In assessing the comparative successes and failures of the criminal court systems on the United Kingdom and Pakistan, it is important first to quantify the standards of comparison between the two systems. In other words, the question of what constitutes positive observations and negative observations when assessing the systems. There is a limited body of scholarly literature that addresses the standards by which any criminal court system may be judged, but by examining the assessment of these courts, one can derive the standards by which the courts were evaluated.
The institution called US Aid has issued a final report upon the rule of law in Pakistan. In this report, the authors codify a number of standards by which the criminal courts of Pakistan may be assessed. One of the key areas of examination, according to this source is the sources of legitimacy of the criminal court system. (Hoffman & Berg, 2008)In the case of Pakistan, the Source of Legitimacy derives from three places. The first of these is Islamic Practices. (Hoffman & Berg, 2008)As a nation, Pakistan consists of an Islamic majority, and to the extent that the law is not separated from religious practice, the Koran, and related religious documents serve as a source of legitimacy for acts and procedures in the criminal courts(Hoffman & Berg, 2008). A second point of origin for legitimacy for the Pakistani criminal court system is traditional practices(Hoffman & Berg, 2008). These are derivations of cultural and historical practices of law which can be reasonably codified into practicable rules and procedures. These practices are complicated by frequent changes in the governing body(Hoffman & Berg, 2008). Each of these intermittently imposed militaristic and democratic rule and procedures in the region. The final source of legitimacy, according to this assessment is the body of common law. (Hoffman & Berg, 2008) This refers to British common law, as the nation derives it legal history largely from this source. The report indicates a dim view of this polyglot origin of the rule of law noting,
These three forces, British colonial rule, intermittent democratic law making, and substantial period of military issued ordinances have in complex ways created a framework of laws that is difficult to apply, and which for many Pakistanis, is perceived as an obstacle to justice. (Hoffman & Berg, 2008)
A second are of examination used to assess the rule of law in Pakistan is judicial independence and accountability. (Hoffman & Berg, 2008) In this area, the report indicates a historical deficiency in the ability of the judiciary to act independently of the executive. (Hoffman & Berg, 2008)The report describes the appointment of high-level judges as “a product of back-room maneuvering by various interests rather than an open process.” (Hoffman & Berg, 2008) The constitution, which provides that the President select the Chief Justice of the High Court, and the two together agree on other Justices, has been in large measure ignored. In the case of the lower courts, appointment policy is even harder to pinpoint. The lower court judges are selected in a civil-service-type examination process, leading to appointments to overcrowded courts, and relegating them to long working hours and substandard pay and conditions. (Hoffman & Berg, 2008) The report also notes that judicial independence is compromised through monetary means. The executive branch controls the budget of the Judicial, giving the executive significant influence through the “power of the purse.” (Hoffman & Berg, 2008)
A third standard by which the quality of the Pakistani court system is evaluated in the accessibility to and delay involved with the courts of law. (Hoffman & Berg, 2008) This reports sites significant delays in court hearings and a large pendency for the respective court jurisdictions. (Hoffman & Berg, 2008) Police responsiveness to court rulings is another standard by which the report assesses the rule of law in Pakistan. (Hoffman & Berg, 2008) The report notes that the Pakistani police are ill-equipped and ill-trained to deal with the massive amounts of domestic crimes such as murder, rape, robbery and theft. (Hoffman & Berg, 2008)The pure volume of such activities has overwhelmed the judicial system and severely undermined the credibility of the State in the eyes of the citizenry. (Hoffman & Berg, 2008)
