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Reintegration Prospects for the Ex-Convicts in Pakistan: A Legal Perspective
Abstract
The idea of smooth reintegration of ex-convicts back into the society after completion of their punishments has got statutory acknowledgement in many Western states. However, Pakistani legal regime seems divided regarding the readjustment prospects of these convicts. Each of several perplexing provisions incorporated in different statutes discusses an exclusive post-conviction circumstance by leaving the residual rehabilitation aspects untouched. Thus, these provisions lack a principle-based mechanism of exoneration of the ex-convicts. The absence of uniformity and consistency of rules not only deprives the majority of ex-offenders from the right to secure respectable reintegration into the society but the entire social order sometimes suffers due to grant of clemency to the wrong cases. The findings of this study suggest that a policy-based stance is required for the effortless readjustment of the ex-convicts in Pakistan who have desisted from crime. This policy perspective needs to be strengthened through an exclusive statute which also includes trivial details of the process to extend a principled chance of exoneration for such offenders.
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For example, the UK has its own method of rehabilitating the ex-convicts under the Rehabilitation of Offenders Act 1974 whereas in France, criminal records are held by a special service called the ‘National Judicial Record’. The system run under the Criminal Procedure Code of France (CrPC, France hereinafter) is a hybrid of legal (Article 133-12 to 133-17) and judicial (Article 702-1, 703, 712-22, 723-15, 775-1, 777) rehabilitation mechanisms. While in the USA, different Acts on expungement of previous criminal records of offenders are available in the States, such as, Texas, Washington, Ohio, Utah, New York, New Jersey, New Hampshire, Florida, Connecticut, Illinois, etc.
Ibid.
Nicky Padfield, “Judicial Rehabilitation? A View from England,” European Journal of Probation 3, no. 1 (2011): 36-49, https://doi.org/10.1177/206622031100300104.
Rehabilitation of Offenders Act 1974, Sec. 4 (1974).
Rehabilitation of Offenders Act 1974 (Exceptions) Order of1975, No. 1023 (1975).
Rehabilitation of Offenders Act 1974, Sec. 9 (1974).
See. Paul Samuels, Debbie Mukamal, After Prison: Roadblocks to Reentry: A Report on State Legal Barriers Facing People with Criminal Records (New York: Legal Action Center, 2004), https://law.stanford.edu/wp-content/uploads/sites/default/files/publication/259864/doc/slspublic/LAC_PrintReport.pdf. There are different Acts on expungement in various States of the USA, such as, the Fresh Start Act of 2011, Texas Code of Criminal Procedure, expungement or expunction laws of Washington, Ohio, Utah, New York, New Jersey, New Hampshire, Florida, Connecticut, Illinois, etc. In many circumstances, criminal records are not relevant to hiring decisions and would not be considered. Ten States, namely California, Connecticut, Illinois, Massachusetts, Michigan, New York, Ohio, Rhode Island, Utah and Wisconsin prevent the employers from considering arrests that did not lead to convictions in hiring decisions. Three States Arkansas, New Hampshire and New Mexico prohibit this consideration for selected employers only.
Code of Criminal Procedure of 2019, USA, Art. 55.01 (2019).
Jessica S. Henry; James B. Jacobs, “Ban the Box to Promote Ex-Offender Employment,” Criminology & Public Policy 6, no. 4 (2007): 755-762, https://doi.org/10.1111/j.1745-9133.2007.00470.x.
Martine Herzog-Evans, “Judicial Rehabilitation in France: Helping with the Desisting Process And Acknowledging Achieved Desistance,” European Journal of Probation 3, no.1 (2011): 4-19, https://doi.org/10.1177/206622031100300102.
The first, ‘Hundred Years Rule’ (Article 70-1 of CrPC, France) is based on the notion that, 'the old people should die in peace.' The other technique is called the 'Forty Years Rule' (Article 76 to 79, al. 2 of CrPC, France), this rule is applicable on those criminals who had been caught under serious crimes and had not re-offended for forty years; this certificate may be granted merely on the absence of reconviction. And the third method is that where some criminal records may be cleaned up after the lapse of three years (Article 133 of CrPC, France).
