Reporting of crime is finding amplified expression through social media, that is characterized by individualism, and reinforcement of a media item through repetition. The ever-growing impact of crime reporting by media, in general, and social media, in particular, is attracting public attention – resulting in bringing internal security, i.e., the safety of citizens to the central stage in public policy sphere. The shift from hitherto dominant concern about external threats to internal security is visible and notable. New realities of COVID-19 pandemic and geo-political scenarios have presented security as an organic whole that defies the neat distinction of internal and external. Nonetheless, the emerging circumstances have brought to fore many aspects that beg basic questions like the state of the criminal justice system in the country and how effective it is. With every sensational crime, the discourse about punishments resumes with more energy and emotions.
The area of knowledge that deals with the study of crimes is called criminology. Criminology is further branched into many subfields like victimology, criminal justice, phrenology, physiognomy, and penology. Italian Cesare Beccaria (1738-1794) is considered the father of modern criminal law and criminology. He ventured into the study of crime and punishment in his book De delitti e delle pene(On Crimes and Punishment). In his book, Beccaria theorized many concepts that have been summarized into thirteen famous propositions related to crime and punishment. Through these propositions, he undergirded the importance of legality and certainty of punishments over their severity. His influence on Jeremy Bentham (1748-1832) linked his ideas to English law that came to the Sub-Continent with the British colonial rule. This backdrop has been restated to show that the overall design of the criminal justice system in Pakistan is operative under the larger framework of Common Law and the Western legal institutions. Within this framework, law reforms attain primacy and must be seen as a basic means of anchoring change. The area of penology is no exception whereby punishments and prison management are examined and studied. The basic criminal law (Chapter III of the Pakistan Penal Code, 1860, in its section 52) prescribes ten types of punishments, which may be divided into corporal and non-corporal. Corporal punishments result in imprisonment and physical harm. While the punishments are dealt with according to the basic criminal law (Pakistan Penal Code), the legal framework dealing with prisons is contained in the Prisons Act, 1894, Prisoners Act, 1900, and Prison Rules 1978 that were framed under the Prisons Act, 1894. Aside from the forestated laws, the law pertaining to alternate punishments to imprisonment or diversions is contained in the Good Conduct Prisoners’ Probational Release Act, 1926 (1926 Act), the Reformatory School Act, 1897 (1897 Act) as well as in the Probation of Offenders Ordinance, 1960 (1960 Ordinance).
The penal policy articulated in the foregoing laws is currently being amended. Sindh province took the lead in rewriting its laws relating to the prison management system by promulgating the Sindh Prisons and Corrections Services Act, 2019, that repealed its predecessor colonial legislation (Prisons Act, 1894 and Prisoners Act, 1900). The KP has also moved a government-backed bill titled as the Khyber Pakhtunkhawa Probation and Parole Act, 2021 (2021 Bill). The 2021 Bill proposes to repeal the aforementioned probation and parole laws and substitute them with new law. Before examining the 2021 Bill, let us briefly look at the concepts and existing laws relating to parole and probation.