A final area by which the criminal courts in Pakistan are judged in this report is the qualifications and expertise of legal practitioners (Hoffman & Berg, 2008). The verdict in this area for Pakistan is extremely poor. The legal profession is ill-prepared, unqualified, and does not enjoy esteem in the community in the nation of Pakistan. (Hoffman & Berg, 2008) In this area, as in most others, Pakistan receives a failing grade for the execution of the rule of law, owing to deficiencies in the court system, policing abilities and the qualification of advocates. (Hoffman & Berg, 2008)
A comparable review of the court system of the United Kingdom was completed in 2001 by Lord Justice Auld. Auld examines the criminal court system of the United Kingdom by going through the process on a step-by-step basis, addressing issues in every stage of the criminal justice process. (Auld, 2001) Auld includes a detailed description of the two-tiered system that divides minor offences from more major ones. He cites the Magistrate court’s authority o bring cases to the higher court as a function of common law reference to grand jury procedure. (Auld, 2001) Auld finds fault with the administrative organization of the magisterial courts. He notes:
Nicholas Stephens, the President of the Justices’ Clerks Society for 1999-2000, described the legal and administrative divide in the magistrates’ courts as creating a “leadership vacuum”. Put another way, it is not always clear where the boundary lies between the responsibilities of the bench and of the MCC or to whom the justices’ clerk is accountable in his different responsibilities. For example, the divide between ‘scheduling’ ofwork – the MCCs’ responsibility – and ‘listing’ of cases and case-management– magistrates’ and justices’ clerks’ responsibility – is not always easy. (Auld, 2001)
Auld also notes several deficiencies with the Jury selection process and the nature of U.K. juries. He notes that juries are selected from the electoral pool, which limits the pool of potential jurors by eliminating citizens in their early 20,s, ethnic minorities, and people who are of a mobile nature (renters, et.) (Auld, 2001) The author also notes a lack of codification of the right of trial by jury. (Auld, 2001) The report recommends a number of remedial measures to improve jury composition and participation. It is recommended that the source of jurors be expanded beyond the election pool to include other certifiable sources of personal data accessible by the state. (Auld, 2001) It is further recommended that compliance with jury summons be encouraged by an ad campaign highlighting the civic responsibility and possible penalties for non-participation if summoned. (Auld, 2001).
The organization of the judiciary is further examined for signs of inefficiency and inequity. The report recommends that court recorders be asked to serve in three-week blocks, and that rigidities in the current ticketing system be replaced. (Auld, 2001) Judges are also to be held accountable by periodic assessment, and allowed to remediate by making additional training efforts. (Auld, 2001)
Another area of scrutiny for the Criminal Justice system in the United Kingdom has to do with trial procedure and rules of evidence. One of the changes recommended by the report is an interval between the presentation of evidence and the beginning of the concluding speeches during which the officers of the court might review, and if necessary, alter the presentation form of evidence. (Auld, 2001) The report further recommends making modern technological forms of presentation available for the court in presenting speeches. (Auld, 2001) The report also recommends that the Judge, in instructing the jury, adopt more of a summary-based overview of the evidence and assure that the defense is given adequate voice. (Auld, 2001) Also, within the magistry, it is recommended that the judges be the sole arbiters of the law, conduct pre-trial hearings on their own, and be empowered to make binding rulings at law. (Auld, 2001)
The final area of scrutiny in this report is the system of appeals in the U.K. court system. Among the recommendations is a suggestion that the standards by which appeals are considered do not vary across levels of appeal. (Auld, 2001) The method of defendant’s appeal should be changed from a hearing to a brief-style appeal to the Crown Court. (Auld, 2001)
The tenor of this report seems to indicate that the legitimacy of U.K. courts is an established fact, and that they suffer from few of the deficiencies described in the Pakistani system. Whether this is actually the case can be determined by examining research more pointedly critical of the procedures and outcome of the U.K. criminal court system. Generally, these critiques are specific to particular parts, laws or incidents in the U.K. system, rather than any attack on the legitimacy of the structure of the whole.
