Dr Tariq Rustam
My bald head is better than your bad haircut, exudes a confidence and pride of a sort. But it was not so always. Shaving one’s head used to be a punishment imposed by the community for doing something wrong or shameful. But not anymore; the offenders are put behind bars now.
Our old uncle(Chacha Rasheed) came from village to see someone at Lahore’s Camp Jail. He was in a terrible mood when he returned. Why are you sending so many people to jails? They committed crimes,I replied casually. What crimes? He asked in irritation. It is okay with murders, attempted murders, rape, robberies, and other serious crimes but you are sending people there who are involved only in petty offences. Even women, children, mentally ill and drug addicts are languishing there in perilous circumstances. And by the way what have the beggars to do with the prison? He said almost mockingly.
Chacha! You don’t seem to be okay, what troubles you, I asked with an inquisitive smile. In reply he almost burst out; you know for what my friend, I have come to see, is in jail? On a petty squabble with his neighbor on some trivial issue; the case was registered for threatening to kill under section 506-B PPC. Didn’t he threaten his neighbor, I asked vacuously. He looked angrily at me; Basheer (his friend) would not, a perfect gentleman he is, and even if he did, is it a crime for which a 60 years old man should stay in prison for three months? An embarrassing punch, I received and got attentive.
What should we do with the people committing such crimes? He replied in a deeply thoughtful tone; why don’t you people think of something other than stuffing in the jails. In our traditional system we used to decide such cases in our village panchayat. The guilty was awarded some sort of physical punishments like some treatment with chappalor shaming sentence like shaving head or blackening of face or riding a donkey etc. They were very effective and society was peaceful. But this is not acceptable these days for they are considered against the human dignity, I agitated! Rather such actions have themselves become a sort of cognizable offences these days; courts take an adverse view. Oh! this is nothing but disruptive of the social order, he reacted; but there can be other ways not involving such ‘cognizable punishments’, the sarcasm in Chachas tone was obvious.
As he engaged himself with my kids I set upon working on the subject. Going through the literature on the issue I came to realize he was right. Jails are already overcrowded, disease and squalor are common, food and hygiene are deplorable and not to speak of the treatment the prisoners meet at the hands of the prison staff- degrading and violative of all human rights.His exasperation with prison seemed justified. Then does incarceration achieve its objectives of deterring the crime or reducing reoffending? Research answers, no. Recidivism among the those serving, particularly short sentences, remains high and reduction of crime is only limited to the period during which the criminals remain behind bars. As far the correction or reformation of offenders, the situation is far from promising; it may, indeed, be the exact opposite of the desired outcome. The petty offends are likely to metamorphose into bigger ones; hence the prisons are sometimes nicknamed as universities of crime. From the governments point of view, the prisons are quite expensive. What to do then?
Chacha was right; there could be many ways to handle this without indulging in degrading practices. And like in so many other things we need not re-invent the wheel; some of the non-custodial punishments are already in practice while many new experiments are underway in advanced countries. We only need to tailor them according to our social and cultural needs and legal requirements. There is a whole range of non-custodial punishments which are imposed in various parts of the world like verbal or economic sanctions (fines), conditional discharge or suspended sentences, compensation or confiscation or expropriation orders, status penalties, probation, community service, house arrest or referral to attendance center or electronic surveillance etc. You were right Chacha: I spoke a bit louder to draw his attention as he finished his lunch and explained him what I had just read. Didn’t I tell you, where there is a will there is a way, he responded with an elated smile; he looked peaceful now, after all he was vindicated.
Look! Son: whatever punishment you give it should not be infringing the rights either of the offender or the victim, nor should it be detrimental to the goals of public safety and crime prevention. Moreover, it should be so that both victim and society should see it as punishment and the offender should experience it as punitive. For instance, while imposing fines you need to calculate it in a way that it should have an equal impact on both rich and the poor. Fixed fines hit poor more than the rich. So in order for a fine to have an equal penal bite, you need to link it to the financial status/ income of the offender in addition to the severity of the sentence. Just like, while giving a punishment of sit ups to young offenders in our schools, we give 100 to the weaker and 500 to the stronger. You understand what I mean? And I was stunned at his country wisdom as this is already in practice in many advanced countries including in Britain.
Most effective in my view is to put petty offenders to some useful work, he continued and I could make out, he was talking about community sentences. We in our village used to give them some work of collective benefit like trimming the trees, repairing the water channels or helping some family who did not have an able-bodied member to work for them. You, in the cities, have innumerable tasks to put them on. Give them some community work, according to their background and suitability for a particular kind of work. From trimming the hedges to painting the walls and buildings to working in hospitals and schools, you have a hell lot of things which can be done as community service. Ask your legislative assemblies to make all such offences punishable with community sentences for which punishment in the law is imprisonment ‘or’ fine.
You also need to revive the restorative justice practices– the panchyatisystem I mean. But Chacha: don’t dump on us, your part of the burden; you must take this upon yourself, being elder of the village, I said with a respectful naughtiness. Ah! The rural society is no more the same; we lost the culture of social controls, everyone submitted to; nobody cares now, his voice turned glum! Yet it can be revived under government patronage. Set up a separate specialized wing within the police or increase the number of ADR- alternate dispute resolution courts- backed by appropriate legislation. They should have the powers to resolve disputes and pass orders for compensation, confiscation or expropriation. When you settle as heinous a crime as murder with diyyat_monetary compensation for murder or hurt in Islamic law_ there should not be any problem with the petty ones. This will also help your government cut down on prisons budgets, in addition to reducing the burden on police, prosecution and courts.
Then you keep many in detention unnecessarily during the trial or even before the start of the trial, he continued. But Chacha: what if there is reasonable suspicion that the accused has committed an offence and where there are strong reasons to believe that, if released, he/she would abscond or commit a serious offence or interfere with the course of justice, I enquired with a concern. You are right son, I am not suggesting to let everybody off, he replied softly. Complete your investigations speedily and send the complete challans without delays so that trials can start. Where necessary, release them on pledging property or other financial security, surrendering their CNIC and travel documents if any, submitting to report periodically to court, police or other authority and accept supervision by an agency appointed by the court. I agreed happily and also explained him the concept of electronic surveillance, restriction of movement to or from certain areas, day or night curfews, staying at a particular address for certain specified period of time violation of which makes the accused liable to longer imprisonment than he/she would have been awarded in ordinary course.
A lot more can be thought and said on this but I don’t want to miss my bus; he muttered, rising abruptly from his chair. I dropped him at the bus station. He cast a curious glance at me as he got into the bus.Perplexed by the shimmer of his eyes, I switched on my car hurriedly, and kept thinking all the way. How wise Chachawas and how incisive his rustic wisdom!
— The writer is a senior police officer. He can be reached at [email protected]