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[JAIL REFORMS IN PAKISTAN]

By

Qazi M. Ashraf

Before going into the main stream of the subject matter, it deems appropriate to clarify a few frequently used terms and concepts. With the word jail, attention draws to the following terms; though these are not explained the way these are defined in various laws of the land for the reason these differ in meaning and context in these enactments and only lexicon meanings are given; namely:

A.Definitions

1. Crime

The violation of criminal laws including ‘omissions’ and ‘commissions’ are defined as punishable offences in legislation. Islamic laws define it ‘as deviance in committing a prohibited act by the man with self option.’

2. Court

It is the forum of justice armed with judicial powers.

3. Convict

A person adjudicated upon by a court of law, found guilty of crime(s) and convicted as such and sentenced to a term for confinement in prison.

4. Prison

Any place used permanently or temporarily under the general or special orders of the government for the detention of prisoners.

B. History of prisons and their reforms

The presence of prisons on the earth is as old as the history of the mankind as these existed in one or the other forms for confining subjugated enemies or criminals of those societies and civilizations.

1. Early British era

The British ruled the Indo-Pak sub-continent for about 200 years from mid-18th to mid-20th centuries. When they established their writ and power on subjugation of the area, they introduced various legislation and enacted laws to consolidate their power. They constructed a network of prisons in the mid-19th century over whole of India.

2. Enactment by British

The British enacted “The Prisons Act, 1894” followed by “The Prisoners Act, 1900” and formulated rules thereunder known as IPR (Indian Prison Rules) or the Jail Manual. Some amendments were made in these rules from time to time according to the need and desire of the colonizers but the crux of the matter remained unchanged with the only exception that its name changed from IPR to PPR (Pak Prison Rules) after independence.

3. After independence

In the early days of independence the Punjab Prison Reforms Committee report of 1950 followed by sub-committee in 1955 made some positive changes in the jail rules, which had trickle-down effect in other provinces, especially under the one-unit era when all jails of the then West Pakistan (now Pakistan) were administered under those modified rules.

4. UN rules

The United Nations formulated the “Standard Minimum Rules for Treatment of Prisoners” in 1955, which still await ratification by Pakistan and thus reforms enunciated about half a century ago remained unimplemented.

5. Reforms

Then came the Jail Reforms Committee of 1968 and the Jail Administrators Conference of 1972, which recommended several reforms but these fell victim to the introduction of the uniform Pak Prison Rules of 1978 under the Zia regime by the Central Jail Staff Training Institute of the Interior Division of the Federal Government, though Prison administration is a provincial subject under the constitution and so those recommendations did not find place in these rules and resultantly the Pakistan Prisons Rules (PPR) or the new Jail Manual emerged.

Then came the recommendations of the Islamic Ideology Council, a constitutional institution, in 1981, followed by the rulings of the Federal Shariat Court on islamisation of laws in 1984, the report of the High Powered Cabinet Committee in 1986 and lastly emerged the Prisons Reforms Report in 1997 formulated by the Law Commission under the auspices of the Supreme Court of Pakistan but none of these reports were energized for implementation and so these dreams remained unrealized.

So the legislation on prisons like many other laws inherited from the colonial era of a century-old, which was basically designed for the subjugation of the people of the sub-continent by the British masters and remained immune to social, material and human rights developments in rest of the world so much so that India made several reforms, though deriving strength from our common laws of that time.

C. Proposed reforms in prisons

In order to keep pace with the comity of nations and as modern Islamic, democratic and welfare state, we need drastic changes in our out-dated laws including the ones on prisons and as such the following reforms are recommended:

1. Legislative reforms

The old and outdated laws need to completely overhauled keeping in view the contemporary developments in the world. Many of our colonial times laws need to be recast in line with the present day requirements of the nation and the contemporary developments around the globe.

2. Crime prevention

All the crime control codes are required to be recast and unified in view of simplification of legal processes with reduction in specialized courts so as to ensure speedy and cheap administration of justice, which in turn will help in crime prevention. Crime as a social, economic and cultural malaise and is required to be studied in that perspective in particular reference to our conditions and corrective measures need to be adopted as has been done in social welfare states around the world.

3. Police reforms

The new Police Order has been introduced in 2001 by the military government but is undergoing a testing phase and has not been legislated by the parliament after its emergence as a result of general elections in October, 2002, which needs to be placed before the parliament in form of a bill for debate in the bicameral house, appraisal and scrutiny by the expert committee of these houses and its enactment.

Not only the police laws need overhauling but their training, education, specialization in crime prevention, control, intelligence, registration, detection, forensics, search and seizures and investigation be re-assessed in view of the requirements of the 21 century.

