Source: International Crisis GroupA corrupt and dysfunctional prison system has contributed to – and is a manifestation of – the breakdown of the rule of law in Pakistan. Heavily overpopulated, understaffed and poorly managed, the prisons have become a fertile breeding ground for criminality and militancy, with prisoners more likely to return to crime than to abandon it. The system must be examined in the context of a deteriorating criminal justice sector that fails to prevent or prosecute crime, and protects the powerful while victimising the underprivileged. Yet, while domestic and international actors alike are devoting more resources to improve policing and prosecution, prisons continue to be largely neglected. The Pakistan Peoples Party (PPP)-led government at the centre and the four provincial governments, as well as the country’s international partners, should make penal reform a central component of a criminal justice reform agenda.
Pakistan lacks a systematic program for the capacity building of prison staff, while existing regulations on postings, transfers and promotions are frequently breached because of nepotism and political interference. Given weak accountability mechanisms for warders and prison superintendents, torture and other brutal treatment are rampant and rarely checked. Moreover, with out-dated laws and procedures, bad practices and poor oversight, the criminal justice system is characterised by long detentions without trial. As a result, prisons remain massively overcrowded, with nearly 33,000 more prisoners than the authorised capacity. The large majority of the total prison population – around 50,000 out of 78,000 – are remand prisoners awaiting or on trial. With more than two dozen capital offences, including many discriminatory provisions that carry a mandatory death penalty, the death-row population is the largest in the world, though the current government has placed an informal moratorium on executions.
Circumventing the justice system, the military has detained thousands of people, ostensibly suspected of terrorism but including thousands of political dissidents and others opposed to the military’s policies, especially in Balochistan, Khyber Pakhtunkhwa (KPK) and the Federally Administered Tribal Areas (FATA). Its methods include torture, collective justice and extrajudicial killings. By swelling public resentment, such practices are more likely to create terrorists than counter them. Instead of establishing parallel, unaccountable and illegal structures, countering militancy requires the reform of a dysfunctional criminal justice system. The separation of low-level offenders and suspects, particularly impressionable youth, from the criminal hardcore is particularly urgent.
In violation of the Juvenile Justice System Ordinance (JJSO), children continue to be arrested for petty offences and illegally detained for days and even months; in the absence of adequate facilities, their exposure to hardened criminals, including jihadis, makes them more likely to embrace crime, including militancy, after they are released than before they were imprisoned.
Yet, with jails overflowing, it is nearly impossible to isolate hardened criminals, including militants, from remand prisoners, juveniles and low-level or first-time offenders. Provincial governments are trying to reduce overcrowding by constructing more prisons and barracks. This strategy is not sustainable. The problem is not simply one of inadequate infrastructure. The prison population will continue to increase so long as bail rights are rarely granted, and accused persons are seldom brought to court on their trial dates. Recent legislation under the current government that makes it easier to obtain bail is a step in the right direction, but only if consistently applied by the courts.
There is, however, an acute shortage of probation and parole officers and no systematic programs to rehabilitate released prisoners. In addition to improving police and judicial functioning, the national and provincial governments should invest in establishing an effective probation regime; creating alternatives to imprisonment for petty crimes, such as fines, community service, community confinement and mental health and drug treatment; and providing free legal aid to those who cannot afford it, including by fully resourcing public defenders’ offices. Strong action should also be taken against police and prison officials for often failing to get prisoners to court on their trial dates, or often only doing so after bribes have been paid.
Like the police and courts, the prison system is a major contact point between citizen and state, reflecting the public’s access to justice. Major reforms are necessary to restore public confidence in the government’s ability to enforce the rule of law while protecting the rights of all citizens. Having ratified the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in June 2010, the government should allocate the necessary human and financial resources and meet its obligations under these international treaties, so as to ensure that torture and other ill-treatment of detainees are stopped and that officials and institutions responsible for such practises are held accountable. If Pakistan’s prison system remains brutal, opaque and unaccountable, it will continue to aggravate rather than help resolve the country’s major internal security challenges.
RECOMMENDATIONS
To the Federal Government of Pakistan and Provincial Governments:
1. Repeal the Actions (in Aid of Civil Power) Regulation 2011 for the Federally Administered Tribal Areas and Provincially Administered Tribal Areas, and replace the Frontier Crimes Regulations (FCR) 1901, with an updated Penal Code, Criminal Procedure Code and Evidence Act, in accordance with Article 8 of the constitution and internationally accepted human rights standards.
2. Commit to the abolition of torture and other ill-treatment of detainees in all places of detention, and with the necessary financial and human resources take tangible steps to implement international conventions that Pakistan has ratified, including the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).