Erika Fairchild, the author of Comparative Criminal Justice Systems, noted that Europeans, in the repulsion of cruel and disproportionate punishments, started their discourse on penal policy; however, Americans implemented it well and American style of prisons were showcased as a success. Other countries started emulating the same, but soon realized their distinct shortcomings. The American prisons’ experiment, however, excited a debate on the subject, leading to ‘a whole panoply of new or renewed proposals for change, including probation, parole, therapeutic prison regimes, and separate juvenile justice mechanisms…’. She differentiated the concepts of probation and parole in the following words:
“Probation, which allows the offender to remain outside of prison, and parole, whereby offenders are released to community supervision after a period of incarceration…”
Pakistan’s existing law i.e. the Good Conduct Prisoners’ Release Act, 1926 (1926 Act) and the Probation of Offenders Ordinance, 1960 (1960 Ordinance) cannot be categorized in as simple terms as the statement of Erika Fairchild. The 1926 Act deals with ‘Good Conduct Prisoners;’ section 2 of the law provides that a ‘Good Conduct Prisoner’ may be released on a ‘licence permit’ that imposes a condition that they will be under the supervision of ‘an authority of a servant of the State’, or a ‘secular institution’, or ‘a person or society professing the same religion’. ‘Good Conduct Prisoner’ is not defined in the law but is described as ‘a person who is likely to abstain from crime and lead an industrious life’. The escape or breach of the ‘licence permit’ has been criminalized under the same law and declared an offence with two-year imprisonment. Alongside this law, 1960 Ordinance provides for ‘conditional discharge order’ for first time offenders who have been convicted of an offence having less than two years of imprisonment as a punishment. The ‘conditional discharge order’ is to be made on the basis of a bond of good behavior, which may or may not be backed by sureties. The ‘conditional discharge order’ can be cancelled and a warrant of arrest can be issued if the bond is not fulfilled, in the court’s opinion. The monitoring of the offender is to be carried out by a probation officer, under the law. The probation officer’s duties include visiting the offender, advising, assisting, or befriending the person extended the benefit of the conditional discharge. The 1960 Ordinance was further elucidated by 1961 Rules that require the Director, Reclamation and Probation (DRR) to act as an officer in charge of probation officers. A committee was constituted in each district of the country comprising the head of administration of a district, a judicial officer and a probation officer to jointly oversee the compliance of ‘conditional discharge orders’. The Rules require that judges who intend to pass ‘probation orders’ in the nature of ‘conditional discharge orders’ must obtain an enquiry report from a probation officer before passing such an order. The above discussion shows that the terms of parole and probation have been used in the law in an alternative manner.
The 2021 Bill of KP is well-drafted. It clearly distinguishes between parole and probation and proposes to clearly repeal the existing legal framework to the extent of KP’s territorial jurisdiction only. Probation has been defined as:
“An opportunity given to a convict by the Court subject to such conditions as provided under this Act before passing the sentence for the purpose of reformation and reintegration of such convict in order to enable him to be an earning member of the society and law abiding citizen”.
Parole, on the other hand, is defined as:
“A convicted person’s conditional release from prison by a parole committee”.
Thus, defining the two terms distinctly, the draft bill proposes to deal with them separately. The draft bill proposes five types of probations for convicts, which are:
- Probation by keeping him under supervision of a probation officer;
- Probation by performing community service;
- Probation by admonishing, in case of offences punishable for not more than two years;
- Probation by suspension of imprisonment;
- Probation by sending convict for drug treatment.
The draft Bill provides for conditions under which probation may be granted. Moreover, conditions relating to undertaking vocational training may also be imposed by the court while passing a probation order. The probation part of the corrections is purely an executive function. It will be managed by a provincial committee and various district sub-committees. The provincial committee will be headed by the Additional Secretary, Home and will be assisted by Inspector General of Prisons along with other members. The district sub-committee will be headed by District Superintendent Prisons and will be assisted by probation officers and police officers. The probation committee has been granted power to issue release orders based on certain conditions.
It may be noted that national law is not the only sphere that requires non-custodial measures to be embraced by states. The International Humanitarian Law (IHL) and the International Human Rights Law (IHLR) also require states to introduce alternatives to imprisonment. IHL, for example, requires that an inquiry officer may be instituted for detainees and Prisoners of War (POW) who shall be informed about ‘release on parole’ and alike information (Paragraph 14 of Hague Regulations, 1907). The IHLR disseminates, and insists upon states to follow the United Nations Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules-based on General Assembly Resolution 45/110 of 1990). The Tokyo Rules propose sentencing (probation) and non-sentencing dispositions (parole) that states are obliged to abide by.
As can be observed from the foregoing discussion, penal policies of states are informed by national and international laws, but their utility exceeds the domain of mere legality. Societies need penal policies for dispensation of justice, which ultimately guarantee peace and prosperity. For Pakistan, reviewing of penal policy through probation and parole law is as important as its implementation. The present review may be further nuanced by catering to vulnerable sections of society like women, transgender persons, and children generously, while offering no concessions for extremism. In this regard, the praxis in Pakistan has been that it has left formulation of penal policies to provinces while the constitutional design accords primacy to the federation in terms of articles 142 and 143 of the Constitution of Pakistan, that put the latter in lead insofar as the criminal law, criminal procedure and evidence matters are concerned. Penal policy review is couched in criminal law and the state must make full use of this important tool to substantially improve the rule of law in the country.