4. Prosecution

The prosecution branch of police has partially been separated from the police but it has not been fully segregated and as such the prosecution is still under the direct control of police. The part of prosecution that has been detached from police has been brought under the domain of Law Department of the provincial government but there is no patronage and effective control over and monitoring of these prosecutors and so they are left to their free hand and there are no visible sign and symptoms of improvement in prosecution leading to speedy and efficient assistance of courts in arriving at fair justice.

There is, therefore, dire need to improve the situation to institutionalize the prosecution and bring it under the control and accountability of an independent Prosecution Department with clear mandate for the purpose.

5. Defence

The mushroom growth of lawyers on the bar has brought down the defence standards and has resultantly damaged the judicial process with heavy cost on the litigants. The registration of lawyers needs introduction of competitive examinations under the strict provision and control of the High Courts and the Bar Council also needs to be recast on high merits. The bar and bench needs to evaluate and monitor the performance of lawyers on yearly basis.

6. Judicial reforms

There is a maxim that the credibility and performance of the judiciary of a country can be gauged from the prison population of that country. If we apply this criterion, we are second in Asia after Bangladesh. And if we look at our total prison population vis-à-vis its proportion of under-trials, then we top the Asia list unfortunately. As such our judiciary needs complete overhauling, right from selection process of junior judges to the selection and elevation of the judges of the superior judiciary. The selection process of the elevation of the superior judiciary is highly non-transparent and is not liable to public scrutiny and accountability, which is not the norm of a democratic country. Under the existing procedure the Chief Justice of a High Court nominates advocates and/ or career district judges to the provincial governor and he simply forwards the list of these recommendees to the President and he notifies their appointment as adhoc judges of the High Courts for one year and thereafter notifies them as permanent judges.

The process is not open to public accountability at least at the parliament level, which is the constitutional forum representing the aspirations of the people and so it needs to be made transparent and subject to public scrutiny and accountability.

The role of the Supreme Judicial Council needs to be widened through enactment in the parliament to arm it with powers to monitor, assess and evaluate the conduct and performance of the judiciary and it needs to be made accountable to the parliament.

The subordinate judiciary also need to be brought under the public scrutiny and accountability through provincial assembly enactment by the legal forums and civil society representatives.

7. Prisons

The institutions discussed above took more time and elaboration but it was essential for the reason that these are the forums which fill prisons with under-trials and convicts and that is why Pakistan has one of world biggest population of prisoners. These institutions are the cause and prisoners are their effect and so cannot be viewed in isolation from each other.

Attempting any reforms aimed at improving jails and ameliorating the condition of their inmates would end up in futility unless the institutions mentioned above are not improved. Therefore, reforms of these institutions are of primary concern and prison reforms are secondary and are directly dependent on and subservient to the performance of these institutions.

Having said that the following reforms in the administration of prisons are required in order to ameliorate the condition of their inmates and to fulfil the aspirations of free, sovereign, democratic, moderate and modern Islamic state as enshrined in its constitution and to stand as such in the comity of nations:

(a) Implementation of past recommendations

The past recommendations of the various forums discussed in part-B above need to implemented forthwith, which are reproduced as under:

(i) Islamic Ideology Council report of 1981 (ii) Rulings of the Federal Shariat Court on islamisation of laws of 1984 (iii) Report of the High Powered Cabinet Committee in 1986 (ii) Prisons Reforms Report of 1997 by the Law Commission

(b) Constitution of Pakistan

The preamble to the Constitution of the country laid down “Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.” But unfortunately these aspirations could not be achieved till date. As such it is high time to adopt, implement and follow these tenets in all walks of life including the prisons.

(c) Ratification of the U.N Standards

Although Pakistan is active member of the United Nations since its independence yet it has not ratified U.N’s “Standard Minimum Rules for Treatment of Prisoners” formulated in 1955. As such it is imperative to ratify these standards immediately to gain international acclaim.

(d) Ratification of other international covenants

Pakistan needs to ratify, adopt and implement the following UN protocols:

(i) Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

(ii) Recognizing that those rights derive from the inherent dignity of the human person,

(iii) Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,

(iv) Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,

(v) Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975,

(vi) Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,

(vii) Article 11 -Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.

Conclusion

Owning and implementing these reforms and adopting these international protocols will certainly convert our prisons into ‘Correction Centres’ and the inmates will not go as recidivists on release but as responsible noble citizens and will easily assimilate in the social fabric of the society.

Adopting these measures will not only give us an opportunity to stand up on equal footing in the comity of nations as a state and will enable us to shun the allegations of being condemned as rogue, terrorist, fundamentalist and corrupt state but will also usher in an era of freedom, sovereignty, democracy and realize the dream of Pakistan as an Islamic state for which our ancestors made unprecedented sacrifices.

Qazi Muhammad Ashraf