Constitutionality of Criminal Law
Modern states claim to assert their monopoly over lawful use of force within their jurisdiction through criminal law; in this sense, criminal law enables states to maintain their internal national security and to keep order in the society. Historically, Pakistan’s criminal law has not been rewritten. Colonial legal codes in the form of Pakistan Penal Code, 1860 (general criminal law), and the Code of Criminal Procedure, 1898 (general criminal procedure), remained applicable to this day, perpetuating the impression that the subject of criminal law is federal in nature. This is far from the truth. The constitutional record shows that,
in its original scheme, the Constitution of Pakistan, 1973, kept the criminal law, criminal procedure and evidence on Concurrent Legislative List (CLL) permitting both the federal and provincial legislatures to legislate on the subjects. Later on, after the introduction of the Eighteenth Constitutional Amendment to the Constitution in 2010, despite the abolition of the CLL, the three subjects were preserved for concurrent legislation by both the federation and the provinces (Articles 142 and 143). The point, however, was not so interpreted by the provinces that started dealing the criminal law, criminal procedure and evidence as their exclusive domains. Such treatment of the criminal law has far-reaching effects as it not only affects the working of the criminal justice system, but also has implications for criminal laws that are used by the law-enforcement agencies for national security such as the Anti-Terrorism Act, 1997.
Sentencing and criminal law and procedure are closely related. To appreciate their relationship, it would be appropriate to examine the concept of sentencing. Black’s Law Dictionary defines sentencing as ‘the judicial determination of the penalty of a crime’. It has also been explained as the ‘apex’ of the judicial process. It is the end product of the whole of the criminal justice system. In Pakistan, debates on the severity of punishments have been part of the public discourse without taking into consideration the law related to sentencing. Practically, the punishment prescribed by the law is applied by the judge as per his/her own discretion, and by doing so, the chances of legislative intent being ignored or diluted cannot be ruled out. The sentencing has been introduced in two formats, i.e. through guidelines and through legislation. In Pakistan, the law of sentencing is stated in Section 562 of the Code of Criminal Procedure, 1898, where a convict under the age of twenty-one years can be released on probation, instead of being imprisoned. The law, however, is seldom put to practice. In addition, the High Court Rules and Order (Part A, Chapter 19, Volume III) provides for guidelines on sentencing, linking it to variety of considerations such as ‘the motive of crime, its gravity, the character of the offender, his age, antecedents … aggravating circumstances’ and previous convictions. The High Court Rules and Order (being a delegated legislation) also remained dormant in its application.
The Punjab Sentencing Act, 2019
To the already available legal provisions and without repealing or reconciling with them, a new law titled as the Punjab Sentencing Act, 2019, has been enacted. The law is first of its kind as it is dedicated to the subject. It has spelled out the following purposes of sentencing (Section 4):
- punishment of offenders;
- reduction of crime including reduction of deterrence;
- reform and rehabilitation of offenders;
- protection of the public; and
- making of reparation by offenders to persons affected by their offences.
It may be noted that purpose ‘e’ stated above may fortify the much-criticized compounding regime that has resulted in privatization of criminal law as a matter between private persons. The courts are required to consider the above-stated purposes along with the lists of aggravating and mitigating factors before determining the sentence of an offender. The lists of aggravating and mitigating factors are long and increase the discretion of judges instead of structuring it. In case of offenders against children, additional aggravating grounds have been numerated in the law (Section 8). In the same manner, the offenders involved in religious and terrorism cases are also to be sentenced harshly by providing for additional aggravating grounds in such cases (Sections 9 and 10). The law applies only in cases where the offences are punishable with ‘a time range imprisonment’ and are not coupled with capital punishment (Sections 3 and 4). Though seasoned judges always provide for the reasons of their determination of sentences, the law, for the first time, obliges judges by law to state the reasons for determination of sentencing and requires them to use a grid of sentencing zones against range of punishments (Section 13). The Schedule to the law provides four gradual zones (A, B, C and D) against seven ranges of punishment. It is to be seen how the two-dimensional sentencing grid will work in practice as the non-compliance with the law has no legal consequences for the judges. The law also provides for a Sentencing Council, an executive body to ‘develop and issue’ guidelines (Section 21).
The federation and the provinces can legislate in domains of the criminal law, procedure and evidence. In practice, however, the constitutional scheme is not being followed and each province is trying to carve out its own criminal law without taking into account full scope of Articles 142 and 143 of the Constitution of Pakistan. Through the Punjab Sentencing Act, 2019, however, an attempt has been made to ensure that minimum punishments are determined by the courts in appropriate cases. It may, however, be noted that without the cooperation of the Federation and the Provinces, the force of the criminal law and procedure will be limited as the criminal justice system crisscrosses the provincial and federal structure in an interdependent manner. Pakistan’s leadership of the justice sector may be urged to take wisdom from the dual sovereignty doctrine of the US that treats both the Federation and the States as sovereigns when it comes to enforcing criminal laws of the country. In the latest case of Gamble v. the United States (2018), the Supreme Court of the United States observed:
“…Yes, our Constitution rests on the principle that the people are sovereign, but that does not mean that they have conferred all the attributes of sovereignty on a single government. Instead, the people, by adopting the Constitution, ‘split the atom of sovereignty’.”
May be, it’s time for Pakistan to consider ‘splitting the atom of sovereignty’ between the Federation and the Provinces.
The author is an independent researcher
and has done his BCL from the University of Oxford. Email: email@example.com