Posner and Sunstein examine the standards by which criminal courts might be judged and offer their own assessment criteria. They view the issue on the context of utilizing the law and judicial judgment of foreign courts to enhance or supplement the decisions of American courts. Inherent in this discussion is a favorable evaluation of foreign jurisprudence, and a respect for the lawmaking process in these areas. (Posner & Sunstein, 2006) One of the conditions under which foreign decisions ought to be considered is referred to as the Judgment Condition. This supposes that the foreign government issued the questioned decision based upon private information of the state. (Posner & Sunstein, 2006). The Similarity Condition supposes that the foreign government is similar in the related characteristics to that of the United States. It is reasonable to assume that such a similarity ought to be considered before a court would choose to incorporate a foreign decision into that of their own. (Posner & Sunstein, 2006)
One case where an individual aspect of criminal law is assessed is the case in the evaluation of a 2002 law governing the confiscation of property obtained by criminal means in the United Kingdom. This evaluation, authored by A. Kennedy, summarizes the structure, purpose and results of this legislation upon criminal justice in the United Kingdom. The examination in this article divides the provisions of the law into several sections, and assesses its efficacy individually by section.
On the subject of the confiscation provision, the article concludes that the law is written well for the completion of its stated purpose. (Kennedy, 2007) The article notes that several requirements on the part of law enforcement are needed to effectively execute this aspect of the legislation. (Kennedy, 2007) Proper investigation and prosecution is necessary according to the author. (Kennedy, 2007) Legal expertise and leadership are also key components in the success of confiscation. (Kennedy, 2007)
In addressing the cash-forfeiture element of the law, the author qualifies it as a major success. (Kennedy, 2007) the author summarizes this observation in the following manner:
Overall, one may conclude that the expansion of the cash forfeiture provisions have been a resounding success. As with confiscation, it does not appear that the legislation requires any major amendment. In practice, the cash forfeiture system is a quick, cost effective means of forfeiting criminal proceeds. It requires minimal future revision to improve its efficiency. (Kennedy, 2007)
The civil-recovery element of the law has, according to the article, serious shortcomings. One of these is the dependence upon recommendation of law enforcement for civil recovery in the absence of criminal procedure. (Kennedy, 2007)Another critique is the slow and inefficient process of civil litigation for asset recovery. (Kennedy, 2007)
A simpler element of the law is the taxation provision of the law. Taxation has the advantage of being enforceable, even lacking evidence that the income in question was illegally obtained. While this provision was relatively rarely used, it was found to be effective. (Kennedy, 2007) The second application of the taxation clause is the use of tax evasion penalties to punish offenders whose acts were not proven in court, but who did not pay taxes on the income derived from those activities. (Kennedy, 2007)
The author concludes that the recent law has been a positive improvement over previous asset-confiscation strategies in the United Kingdom. While not perfect, the system appears to be effective for its purpose. (Kennedy, 2007)
Another critique of an aspect of the U.K.’s criminal courts was reported to the Ministry of Justice. The report was an evaluation of the 2004 Domestic Violence, Crimes and Victims Act. This report evaluated numerous elements of the law and assessed each one’s effectiveness. (Hester, & Westmarland et. al. 2008) The first of these provisions was the making of common assault an arrestable defense. The study concluded that on a qualitative basis, this provision received positive feedback. (Hester, & Westmarland et. al. 2008) The next provision evaluated was the criminalization of breach of protective order. This provision received less acclaim as many professionals within the criminal system thought it to be redundant. (Hester, & Westmarland et. al. 2008) Other provisions of this law were examined, most with positive qualitative feedback, but negligible quantitative data indicating effectiveness. (Hester, & Westmarland et. al. 2008)
More critical analysis is offered for the criminal court system of Pakistan. Lacking the basis of hundreds of years of common law, and legacy of democracy, the Pakistani court system has been subject to a far more critical assessment than has the British.
