parole may be revoked and the parolee may be sent back to jail for completion of his confinement period. In the United States, about 40% of all inmates receive mandatory supervised release.
- 2007 Prison Population: 95.016 for a population of 164.0 million. 74.4% are pre-trial detainees or remand prisoners.
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