Abstract
In Professor Wexler’s “bottle-liquid” metaphor, the legal landscapes or legal structures are “bottles,” and the roles, behaviors, practices and techniques used by legal actors (judges, lawyers, therapists) are “liquid”. Within this framework responsive judging requires judges to use Therapeutic Jurisprudence (TJ) practices to promote procedural fairness and better outcomes. However, enabling judicial responsiveness may also require legislative changes consistent with therapeutic design. This Chapter describes changes made in Pakistan, where the Juvenile Justice System Ordinance 2000, the Control of Narcotics Substance Act 1997 the Criminal Procedure Code 1898 and probation law contain therapeutic provisions. These laws, thus, are therapeutic in design—the bottles. However, the practice in trial courts and the decisions of constitutional courts suggest that there exists no mechanism and training regime for judges, prosecutors and lawyers to provide them with guidance into the humane side of law, i.e., TJ application—the liquid. This paper will provide a TJ “audit” of these Pakistani laws in accordance with the Therapeutic Design of Law (TDL) and Therapeutic Application of Law (TAL) . It gives examples of judicial education concerning TJ in the form of joint lectures of the author and Professor Dr. David B. Wexler (who was available through Skype) at the Punjab Judicial Academy . The paper also discusses TJ literature produced in Pakistan, including reference to some court opinions, in relation to mainstreaming therapeutic jurisprudence practice.
Paper presented at the Law and Society Association (LSA) Meeting, Isabel Maria Sheraton Hotel, Mexico City, Mexico, 22 June 2017.
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Notes
- 1.
Professor Gillian is a clinical Professor of psychiatry and an Adjunct Professor of law at New York University. He is the author of, among other books, “Preventing Violence” and “Why Some Politicians Are More Dangerous Than Others”.
- 2.
At this moment, we are not entering into the debate with respect to the death penalty and its impact on crime reduction. Our focus mainly will remain on other less harmful crimes.
- 3.
When legal actors presume that the law may be abused by the accused. It is general opinion in Pakistan that the softness in juvenile laws provides an opportunity for using children to commit crimes (Author’s informal discussions with a number of judges, lawyers, probation officers, and police).
- 4.
In Pakistan, it is generally presumed that the criminal courts are bound to pass sentence immediately after recording conviction of an accused at trial. There is no concept of post-conviction sentence hearings.
- 5.
There are many special criminal laws with specific offences defined therein along with their punishments. However, we will not go into detail of those laws for brevity and time constraints.
- 6.
There are very few offences having capital punishment.
- 7.
Other punishments include rigorous imprisonment, fine, life imprisonment, arsh, daman, ta’zir, and forfeiture of property: See section 53 PPC.
- 8.
“qisas” means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim, or by causing his death if he has committed qatl-i-amd, in exercise of the right of the victim or a wali: See section 299(k) of PPC.
- 9.
Compensation payable to legal heirs of victim: See section 323 PPC.
- 10.
We have to note that the TJ literature does not support custodial rehab programs for different reasons and its anti-therapeutic impact on the psychology of a convict.
- 11.
This is commercial website of Pakistani case law reported in Pakistan Legal Decisions and other journals issued by M/S PLD Publishers.
- 12.
This judgment is under challenge before the Hon’ble Supreme Court of Pakistan which has yet to expound the law on this point.
- 13.
For example, women, children, the infirm and the elderly. So far, there are no sentencing guidelines provided by the legislature in this respect.
- 14.
See section 2(b) of JJSO where the term ‘child’ has been defined as “a person who at the time of commission of an offence has not attained the age of eighteen years”.
- 15.
I used the Pakistanlawsite search engine and searched for the term ‘juvenile justice’ with the limitation that only cases of the Hon Supreme Court of Pakistan be searched. It brought 20 titles as such.
- 16.
This is a present law of evidence in Pakistan.
- 17.
Section 10 of JJSO has special exceptions to refuse bail to children on these grounds.
- 18.
It is interesting to note that no law has yet developed about the report of a probation officer which he or she is bound to prepare and submit before a juvenile court (I have made this assertion on the basis of searching case law on section 9 of JJSO by using Pakistanlawsite. No case is reported there).
- 19.
The Probation of Offenders Ordinance, 1960.
- 20.
To read TJ literature in Pakistan, visit my SSRN page at http://ssrn.com/author=670902.
- 21.
Justice Dr. Munir Ahmad Mughal, a former judge of the Lahore High Court and a Member of the Council of Islamic Ideology. His research can be accessed online at http://ssrn.com/author=1697634. He can be contacted at justicemunir@gmail.com.
- 22.
Muhammad Ahmad Munir, a Ph.D. fellow at the McGill University, Canada. Under the guidance of Prof David Wexler, he has written and presented a paper in 3rd International Conference on Therapeutic Jurisprudence held in Perth Australia. He can be contacted at ahmad.munir@mail.mcgill.ca.
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Acknowledgements
The author wants to acknowledge guidance of Prof. Dr. David B Wexler and critical review by his Father Justice Dr. Munir Ahmad Mughal in writing this paper. For all the errors, omissions and assertions, the author is, however, solely responsible. The views reflected by the author do not reflect the official view of any of the institutions to which he represents. Thanks are also due to Professors Tania Sourdin (University of Newcastle, Australia) and Archie Zariski (University of Athabasca, Canada) for providing ample support in preparing and presenting at the LSA 2017 Conference through a generous financial grant by the National Science Foundation, USA.
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Munir, M.A. (2018). Judging in a Therapeutic Way: TJ Audit of Juvenile, Probation and Criminal Procedure Law in Pakistan with Reference to Therapeutic Design and Therapeutic Application of Law. In: Sourdin, T., Zariski, A. (eds) The Responsive Judge. Ius Gentium: Comparative Perspectives on Law and Justice, vol 67. Springer, Singapore. https://doi.org/10.1007/978-981-13-1023-2_9
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