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Old Saturday, October 09, 2010
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Default Pakistan criminal justice system

Pakistan Criminal Justice System

As a student criminologist, I submit a casual and secular comparison of the status of Pakistan's criminal justice system. Being no religious scholar, I have absolutely and intentionally not included any religious concepts. It is a purely secular and social comparison on a personal scale. I also have intentionally avoided taking any names due to obvious reasons. It is also hoped that this reflection would arouse constructive criticisms from the knowledgeable and in turn evolve from a mere thought process to a practical application level.

Before proceeding further, it is necessary to substantiate that crime and punishments have been part of the human system of existence since antiquity. From Kane and Able to the Mosaic Laws; from the Aztec's and Incas of South America to the barbaric Mongol hordes of central Asia; from the code of Hammurabi to the post modern criminal judicial systems; crime and punishments have existed in one form or the other. No community, society, statenation or empire; historically or contemporarily; has been void of crime and punishments.

Europe awakened from its dark ages to secular enlightenment and modernization in the aftermath of the Industrial and the French revolution. In the pre revolutionary era people of the book began to question traditional and orthodox thoughts, philosophies and practices. New thoughts, philosophies and researches took birth not only in the physical sciences but also in the social sciences. The study of crime and punishments also In Europe crime and punishment evolved from private vengeance by the victim towards the offender, to trial by battle, to trial by ordeal. The inquisitionist considered crime to be a sin and the evil in the offender was punished by extreme physical torture which in many cases led to or was death. No authentic laws or justice system were existent in the pre French revolution era. Crimes were offences against the State, against the Church or against the Crown. Some of these crimes were specified and many were not. The church still enjoyed much influence in the society and in the Kings Courts even after the renaissance. The King was considered the 'Shadow of God on earth' and the Church and the Monarch enjoyed an interdependent relationship. Judges were appointed by the monarch and were of the nobility. These judges had arbitrary and discretionary powers which were exercised with bias and prejudice and favoritism. Accused and convicted were treated in the same manner. In sense an 'accused was guilty until proven innocent' and in most cases the innocent succumbed to the tortures in practice to obtain a confession.

During this age of substitution of rule of law for human arbitrariness and excess of prejudice, nepotism and bias; arose a name from anonymity which today is unanimously accepted by all in the discipline as the 'founder of modern criminology.' Cesare Beccaria (1738- 1794) was an undistinguished student of law, who after much investigation and examination of the works of D. Hume, J. Locke, Voltaire, Montesquieu and Rousseau among others; produced his publication 'Dei delitti e delle'- 'On crimes and Punishment' in July 1764. This work of Beccaria contained an all-embracing and reasoned design for an enlightened criminal justice system which served not the purposes of the few but that of the masses.

It was thus approximately two and a half centuries ago when the controversy between the rule of law and the rule of men were raging in Europe and beyond, further west. It is noticeable that the concepts and practices of the arbitrary and whimsical legal system prevalent then are having many similarities of what is the norm of the judicial system in Pakistan today. Beccaria's philosophy was though based on certain unscientific assumptions of 'Free Will' and Hedonistic nature of man; however, here I am not attempting to criticize his beliefs. I attempt here to compare the conditions prevalent two and a half centuries ago in the west - which led Beccaria to produce his work; with what is in vogue two and a half centuries later in Pakistan.

Beccaria's masterpiece can be summed into certain basic rules or principles. These were the principles which according to Beccaria would undo the then existing rule of men and replace it with the rule of law. I shall briefly shed light upon some of the main principles. It is necessary to remember that this principle given in retaliation to an existing practices and it remains my intention to compare those practices which led to Beccaria's work with what is the practice in Pakistan today.

Principles proposed by Beccaria:
. Laws should be used to maintain the 'Social Contract':This is a theory of how rules, regulation and laws developed in society. For those who are not familiar with the term; Social Contract theory supports the opinion that people were originally without government. They then created a state through a 'Social Contract' by which they surrendered many of their 'natural liberties'. In return, people received the security that government could provide 'against anti social acts.'
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