PROBATION DETENTION AS A LAST RESORT

Transcription

1 PROBATION DETENTION AS A LAST RESORT ne of the easiest ways to resolve the problem of overcrowded prisons in Pakistan is Oby invoking the system of probation and parole provided under the law. Probation is particularly useful in cases of offenders who are not yet committed to a life of crime. The relevant laws have existed for decades in Pakistan, where over seventy percent of the prison population consists of offenders whose sentence terms range from one month to one year. Generally, most have landed behind bars as a result of petty disputes, such as fights over land or water, or due to some family feuds. Most are devoid of any criminal characteristics: their interaction in jail with confirmed criminals and professionals only harms them rather than doing them any good. Attempts have been made to find out and remove the various causes of crime. Once a crime is committed, the treatment of the offender becomes paramount, and endeavors should be directed more to preventing the offender committing a second offense than to his merely paying retribution for the first. Such a course is useful not only to the offender but also to the society as a whole. Undue prison sentences are now seen as contributing, by force of contact, to making a firsttime offender commit further offenses and in some cases become, ultimately, a habitual criminal. The great value of probation methods, therefore, lies in the fact that it helps to separate the raw and firsttime offenders from the hardened criminals in jail. Society for the Protection of the Rights of the Child

2 An Alternative to Imprisonment arious alternatives to imprisonment Vhave evolved during the past century. Probation is one alternative, in which imprisonment is suspended, the final judgment is postponed or a judicial warning is issued. This gives the offender the opportunity to readjust and reestablish himself by living under normal conditions of life as a member of a healthy community environment, subject to conditions imposed by the court and under the supervision and friendly guidance of a probation officer. The restrictions and obligations imposed on the probationer are so designed as to facilitate and promote the process of r e h a b i l i t a t i o n. T h i s p r o c e s s o r probationary treatment is nonpunitive, but it is certainly not without a certain amount of inconvenience and hardship. Thus, the aim of probation is social rehabilitation without punishment. But it is not merely dismissal of the charge. In probation, the punishment is only suspended and personal supervision and certain obligations and restrictions are added. The legal sanctions are behind the whole process. If the probationer does not cooperate in fulfilling the obligations, or if he commits another offense during the probationary period, the punishment of imprisonment is revived. Three Types of Offenders Offenders can be classified into three categories. The first group, about onethird of the total, consists of offenders who have stumbled into an offense accidentally or incidentally but find themselves on the road to recovery by realizing their fault soon after committing the offense. The second group, almost half of the offenders, however, is the real problem. Driven by temperament, quarrels over land or water, broken homes, family troubles and other similar disputes, they are borderline offenders who must be rehabilitated. Their offenses may be serious, but their character and outlook on life are not criminal. After committing their first offense, offenders in this group can be reclaimed and recovered in a friendly atmosphere and through sympathetic supervision and guidance. It is in dealing with this group, however, that the administration generally shows neglect: far too many are sent to prison without trying other methods of care. It would be not only cruel to the offender, but also a disservice to the community to send the offender to prison if he could be dealt with more effectively and usefully through other suitable methods. The failure to provide such facilities to the deserving offender amounts to a denial of justice. The prison system should be the last resort and only for the third group of offenders, about fifteen percent of the total, which consists of the incorrigibles, the recidivists and the hardened criminals.

3 Constructive Approach nemployment and bad environment Uare regarded by many as the main factors responsible for crime. In probation, both factors are removed. A healthy environment is provided to a probationer, and the habit of hard work is inculcated, which helps to develop selfrespect and dignity of labor. Probation also helps to bind family ties and keeps the house from becoming a broken home. Successful probation thus benefits not only the individual offender but also the whole society. Personal Characteristics he selection of suitable offenders to be Tplaced on probation is vital to the system's success. The chief guiding factors in this decision are the offender's personal characteristics like the character, antecedents, health and social needs of the offender and the nature of the offense and any extenuating circumstances under which the offense was committed. Accordingly, undesirable short prison sentences of less than six months, which are generally given to over fifty percent of convicts in Pakistan, or between six months and one year, which cover another twenty percent could be avoided, effectively and costefficiently, if probation methods are adopted by the concerned authorities. Financial Advantage robation is an economical and Pp r o d u c t i v e a l t e r n a t i v e t o imprisonment. This financial advantage is due not only to the fact that supervision in the open is less expensive than the high costs of running a penal institution, but also because a person in prison is more or less an economic liability to society. Often the family of the offender, who is usually the only breadwinner, also faces economic hardship and must look for handouts from the government and society. A probationer, on the other hand, is able to earn his own livelihood and support his family through productive work.

