Refusal of Remissions and Anti Constitutional Discrimination breeds Deprivation..!

By Mir Shahnawaz Talpur

In several circles the government is still following former rulers’ and systems which inevitably needed to be reformed on priority bases either they may be remission policies for inmates across the country or from foreign policy to interior policies of state economical plans, etc.

The intelligentsia is latching unsatisfactory practice very closely, a question raises in their minds “Why ever each government continues same policies regarding remissions for prisoners?” all reconciliation and compromises are always open for the haves and for antisocial groups but nor for have-nots, politically arrested ones. Suppressed and social prisoners are always ignored, WHY?

Still many, political prisoners are incarcerated thus prisoners in jails stand false yet such claims by government makes a mockery of justice. Thousands of political workers are jailed across the country especially in Sindh and Balochistan jails are over crowded with political prisoners.

Abul Kalam Azad the great intellectual of the subcontinent had written that the “law in this region is like spider’s net, in which flies and mosquitoes are preyed but elephants and bulls break it and escape away safely.” And it really matches the prevailing legal conditions of our country at least. The “LAW” has become hanging cord for law abiding citizens. But the well known mother, “necessity” invents NRO like “legal” safe passages for upper class only, holy cow! It is not for thou you commons!

Virtuous and poor people are always deceived by thing blindfold on eyes of goddess of justice and the reason is given that the goddess of justice has no kinship with anybody.

In such a perlexive situation the pauper concludes that the goddess of justice is really indeed! In fact that is not blind but injustice has duded justice and we are forced to accept it. Once Javed Soomro reported from the BBC Urdu Service that since birth of Pakistan FIRs registered on cases were went for trail before courts 90% of them were not proved and found as false the people thrown in jail and left to rot their lives were completely destructed, their future was made darkened, they were destroyed physically, mentally, financially and economically.

Neither the law moved for them nor the goddess of justice had mercy on them. Claims of Human Rights Organizations and democratic forces or legislators never ever raised their voice for them. The values have entirely been changed, virtue is being sentenced and vice is being rewarded. Activists of other parties like MQM who where involved in various crimes like robberies, docoities, murder, kidnapping for ransom have been set free on parole or released under so called reconciliation laws. Surprisingly we see that supporters of suppressing rulers and helpers of dictatorship have been given relief but common men who watered democracy with their lives and blood have distantly been ignored. Alas! There is no remission for them. Recently, a high profile target killer affiliated with MQM – Ajmal Pahari who was involved in more then one hundred cases of high seals has been released, who was in headlines of almost all papers even in Supreme Court he was under remarks of learned justices of apex court yet he has been released. Within a year his cases either acquitted on boiled because no witness was ready to depose against him!!!

Comparatively the poor and pauper, if involved in such crimes due to hunger and poverty and all agencies move on against him very rapidly, arrest him and put him behind the bars to rot in. Now, the government is negotiating with Taliban and preparing the strategy for release of Taliban prisoners in Pakistani jails but not taking any serious steps for release of their own country men who are rotting in prisons there are no relief of them. Don’t do this to your subjects or in future mothers will frighten their babies, “Quiet or I will call democracy.” Such a discriminatory democracy would make way for this kind of proverbs. Discriminatory law, the anti terrorism act as tied all the acts falling under this law in one rope without classification as to its gravity and heinousness. No provision is left to dead with an incidental act happening by an ordinary person stretchable in one way or the other as an act of terrorism.

Would it be justified to define an act even more severe than to wage war as deserted in Aya 33 sure Al-Maidah Al-Quran the punishment of those who wage war against Allah and his messenger and strive with might and main for mischief through the land is: Execution of crucifixion on the cutting off of hands and feet from opposite sides or exile from the land that is their disgrace in this world and a heavy punishment in theirs in the hereafter further to this “Except for those who repent before they fall into your power in that case, know that Allah is oft-forgiving most merciful.”

