Through social media, which is
defined by individualism and the repetition of media content, reporting on
crime is finding a more amplified expression. Internal security, or the
protection of residents, is now taking centre stage in the realm of public policy
due to the ever-increasing impact of crime reporting by media, in general, and
social media, in particular. It is evident and remarkable that the focus has
shifted from the formerly predominate worry of external dangers to internal
security. The COVID-19 epidemic and contemporary geopolitical situations have
made security an organic unity that defies the clear division between internal
and external. Nevertheless, the current situation has highlighted a number of
issues that raise fundamental concerns, such as the condition and effectiveness
of the nation's criminal justice system. With each high-profile crime, the
conversation regarding sanctions picks back up with greater vigour and
intensity.
In his book De delitti e delle
pene (On Crimes and Punishment), Cesare Beccaria (1738-1794) developed a number
of ideas that have been condensed into thirteen well-known statements about
crime and punishment. He emphasised the importance of the legitimacy and
predictability of sanctions over their severity through these assertions. His
theories were linked to English law, which was introduced to the Sub-Continent
with British colonial control, through his influence on Jeremy Bentham
(1748–1832). This history has been reiterated to demonstrate how the Common Law
and Western legal systems, as well as the greater framework of Pakistan's
criminal justice system, operate together. Reforms to the legislation take
precedence within this framework and must be viewed as a fundamental method of
anchoring change. The study of penalties and jail administration is common in
the field of criminology. The Pakistan Penal Code, 1860, Chapter III, section
52, specifies 10 different punishment methods that can be categorised as
corporal and non-corporal. Physical harm and incarceration follow corporal
punishment. While the basic criminal law (Pakistan Penal Code) governs
punishments, the Prisons Act, 1894, Prisoners Act, 1900, and Prison Rules 1978,
which were created under the Prisons Act, 1894, govern the legal system
governing prisons. In addition to the laws that have been repealed, the Good
Conduct Prisoners' Probational Release Act of 1926 (1926 Act), the Reformatory
School Act of 1897 (1897 Act), and the Probation of Offenders Ordinance of 1960
all contain legislation that pertain to alternatives to jail or diversion (1960
Ordinance).
The judicial philosophy outlined
in the aforementioned laws is now being modified. The Sindh Prisons and
Corrections Services Act, 2019, which removed its previous colonial
legislation, was introduced by the province of Sindh as the first step in
reforming its laws relating to the jail management system (Prisons Act, 1894
and Prisoners Act, 1900). The Khyber Pakhtunkhawa Probation and Parole Act,
2021, a measure supported by the government, has also been tabled by the KP
(2021 Bill). The 2021 Bill suggests repealing the aforementioned parole and
probation laws and replacing them with new legislation. Let's take a quick look
at the ideas and existing laws around parole and probation before analysing the
2021 Bill. Erika Fairchild, the author of Comparative Criminal Justice Systems,
remarked that Europeans began their discussion of penal policy out of
opposition to cruel and excessive punishments; nevertheless, Americans
successfully implemented it, and American model jails were promoted as
successful. Other nations began to follow suit, but they soon became aware of
their glaring flaws. However, the experience in American jails sparked a
discussion on the issue and resulted in "a complete panoply of new or
repeated recommendations for change, including probation, parole, therapeutic
prison regimes, and separate juvenile justice processes... "Probation,
which permits the offender to remain outside of jail, and parole, whereby
prisoners are released to community supervision after a time of
incarceration," she said in describing the differences between the ideas
of probation and parole.
The Good Conduct Prisoners'
Release Act of 1926 (1926 Act) and the Probation of Offenders Ordinance of 1960
(1960 Ordinance), two pieces of current Pakistani legislation, cannot be
classed in as straightforward a manner as Erika Fairchild suggests. The 1926
Act, which deals with "Good Conduct Prisoners," stipulates in section
2 that a "Good Conduct Prisoner" may be released on a "licence
permit" with the requirement that they be under the supervision of
"an authority of a servant of the State," "a secular
institution," or "a person or society professing the same
religion." Although the term "Good Conduct Prisoner" is not
defined by law, it is generally understood to refer to someone who "is
likely to abstain from crime and pursue an upright life." According to the
same statute, evading or violating the "licencing permit" is a crime
punishable by two years in prison. In addition to this regulation, the 1960
Ordinance offers first-time offenders who have been found guilty of an offence
with a sentence of less than two years in jail a "conditional discharge
order." An "order of conditional discharge" is to be issued
based on a promise to behave well, which may or may not be supported by
sureties. If the bond is not paid, the court believes the "conditional
release order" can be revoked and an arrest warrant can be issued. Under
the legislation, a probation officer is responsible for monitoring the
offender. In addition to visiting the offender, the probation officer's
responsibilities can include counselling, helping, or making friends with the
person who has been granted a conditional discharge. The 1961 Rules, which
mandate that the Director, Reclamation and Probation (DRR) serve as an officer
in control of probation officers, further clarified the 1960 Ordinance. Each
district in the nation established a committee made up of the district's head
of administration, a judge, and a probation officer to jointly monitor the
fulfilment of "conditional discharge orders." According to the Rules,
judges must first receive an inquiry report from a probation officer before
issuing "probation orders" that resemble "conditional release
orders."
The 2021 KP Bill is well-written. It makes a clear
distinction between probation and parole and suggests repealing the current
legal system exclusively to the extent of KP's geographical jurisdiction.
According to the definition of probation given by the court before imposing a
sentence, it is "an opportunity given to a convict subject to such
conditions as provided under this Act for the purpose of reformation and
reintegrating 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 proposed Bill outlines the
requirements for probationary status. Additionally, the court may impose
requirements for completing vocational training while issuing a probation
order. Probation is only an executive function in the context of corrections. A
provincial committee and different district subcommittees will oversee its
administration. The Additional Secretary for Housing will serve as the
committee's chairman, and the Inspector General of Prisons will provide
support. District Superintendent Prisons will be in charge of the district
subcommittee, with the help of probation officers and police officers. The
probation committee has been given the authority to issue release orders
subject to a number of requirements.
It should be highlighted that
non-custodial solutions must be accepted by governments in areas other than
national law. States are obligated to implement alternatives to incarceration
under both international humanitarian law (IHL) and international human rights
law (IHLR). IHL, for instance, mandates the establishment of an inquiry officer
who will tell detainees and prisoners of war (POW) about "release on
parole" and similar information (Paragraph 14 of Hague Regulations, 1907).
The Tokyo Rules, which are based on General Assembly Resolution 45/110 of 1990,
are the United Nations' Standard Minimum Rules for Non-Custodial Measures and
are widely disseminated by the IHLR. States are required to follow the
sentencing (probation) and non-sentencing dispositions (parole) set forth by
the Tokyo Rules.
National and international laws
influence a state's penal practises, but their value goes beyond mere legality.
For the administration of justice, which in turn ensures peace and prosperity,
societies need penal policies. It is equally crucial for Pakistan to examine
its judicial system through the probation and parole laws. By generously
accommodating marginalised groups of society like women, transgender people,
and children while making no allowances for extremism, the current review might
be made even more nuanced. In this regard, Pakistan's practise has been to
delegate the creation of penal policies to the provinces, despite the fact that
the federation is given priority by the constitution's articles 142 and 143,
which place the latter in charge of matters relating to criminal law, criminal
procedure, and evidence. Penal policy review is framed by criminal legislation,
and the state must fully utilise this crucial weapon to significantly enhance
the rule of law throughout the nation.
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