4 Age & Health Irrelevant he provisions of the 1960 Ordinance do not consider age and health as factors Tjustifying grant of probation. This does not mean, however, that juvenile offenders are not entitled to probation. It only implies that age alone does not justify the grant of probation. Early and/or inappropriate involvement of youth in the criminal justice system has been recognized globally to have longlasting negative impact on them, as well as on society. Initiatives in the region have reinforced this fact with a demonstrated reduction in repeat offending. With childsensitive procedures and proper support, young offenders can change their behavior and become contributing members of society. Under section 10(1)(b) of the JJSO (the Juvenile Justice System Ordinance 2000), the police should inform the concerned probation officer immediately following the arrest of an under18. The probation officer is then expected to submit a Social Investigation Report to assist the court while considering the juvenile's case. Under section 10(2) of the JJSO, a child arrested for a nonbailable offense must be produced before the Juvenile Court within 24 hours of arrest. Under section 10(), a child arrested for a bailable offense should be released by the Juvenile Court on bail, with or without sureties. The release may be refused if it would expose the child to any danger, in which case the child could be placed under the custody of a probation officer, or a suitable person. The child, however, should not under any circumstances be kept in a police station. Health factors, meanwhile, can be taken into account at the time of discharging a criminal, but are not to be considered as a justification for granting parole. This exclusion is because the lawmakers are of the opinion that probation is not suitable to cases involving illhealth, physical or mental, and because proper and elaborate medical facilities may not be available to the machinery of the probation administration in Pakistan for some time to come. History of Probation in Pakistan In countries where probation is in vogue, the immense reduction in the prison population, compared with the past, is mainly attributable to the operation of the probation system. In view of this, the British colonial rulers modified the Code of Criminal Procedure in 192 by the insertion of sections 80 and 562 to 564 in an attempt to introduce the concept of probation in the Indian Subcontinent. The Government of the Punjab in 1926 passed the Good Conduct Prisoners Probational Release Act. It provided protection as well as guidance to the prisoner for his readjustment and rehabilitation in a free life. This system worked well and was adopted by the Government of West Pakistan in After independence, Pakistan tried to incorporate the concept of probation for juveniles in the Punjab Children Act 1952, the Punjab Youthful Offenders Act 1952 and the Sindh Children Act The first two were never enforced and the latter was implemented in two Divisions only after a gap of 19 years. The Probation of Offenders Ordinance 1960 ventually, the martial law government Eof Ayub Khan introduced Pakistan's first probation law in the shape of the Probation of Offenders Ordinance 1960 (No. XLV) at the Federal level. The law extended to the whole of Pakistan. The law, although limited in scope, is the first of its kind in Pakistan. It provides for two kinds of relief for the offenders, who could be either conditionally discharged or released on probation. The law, however, does not give arbitrary powers to a judge. The court must justify its decision to grant probation. The offender cannot insist upon probation, nor demand

5 Conditional Discharge it as a right. firsttime offender convicted of an Aoffense punishable with a sentence of less than two years may be granted conditional discharge, meaning either release after a simple admonition or conditional to a bond, with or without sureties, that he or she will not commit any offense and will observe good behavior for a period up to a year from the date of the order (sec. 4). In ordering conditional discharge, the court is required to consider the offender's age, character, antecedents and physical or mental condition, and the nature of the offense or any extenuating circumstances attending the commission of the offense. The court should also explain to the offender in ordinary language that if he or she commits any offense or does not maintain good behavior during the period of conditional discharge he or she could be liable to be sentenced for the original offense. If the offender fails to observe any of the bond conditions, the court can issue a warrant for his arrest and can also summon the offender and the sureties. Upon the offender appearing in the court, the court can either remand him or her to judicial custody until the case is heard or admit him or her to bail. After hearing the case, the court can sentence the offender for the original offense, or impose a fine not exceeding Rs. 1,000 (sec. 7). Conditional discharge is useful in offenses of trivial nature or where the offense is committed under peculiar circumstances where no punishment is warranted or the crime involved is such that it is not expedient to place the person on probation or the court is of the opinion that probation would unnecessarily burden the work of a probation officer, particularly at the cost of Supervision of a Probation Officer the other probationers. he Probation of Offenders Ordinance Talso empowers the court to issue a probation order, meaning the offender is placed under the supervision of a probation officer for between one and three years (sec. 5). However, males convicted of an offense under certain specified sections of the PPC or punishable with death or life imprisonment and females convicted of an offense punishable with death are not entitled to probation. The court, however, cannot pass a probation order unless the offender enters into a bond, with or without sureties, pledging not to commit an offense and to keep the peace and be of good behavior during the period of the bond, and to appear and receive sentence if called upon to do so during that period. The court also should not pass a probation order unless it is satisfied that the offender or one of his sureties, if any, has a fixed place of abode or a regular occupation within the local limits of its jurisdiction. Additional conditions could be added for securing supervision of the offender by the