3. Address overcrowding in prisons by:
a) enforcing existing bail laws, and urging the high judiciary to hold trial court judges accountable for failing to grant bail according to the law;
b) passing a new law requiring judges to allow bail unless there are reasonable grounds to believe the prisoner would abscond or commit further offences; and
c) reforming the sentencing structure for non-violent petty crimes and first-time offenders to include alternatives to imprisonment, such as fines, probation, community service and psychological and drug treatment.
4. Implement the federal Public Defender and Legal Aid Office Act and pass and implement provincial equivalents without delay; and fund and support NGOs providing free legal aid to prisoners until such offices are established.
5. Improve the quality of prison staff by:
a) making the inspectorate of prisons an autonomous organisation instead of an attached department of the provincial home ministry;
b) raising salaries, and linking salaries and privileges to those of the police;
c) ensuring recruitment on merit and streamlining promotion mechanisms to allow the most deserving to be rewarded with career advancement opportunities;
d) building a training institution in each of the four provinces; and
e) improving the quality of instruction provided to prison staff through the introduction of modern curricula, based on international standards.
6. Crack down on criminality and improve prison security by:
a) taking action against prison officials for failing to enforce security-related regulations;
b) preventing access to mobile phones; taking steps to reduce substance abuse and other criminal activity within prisons; and taking action against prison staff responsible for providing prohibited material to inmates;
c) training prison staff to more effectively quell riots and repel attacks by prisoners and providing the staff with adequate equipment; and
d) installing jamming devices and CCTVs in all major prisons.
7. Improve conditions for prisoners and ensure that they are consistent with legal requirements by:
a) constituting criminal justice coordination committees at the national, provincial and district levels, as mandated by Police Order (2002), and authorising them to regularly visit prisons to examine conditions, determine prison administrators’ adherence to law and raise prison-related issues with responsible government officials and policymakers;
b) constituting public safety commissions at the national, provincial and district levels, as mandated by Police Order (2002), and extending their authority to hold prison officials accountable for failure to uphold prisoners’ rights and to maintain required standards in prison administration;
c) ending the practice of putting condemned prisoners in death row cells while their appeals are still pending, shifting them instead to general barracks;
d) investing in better medical care for inmates by allocating more resources and engaging with philanthropists and NGOs to provide better facilities;
e) building separate detention facilities for women prisoners and ending the practice of housing them in separate barracks within male prisons;
f) eliminating the practice of keeping juveniles in regular prisons, including by establishing functional borstal institutions in each province; and
g) amending the Anti-Terrorism Act (ATA), 1997, to require juveniles charged under it to be tried in juvenile courts.
8. Take steps toward the reintegration and rehabilitation of released prisoners by:
a) investing in education services and vocational training for inmates, particularly youth and women, to inculcate skills needed to re-enter the workforce;
b) improving the functioning of probation and reclamation departments by developing specialised training and curriculums for probation officers and prison staff in the National Academy for Prisons Administration (NAPA), the Punjab Prisons Staff Training Institute and other training institutes;
c) directing each provincial home ministry to assess the number of probation and parole officers required by existing and expected caseloads and to increase their numbers accordingly, while providing them with proper offices and adequate facilities, including transport; and
d) engaging with probationers’ family members and encouraging community involvement in their rehabilitation and reintegration.
9. End military-devised “de-radicalisation” programs, developing instead a holistic policy aimed at preventing jihadi recruitment, including separating juveniles and other minor and first-time offenders from the adult prison population; making bail the norm rather than the exception; and establishing an effective probation and rehabilitation regime along the lines suggested above.
To the International Community, in particular the U.S.:
10. Support the government’s reform agenda, allocating a substantial portion of civilian law enforcement assistance to prison reform, with a focus on:
a) improving training programs for prison staff based on revised curriculums that bring existing prison procedures in line with international standards;
b) supporting the computerisation of prison and probation records;
c) working with training institutes to improve training for probation personnel and with reclamation officials/departments to rehabilitate and reintegrate released prisoners into society and the workforce; and
d) supporting NGOs that provide legal aid, education, and vocational training to prisoners, particularly juveniles.
11. Urge the Pakistan military to provide international and domestic humanitarian agencies, including the International Committee of the Red Cross (ICRC), complete access to the estimated thousands of detainees, including juveniles, under its custody, including that of its intelligence agencies, in Balochistan, Khyber Pakhtunkhwa and FATA.
12. Condition military assistance on the Pakistani military immediately ending practices that violate international conventions and basic international legal standards, including illegal detention, collective justice, torture, and extrajudicial killings; and scrutinise the military’s actions when reporting on Pakistan’s compliance with the ICCPR, UNCAT and other treaties.
