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

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.