Various provisions of the CrPC, France apply to this mechanism, such as, Article 702-1, 703, 712-22, 723-15, 775-1, 777.
“Japanese Government Seeks to Reduce Repeat Offenders through Jobs Program for Ex-convicts,” Japan Times, February 14, 2018, https://www.japantimes.co.jp/news/2018/02/14/national/social-issues/japanese-government-seeks-reduce-repeat-offenders-jobs-program-ex-convicts/#.XocRzU8zbIV. See also, Public Information Office, Ministry of Justice, GoJ, Ministry of Justice (Government of Japan, 2016), http://www.moj.go.jp/content/001181040.pdf.
Prison Law of the People's Republic of China of 1994, Order No. 35 (1994).
Cameron Sumpter, “Reintegration in Indonesia: Extremists, Start-ups and Occasional Engagements” (The Hague: International Centre for Counter-Terrorism, 2019), https://icct.nl/publication/reintegration-in-indonesia-extremists-start-ups-and-occasional-engagements/. See also ——, “Reintegrating Extremist Prisoners in Indonesia: Easier Said Than Done,” March 16, 2017, https://thediplomat.com/2017/03/reintegrating-extremist-prisoners-in-indonesia-easier-said-than-done/. See also, ——, Yuslikha K. Wardhani and Sapto Priyanto, “Testing Transitions: Extremist Prisoners Re-Entering Indonesian Society,” Studies in Conflict & Terrorism 41, no. 12 (2019): 1-22, https://doi.org/10.1080/ 1057610X.2018.1560666.
Kamel Al-Khatti, “The Saudi ‘Binaa’ Program: Civil Rehabilitation in the Criminal Justice System,” European Eye on Radicalization, November 11, 2018, https://eeradicalization.com/the-saudi-binaa-program-civil-rehabilitation-in-the-criminal-justice-system/.
Aidan R. Gough, “The Expungement of Adjudication Records of Juvenile and Adult Offenders,” Washington University Lawuarterly1966, no. 2 (1966): 147-149 (147-148).
For a detailed discussion see, Farooq Yousaf Ghurki v. Federation of Pakistan, [2017] PLD 159 (Pak.); Shabina Riaz Khan v. Federation of Pakistan and others, [2016] CLC 458 (Pak.); Rizwan Zouq v. Returning Officer NA 162, SWL-III, Sahiwal & Another, [2013] CLC 271 (Pak.); Munir Ahmad v. Election Commission of Pakistan, Islamabad, [2013] CLC 1335 Bulochistan (Pak.); Ghulam Akbar Lang v. Dewan Aashiq Hussain Bukhari and Others, [2012] SCMR 366 (Pak.); Muhammad Rizwan Gill v. Nadia Aziz and Others, [2010] PLD SC 828 (Pak.); Muhammad Fiaz Khan v. Ajmer Khan and Another, [2010] SCMR 105 (Pak.).
Eighteenth Amendment amended this particular sub-clause, previously it was given as, “he has been convicted by a court of competent jurisdiction on a charge of corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force.”
Malik Umar Aslam v. Mrs. Sumaira Malik and Others, [2014] SCMR 45 (Pak.).
Jehangir Khan Tareen v. Muhammad Siddique Khan Baloch, [2014] SCMR 308 (Pak.).
The same principle was elaborated in Abdul Ghafoor Lehri v. Returning Officer, PB-29, Naseerabad-II, [2013] SCMR 1271 (Pak.); Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and Others, [2013] SCMR 1655 (Pak.); Malik Iqbal Ahmad Langrial v. Jamshed Alam and Others, [2013] PLD SC 179 (Pak.); Mian Najeeb-ud-Din Owaisi and Another v. Amir Yar Waran and Others, [2013] PLD SC 482 (Pak.); and Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and Others, [2016] SCMR 01(Pak.). The courts used the principle mentioned in Article 62 and 63 with regard to exoneration of ex-convicts in many other cases. For example, see, Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-I and Others, [2013] SCMR 1246 (Pak.); Syed Yousaf Raza Gilani, the Prime Minister of Pakistan v. Assistant Registrar, Supreme Court of Pakistan, [2012] SCMR 466 (Pak.); Contempt Proceedings against Syed Yusaf Raza Gilani, the Prime Minister of Pakistan, [2012] SCMR 909 (Pak.); Muhammad Azhar Siddique v. Federation of Pakistan, [2012] PLD SC 774 (Pak.); Ch. Muneer Ahmad and Others v. Malik Nawab Sher and Others, [2010] PLD Lahore 625 (Pak.); Imtiaz Ahmed Lali v. Ghulam Muhammad Lali, [2007] PLD SC 369 (Pak.); Malik Umar Aslam v. Sumaira Malik and Another, [2007] PLD SC 362 (Pak.).