In “Democracy and Governance in Pakistan’s Fragmented Society” the author cast a critical view upon the court system of Pakistan. This article characterizes the judiciary as a “puppet” of the executive branch, whose integrity varies as the political winds blow. (Islam, 2001) In political times of military regimes, the judiciary was the mouthpiece of legitimacy for the military leadership. In eras where the democratically elected leadership prevailed, the era is marked by conflict between the executive and the judiciary. (Islam, 2001) The rifts became so significant that there was effectively two different governments, with the executive and judicial braches issuing mutually exclusive rulings and laws. (Islam, 2001) In the areas of case disposal and pendency, Islam agrees with the assessment offered by the US Aid analysis. He states:
Many legal experts believe that the case disposal remains slow. In November 1997, the Lahore High court alone had 65,000 pending cases. The shortage of judges may be a reason for this inordinate delay. The judges’ tendency to readily grant an adjournment has more to do with it. (Islam, 2001)
In the area of jury conduct, the assessment of Pakistan is not very positive. Islam’s sources rate Pakistan the worst of south Asian nations in terms of jury corruption and inefficiency. (Islam, 2001) The analysis also critiques the tenuous relationship between the rule of law and the Pakistani legal system. Cultural mores and religious tendencies to take the law into one’s own hand greatly limits the ability of the courts to become the sole arbitrator of law in Pakistan. (Islam, 2001) Islamic law takes precedence in cases of murder, rape, and robbery, while smaller offences are endemic and poorly punished. (Islam, 2001) Minor crimes such as traffic infractions, customs and tax declarations, falsification of public records and other offences are routinely committed without legal intervention. (Islam, 2001)
The public is totally alienated from the police and court system. (Islam, 2001) The systemic use of law enforcement for political oppression by fabricating evidence and bringing bogus cases has contributed to this condition. (Islam, 2001) Deaths while in custody are very common, and police and court officials complain constantly about the shortage of funds and facilities. (Islam, 2001) The article concludes with the assessment of Pakistan as the most corrupt government in the world, with a criminal justice system typical of corrupt regimes. (Islam, 2001)
In “Love and Elopement in Northern Pakistan”, the author examines one of the areas which has received the most criticism in the world of nations who are governed by Islamic laws, the area of criminal rights of female perpetrators and victims. While not specifically addressing legal procedure, this article details the anthropological development of common law as derived from Islamic theology with respect to relationships. (Mardson, 2007). The article also expands on the social mores of male sexuality and female modesty as they impact practice and custom in the region. (Mardson, 2007) The author also concludes that a relatively “liberalized’ view on love and sex prevails in the rural outpost of Pakistan, which is removed from the judgment of Pakistani culture at large. (Mardson, 2007)
Byrnes and Lister, et. al. argue that the institution of Martial Law in Pakistan in 2007 completely obviated any salutary record of criminal jurisprudence in the nation. (Byrnes, M., Lister, C. et. al. 2008) This article describes a human rights crisis in Pakistan owing to the usurpation of the already questionable system of criminal justice in Pakistan. (Byrnes, M., Lister, C. et. al. 2008) Citizens who sought relief through constitutional measures were rebuffed by the declaration of martial law, while hundreds of citizens were reported missing. (Byrnes, M., Lister, C. et. al. 2008) The authors describe the circumstances:
By October 2007 there were more than 35 individual cases and 7 constitutional petitions before the Supreme Court, encompassing hundreds of missing persons. A scheduled November hearing was pre-empted by martial law, and the newly constituted Supreme Court has not pursued these cases. The problem has not gone away; in December 2007, Pakistani human rights advocates estimated there were still 250 people missing since 2002, with three new incidents reported each week. (Byrnes, M., Lister, C. et. al. 2008)
