Judging in a Therapeutic Way: TJ Audit of Juvenile, Probation and Criminal Procedure laws in Pakistan with reference to Therapeutic Design and Therapeutic Application of Law

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, probation officers, police, therapists etc) 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 various laws made in Pakistan, i.e., the Juvenile Justice System Ordinance 2000, the Control of Narcotics Substance Act 1997, the Criminal Procedure Code 1898 and the Probation of Offenders Ordinance 1960 to 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 sometimes judges apply, and sometimes miss critically, the humane side of law, i.e., TJ application of law by legal actors through their roles – 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.

Note: This is a revised and updated paper which was originally presented at the Law and Society Association (LSA) International Meeting, held at Isabel Maria Sheraton Hotel, Mexico City, Mexico, 22 June 2017 on the theme “Walls, Borders, and Bridges: Law and Society in an Inter-Connected World”. See https://www.lawandsociety.org/MexicoCity2017/mexicocity2017.html. The author participated as a Speaker and Panellist on Responsive Judging. The original article has been published in an international book titled The Responsive Judge: International Perspectives (2018), Springer. https://doi.org/10.1007/978-981-13-1023-2_9

Keywords: Therapeutic Jurisprudence, TJ, Mental Health, Juvenile Justice System Act 2018, JJSO, Therapeutic Application of Law, Therapeutic Design of Law, Probation, Child, Juvenile, TAL, TDL, Mental Health Ordinance, Shizophrenia, Bi-polar Disease, Court, Judge, Diversion, Judging, Pakistan

JEL Classification: J10, D10, L10, Z10