For a detailed discussion see, Ghulam Sarwar Khan Lalwani v. The State, [2016] PcrLJ Lahore 1343 (Pak.); Abdul Qadir Tawwakul v. NAB Sindh, [2016] PLD Sindh 105 (Pak.); The State v. Anwar Saifullah Khan, [2016] PLD SC 276 (Pak.); The State through Chairman NAB v. Hanif Haidar, [2016] SCMR 2031(Pak.); Mst. Tehseen and Two Others v. NAB, [2013] PcrLJ 1137 Sindh (Pak.)
Verse 4 of Surah-Al-Noor says, 'And those who launch a charge against chaste women, and produce not four witnesses (to support their allegation), —-Flog them with eighty stripes, and reject their evidence ever after: for such men are wicked transgressors.' Verse 5 of Surah-Al-Noor states, 'Unless they repent thereafter and mend (their conduct): for Allah is oft-forgiving, most merciful.'Justice Tanzil-Ur-Rehman writes in his judgment given in Haider Hussain and Others v. Government of Pakistan and Others, [1991] PLD FSC 139 (Pak.), that verse 4 and 5 of Surrah Al-Noor became the source of drafting of first two provisos.
For a detailed discussion see, Haider Hussain and Others v. Government of Pakistan and Others.
Zahir Shah v. The State, [1986] PCrLJ FSC 1503 (Pak.).
Muhammad Ilyas v. The State, [1997] SCMR 25 (Pak.). See also, Mian Saif-Ur-Rehman Joya v. Returning Officer PP-226, Sahiwal-VII, Sahiwal, [2013] CLC ETP 1017 (Pak.).
Didar Ali v. The State, [1994] PLD Karachi 309 (Pak.).
Sami Ullah Baloch and Others v. Abdul Karim Nousherwani and Others, [2018] PLD SC 405 (Civil Appeal No. 233/2015)
Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/ Member National Assembly, Prime Minister's House, Islamabad and 9 Others, [2017] PLD SC 265 (C. M. A. No. 4978 and 2939 of 2017 in Constitution Petition No. 29 of 2016 ETC).
Before the insertion of Constitution (Eighteenth Amendment) Act 10 of 2010, Article 62 had sub-clause (1) (g) saying, ‘[a] person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless: - he has not been convicted for a crime involving moral turpitude or for giving false evidence.‘ However, the Eighteenth Amendment successfully removed the particular sub-clause from the freshly provided version of Article 62 and now that sub-clause is no more inclusive for fulfilling the requirements for becoming the member of Parliament. Nevertheless, as a food for thought while discussing Article 3 (proviso 2) of Qanun-e-Shahadat and Article (1) (g) of the Constitution, a new situation arises, that is Article (1) (g) disqualifies the perjurer and Article 3 (proviso 2) of Qanun -e-Shahadat gives the discretion to the court to accept the repentance of the previously convicted falsifier. This is difficult to balance two situations for the court as the Constitution as supreme law of the state is carrying a different requirement whereas Qanun -e-Shahadat is thrashing out the principles based on Quran and Sunnah [Article 3 (proviso 2)] which might also not be refuted being part of the basic Islamic legal structure of the state.