The authors cite an order of the Musharif regime temporarily suspending the constitution and declaring martial law. Sixty out of ninety-seven judges were dismissed before the order could be challenged in court. (Byrnes, M., Lister, C. et. al. 2008) It is further noted that attempts by the judiciary to reestablish jurisdiction at the time were unsuccessful. The Supreme Court of Pakistan attempted to pass a law limiting the executive from actions that would compromised the judiciary, but the ruling was ignored. (Byrnes, M., Lister, C. et. al. 2008) When the martial law order was rescinded in December of 2007, it was done in a manner that continued the undermining of the rule of law. (Byrnes, M., Lister, C. et. al. 2008) The constitution was radically amended, and the actions of the government under martial law were codified as legal after the fact. (Byrnes, M., Lister, C. et. al. 2008) The authors conclude on the necessity of an independent judiciary, citing a long list of jobs whose proper execution requires an independent court system. (Byrnes, M., Lister, C. et. al. 2008) These jobs include the protection of human rights, the conducting of fair elections, the response to violence, such as the assassination of candidate Bhutto in 2007, and encouraging democracy in the long term. (Byrnes, M., Lister, C. et. al. 2008)
In 2008, the United States State Department released an annual assessment of Human Rights in Pakistan. Such an assessment is a reflection of the effectiveness of a criminal court system in controlling both the citizens of a nation and the other portions of the government. (Human Rights…2008) The report paints a dim picture of the state of human rights in Pakistan. It notes the reports of unlawful or arbitrary killings by the government in the year 2008, a continuation of several years of such conduct. (Human Rights…2008) There were reported over sixty cases where civilian confrontations with police resulted in their deaths, and over one hundred cases of civilian deaths in jail. (Human Rights…2008) Findings regarding disappearances and torture incidents also continued in 2008, in the face of judicial review of such acts. (Human Rights…2008) Arbitrary arrests and denial of fair and public trials were also routine in Pakistan in the year 2008. (Human Rights…2008) The reports cite a confusing jurisdictional pattern in the courts as a contributing factor to the lack of fair and public trials. It notes:
There are several court systems with overlapping and sometimes competing jurisdictions: criminal; civil and personal status; terrorism; commercial; family; military; and Shariat. The Federal Shariat Court, according to Article 203 of the Constitution, can be used to examine and decide whether any law is repugnant to the injunctions of Islam. The passage of the Women’s Protection Bill does not negate the possibility of Federal Shariat Court oversight in certain cases. The Federal Shariat Court could be used for any issue involving parts of the Hudood Ordinance not moved to the secular law provisions, including gambling, liquor possession and drinking, and fornication in the false promise of marriage. (Human Rights…2008)
The report criticizes the execution of fair trial procedures, noting that they legally exist, but are roundly ignored, especially in the cases of so-called political prisoners. (Human Rights…2008)
Islam, N. (2001) “Democracy and Governance in Pakistan’s Fragmented Society”. International Journal of Public Administration, Vol. 24, No. 12. 2001. pg. 1335
Mardson, M. “Love and Elopement in Northern Pakistan”. Journal of the Royal Anthropological Institute, Vol. 13, No. 1, 2007. pg. 91
Posner, E. & Sunstein, C. (2006) “ The Law of Other States”. Stanford Law Review, Vol. 59, No. 1. 2006 pg. 131
Byrnes, M., Lister, C. et. al. (2008) “Pakistan’s Courts and Constitution under Attack: Reversing the Damage” Retrieved April 15th. 2009 from Human Rights First website: http://www.humanrightsfirst.info/pdf/08215-hrd-pakistan-courts-reports.pdf
Blue, R., Hoffman, R. & Berg, L. (2008) “Pakistan Rule of Law –Final Assessment” Retrieved April 14th, 2009 from US Aid website: http://www.usaid.gov/pk/governance/reports/Pakistan_ROL_11-26-08.pdf
“2008 Human Rights Report: Pakistan”. Retrieved April 10th, 2009 from U.S. Department of State website: http://www.state.gov/g/drl/rls/hrrpt/2008/sca/119139.htm
Newberg, P. (1995) Judging the State: Courts and Constitutional Policy in Pakistan. Cambridge University Press. Cambridge, UK. (1995)
Auld, LJ. (2001) “Review of the Criminal Courts of England and Wales”. Retrieved April 15th, 2009 from Review of Criminal Courts of England and Wales website: http://www.criminal-courts-review.org.uk/auldconts.htm
Hester, M., Westmarland, N., et. al. (2008) “Early evaluation of the Domestic Violence, Crime and Victims Act 2004”. Retrieved from Ministry of Justice (UK) website: http://www.justice.gov.uk/publications/docs/domestic-violence-report-2004.pdf
Kennedy, A. (2007) “An Evaluation Of The Recovery Of Criminal Proceeds In The United Kingdom”. Journal of Money Laundering Control, Vol. 10, No. 1, 2007. pg. 33-46
No related essays.