Time for jail reform

September 19, 2019

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I.A. Rehman
I.A. Rehman

THE federal government’s decision to deny A-class status in prison to those convicted under the NAB law for corruption amounting to Rs200 million or more and put them in C class will fail any test by reason.

A preliminary objection is that the proposal will set up a discriminatory regime. While those falling into the NAB dragnet will be treated as C-class convicts or detainees under trial, those convicted or held under other laws could continue receiving better class treatment. Besides, putting undertrials, who must be treated as innocent until proved guilty, at par with convicts offends against the basic principles of justice.

Since many persons accused of graft on a huge scale are the government’s political rivals, the present move smacks of political vendetta. Government spokespersons have on many occasions indicated their desire to punish corrupt politicians by making conditions of their imprisonment unbearably harsh. Any sane mind will dismiss such ideas as aberrations of a mediaeval mindset.

Since the present proposal comes in the wake of sporadic attempts to revise the jail manual, good sense demands that the question of prison reform be taken up as a whole instead of being undertaken in a piecemeal fashion.

Instead of turning jails into dungeons, the government should undertake comprehensive prison reforms.

Unfortunately, the system of retributive justice that the state of Pakistan has embraced with the zeal of a neo-convert has suffered further regression over the past few decades. During the earlier phases of colonial rule, prisons in our subcontinent were like torture cells maintained by feudal chieftains in the pre-colonial era. It was partly as a result of prison reform campaigns carried out by political activists, who had suffered torture in prisons, and partly due to the international community’s adoption of liberal ideas that the prisoners’ rights as human beings began to be recognised in the subcontinent.

Two initiatives taken by the British deserve mention. First, an attempt was made to persuade what were called ‘criminal’ tribes to give up unlawful pursuits by allotting them lands in colony areas for cultivation. After Independence, these lands were taken away from them and allotted to powerful bureaucrats. The scheme of turning ‘criminals’ into law-abiding peasants fell through.

Secondly, open jails were established — one at Manawan near Lahore, and another in Badin district of Sindh. Each of these jails was allotted a large tract of land to be cultivated by prisoners. The way this scheme has been sabotaged constitutes a sad chapter in the country’s history. The Kot Lakhpat Jail in Lahore, too, was designed as a partly open jail. It was proposed that the prisoners could come out of the prison and buy drinks, cigarettes or snacks from stalls close by and have a whiff of fresh air. This was not to be.

The idea that runs through all jail reform steps, from installing ceiling fans in barracks to easier family reunions, is that even the worst criminals retain their inherent dignity as human beings. Civilised societies do not want bad conditions of imprisonment to turn first offenders into hardened criminals. Nor do they want to lose wrongdoers for good. Instead, they would like the offenders to go through a catharsis and purge their minds of criminal ideas. There have been instances in Pakistan of death-row prisoners’ transformation into useful citizens, only to be hanged afterwards.

South Africa’s apartheid regime was no respecter of black Africans’ life or liberty. But it offered Nelson Mandela the basic facilities in his prison cell on the desolate Robbin Island — a cot, a table and a chair, and a window through which the sky could be seen, facilities that the present government of Pakistan wishes to deny to certain categories of prisoners. Thus, instead of trying to turn the country’s prisons into dungeons of the Mughal period, the government should undertake a comprehensive jail reform project. Its first task should be to reduce the prison population by providing for release on bail of a large number of undertrials who should not be in prison at all.

One of the most outstanding studies on this subject was done in 2017-2018 by the International Committee of the Red Cross in collaboration with the National Counter Terrorism Agency and CODE (a civil society organisation). Published under the title Addressing Overcrowding in Prisons by Reducing Pre-Conviction Detention in Pakistan, the study was based on extended consultations with federal and provincial criminal justice officials, prison officials, judicial authorities, bar councils, academics and civil society experts.

The study noted that as of Oct 1, 2017, the prison population in the country (except for the then Fata), was 84,287 as against the authorised capacity of 53,744. The report questions the method of calculating the capacity of prisons; the overcrowding rate would become higher if the space calculation formula suggested in the report were to be adopted.

The report finds that 66 per cent of the prison population comprises under-trial detainees. The denial of bail even where it is provided by the law, as the Supreme Court has recently noted, is due to the culture of vindictiveness that prevails in the corridors of authority. It is time that release on bail was accepted as a fundamental right in most cases.

It might be said that in view of the increase in the degree of criminality of wrongdoers and the rise of terrorists, the humanitarian concepts of imprisonment have to be put aside. It would be wrong and dangerous to rely on this argument because equally important is the fact that the state has abdicated its benevolent functions and has become more violent and predatory than before. In order to return to the ways of responsible and responsive governance, the state will have to revert to rule by reason and consensus, and learn to face violence and terrorism without denying the basic rights of the people, including prisoners.

Published in Dawn, September 19th, 2019