Article 68 of Qanun-e-Shahadat says, ‘[p]revious bad character not relevant, except in reply: In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it become relevant. Explanation 1: This Article does not apply to cases in which the bad character of any person is itself a fact in issue. Explanation 2: A previous conviction is relevant as evidence of bad character.‘
The procedural part of these explanations has been discussed under Section 340 of the Code of Criminal Procedure, 1898 (CrPC hereinafter). Section 348 and 511 of CrPC are also relevant to the provision. While going into the details of rules relating to previous convictions which make them relevant for the court of law in specific cases as necessity are those when the recurrence of crime may enhance the punishment of accused. Such possibilities are discussed under Section 245-A, 265-I and 348 of the CrPC. Here in such cases it appears as standard procedure to inquire for previous convictions by the court as necessity to conclude the extent of particular sentence nevertheless this legal cause of enhancement of punishment for recurrence of crime might not become relevant evenly in all cases such as the cases discussed above with relation to Qanun-e-Shahadat.
Pir Mazharul Haq and Others v. The State through Chief Ehtesab Commissioner, Islamabad, [2005] PLD SC 63 (Pak.).
The principle of ‘intrinsic non-availability of time limitation’ as used by the Supreme Court to interpret Article 62(1) (f) has been extended here.
A number of international legal documents demand the smooth reintegration of ex-convicts. For example, United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) of 1955 also known as SMRs; Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment 1988; Basic Principles for the Treatment of Prisoners of 1990; United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules) of 1990; United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules) of 2010; International Covenant on Economic, Social and Cultural Rights of 1966; International Covenant on Civil and Political Rights of 1966. This emphasis is especially for two reasons: first, to protect the human rights of the ex-convicts; second, to curb the phenomenon of recidivism and to improve the public safety. Pakistan, being the member of international community needs to comply with these documents by devising exclusive reintegration laws for the ex-convicts. Such law would also be highly benefitting in national perspective. It will help to safeguard the potential human and fundamental rights of the ex-convicts. The smooth legal and consequent social reintegration would help the ex-convicts to get rid of the criminal intents.
These are the occupations which are excluded from the cover provided through the Rehabilitation of Offenders Act 1974 (ROA)and come under the ambit of Exceptions Order of ROA, 1975. As an effect of these exemptions, the potential employers are legally entitled by the Act to inquire thoroughly about the previous criminal records (including the ‘spent’ or ‘unspent’ convictions) of their prospective employees (however the criminal records can be checked only once the employing agency has decided to hire a particular person and not before that) under the public protection agenda. The exclusions cover, inter alia, judicial appointments (however the right of non-disclosure of spent convictions [Section 4 (2), (3)(a)(b) of ROA] does not apply in certain circumstances to justices of the peace), procurators fiscal, medical practitioners [A person who is a member of profession regulated by body mentioned in the National Health Service Reform and Health Care Professions Act of 2002, Section 25 (3).], dental hygienists, nurses, solicitors, chartered accountant, certified accountant, firearms dealers, trustees of a unit trust and directors and managers of insurance companies or the professionals who can have a direct access to children or the other vulnerable classes of society as young or disabled people, the old, etc, or to enter the armed services, chartered legal executive of other authorized person and the receiver appointed by the court of law. The conviction against sale or purchase of a public office or a neglect of duty of public office may become the cause of permanent disqualification from holding that particular office. There is no scope for extension of these professions by analogy [For a detailed discussion on issue see, Property Guards Ltd. v. Taylor and Kershaw, [1982] IRLR 175, EAT (UK.). Except these exempted cases, the law penalizes the unauthorized disclosure of spent convictions in any other case by anyone [The ROA, Section 9]. The other employers are prevented from repudiating a contract or to justify a dismissal [For a detailed discussion on issue see, Hendry v. Scottish Liberal Club, [1977] IRLR 5, Industrial Tribunal (UK.) on the basis of non-disclosure of a spent conviction even if they had requested full disclosure. The Rehabilitation of Offenders Act of 1974, Section 4(2)(b), 4(3)(a) (1974). For a detailed discussion on issue see, Walker v. Greenock and District Hospital Board, 1951 SC 464, 1951 SLT 329.]. The Act also allows a person with spent conviction to recover damages for defamation where the conviction has been published; in spite of the fact it was true, provided they can show that the publication was malicious. Herbage v. Pressdram Ltd, [1984] 2 All ER 769, 1 WLR 1160, CA. [UK]