6 Compensation/ Damages probation officer. In addition to discharging an offender or making a probation order, the court can order the offender to pay compensation or damages for losses caused to any person by the offender. However, the amount of compensation or damages and costs so awarded should not exceed the amount of the fine that the court could have imposed in respect of the original offense committed by the offender (sec. 6). Investigation by Probation Officer he probation officer's report should Tinform the court about the offender as an individual: about the offender's family and home background, work and capabilities, interests and associates, character and disposition, and health and mental outlook. The information collected by the probation officer, however, is made available to the court only after the offender's guilt is established and cannot, therefore, affect the offender's conviction. It is expected only to influence court's decision with respect to probation. Before taking any final decision regarding probation, the court is expected under the law to consider the facts of the case, the prosecuting agency's arguments and the probation officer's report. The Probation Period f the court decides that a particular case Iis fit for probation and passes a probation order, the offender is placed under the supervision of a probation officer. It then becomes his duty to advise, assist and befriend the probationer. The officer is expected to look into the probationer's immediate material needs, such as looking for a suitable job and accommodation. Even while the officer is attending to these needs, however, he should try to decide in what ways and for what reasons the probationer is maladjusted in the society. An ideal probation officer is therefore expected to fully utilize the period available to him in developing a relationship with the probationer with a view to enabling the offender to differentiate between right and wrong and to lead a useful and lawabiding life. The probationer may be kept in his home during the period of probation or elsewhere in a better and healthier environment as required by the court on the merits of each case. The question of engaging or employing the probationer in any congenial work or useful trade can also be left to the advice and discretion of the probation officer and the Probation Department. Breach of Conditions If a probationer breaches any of the conditions of his probation, but is not involved in any fresh offense, three options are open to the court: Amend the probation order, or insert new requirements, but not extend it beyond the statutory maximum limit of three years. Punish the offender for breach of probation order by levying a fine of up to Rs. 1,000. If the fine is not paid within the period fixed by the court, sentence the offender for the original offense. If the offender also commits a fresh offense, the court should also punish the offender for the original offense, apart from sentencing the offender for the new

7 Situation of Probation and Parole in Pakistan Probation Officers Parole Officers Probationers Parolees Province Male Female Total Male Female Total Male Female Juveniles Total Male Female Juveniles Total Punjab , , Frontier , , Sindh Balochistan Pakistan , , offense. The law envisages that normally a probation officer should be able to report to court in about 2,000 cases a year and also to be able to supervise about 50 cases of probationers at a time and sometimes even more. When the work of any particular court is not reasonably sufficient to justify the appointment of a fulltime officer, one officer can be entrusted with the task to cover two or more courts. The above table shows that there are only 70 probation officers in Pakistan and only two are women. Frontier, Sindh and Balochistan do not have a single female probation officer. Under Rule 22() of the Probation Rules, a female offender should not be placed under the supervision of a male probation officer. However, a husband and wife may be jointly placed under the supervision of a male probation officer. Because of Rule 22() and since no female probation officers are present in any district except Lahore and Faisalabad, it should not thus be surprising that only 52 women are on probation in Pakistan, 27 of whom are from the Punjab. Women and children are usually firsttime offenders and are more likely to get released on probation if the system could be properly utilized and if more female Conclusion probation officers were present. s a good physician uses the power of Aman's natural capacities for remedial purposes, so does probation provide and maintain conditions under which an offender can work his or her own passage through personal efforts. The offender's desire to reform is the vital and fundamental factor responsible for successful readjustment. The stronger the desire, the greater are the chances of complete success. In fact, no good worth the name can be done to an offender if he is lifted out of normal life and the family ties are removed from the offender; and the offender's right of selfdetermination are curtailed by depriving him of all the liberties. Due attention must be given to Pakistan's probation and parole system in order to improve the effectiveness and costefficiency of the judicial system, including prisons, improve prison conditions by reducing overcrowding and the burden on courts, and ensure the treatment of offenders as holders of human rights. Only then can it be said that justice has been served.

8 Using diversion not only reduces the number of children deprived of their liberty, but also decreases the rate of repeat offending by young people. Greater impact is likely to result from noncustodial interventions, which have also proven to be less costly. Laws and policies that recognize childsensitive procedures and diversions for juveniles are important. Multisectoral training on juvenile justice helps to strengthen collaboration and coordination among the key pillars of justice including civil society. The support of police officers is fundamental to the success of diversionary practices. Effective interventions must address the multiple root causes of a young person's criminal behavior. Prejudice and discriminatory attitudes towards young offenders are deeprooted and need to be addressed. Children and young people need to be consulted in juvenile justice programs. More strategic interventions are needed to deal with young offenders who are repeat offenders and/ or commit more serious crimes. Increased attention is needed to address the specific needs of girl offenders. Monitoring systems are needed to evaluate and assess the impact of pilot initiatives in juvenile justice and to support advocacy for legislative reforms. Society for the Protection of the Rights of the Child LAHORE No, 5th Floor, Rahim Complex, 1E, Main Market, Gulberg II Telephone: Lahore@sparcpk.org PESHAWAR ISLAMABAD Post Box 01 Telephone: Islamabad@sparcpk.org KARACHI No 5, 5th Floor, Bilour Plaza, Saddar Cantt Telephone: Peshawar@sparcpk.org Text: Anees Jillani & Arshad Mehmood April 2005 Quantity: 10,000 Photographs: Anees Jillani No 04, rd Floor, Kashif Center, Shahrahe Faisal, Telephone: Karachi@sparcpk.org This Publication has been produced by SPARC with the financial assistance of SDC (Swiss Agency for Development & Cooperation)