The purpose of Quranic revelations providing punishment remained associated to the reformation of the society even to the rebels and insurgents on earth are also included if they repent before they are overpowered. The almighty Allah preferred reformation instead of disgusting mankind and after creature for their individual characters except for those who hold partner (s) to Almighty and don’t accept the righteousness as described in the Quran.

In order to deprive the prisoners of their lawful gaining of remissions ro the remissions announced on public rejoicing days, an unnecessary amendment was made in the Anti Terrorism Act during 2001 by inserting a new section 21-F restricting remission in article 8,9 and are in gross violation of article 25, Article 2 and Article 4 of the constitution of the Islamic Republic of Pakistan. Now being ultra versa to the constitution why should in remain in force. Let’s see in detail the role of remissions towards psychological rehabilitation of convicts to prove them a reformed personality after completion of their sentence. The grant of remissions needs to be associated to the willingness towards reformation/reparation instead of gravity of the offence.

The discriminatory legislation towards withholding of remissions neither bring any positive result in the personality of convicts nor does it prove on effective deterrent as experienced in the recent past.

Thus the focus in legislation should be to provide both the essentials of dispensation of justice i-e speedy trail and execution in either of the case.

The remissions are wrongly interpreted as in case of convicts serving rigorous imprisonment earns remissions as a working labourer earns leave during job. His entitlement to avail religious and national festivals cannot be taken away disentitling him for a simple reason that he is a convict of Anti-Terrorism Court/Act. Anything contrary to the foregoing statement is required to be declared cruel and discriminatory thus void.

The length of term of sentence or imprisonment itself provides sufficient leverage/discretion to the courts in offences declared grave/heinous. Refusal to grant of remission can be turned as double jeopardy as the convicts under these circumstances will have to undergo almost double of what is pronounced as prescribed for the offence.

The purpose was to show harshness towards such offenders to use the special laws as deterrent in nature but it would not be denying the fact that such a cruelty could not prevent incidences of offences scheduled under Anti Terrorist Act.

The dispensation of justice in criminal matters in both Islamic and Modern jurisprudence is to provide immediate and just punishment to the culprits. Crucifixion being the fastest remedy guilty of offences leading to such a punishment requires to be exercised without waste of time of time for the welfare of society. It would more appropriate to crucify instead of subjecting the convicts to face discrimination in the hands of law makers and courts.

Reformation of persons involved need to be basic consideration during service of sentence of imprisonment. Withholding remissions during service of the sentence is not only cruel and discriminatory but may result in refusal to mend one’s behavior for reformation and preparedness of the convicts to lead a peaceful and harmless life.

The discriminatory laws are certainly contrary to the human psychology and pass the message of being condemned once for all giving rise to refusal to reformation. As the term of punishment whatsoever ultimately of justice is to examine on its individual merits. Various acts have been defined as acts of terrorism but have been dealt with a black prevision of putting bar on the rights of accused under this act. Originally offenses against human body were declared as heinous crimes in chapter XVI of the PPC is exactly consistent with the Quranic injunctions. Making these acts as non-Quranic compoundable has eliminated the right of forgiveness form the victim of any such act defined under Anti Terrorism Act. The state being the only party to a non-compoundable offence should extend benefits on the basis of equality using rule of consistency to all such cases where the state is the only party against the offender.

Terrorism has now become a vast-phenomenon and has a broad definition according to the new enactment thus require classification of such act according to gravity and heinousness. Refusal to allow any concessions also requires to be attached to the category of the offence. Refusal to concession of remission for the purposes of exhibiting the kind of punishment as an exemplary for other intending offenders is nor fair and just. The experience of such cruel acts practiced under the Anti Terrorism Act proved a failure as this type of enactment was not successful in curbing the menace of such activities, rather proved contrary.

Since the promulgation of Anti Terrorism Act, 1997 and subsequent amendment in this ordinance has changed the definition of heinous crime because there is no difference between the offences committed by an ordinary individual maligned wrongfully with mala fide intention using circumstance and rigidity of the Anti Terrorism Act like kidnapping for ransom using law enforcement agencies also face the same rigidity ever after their misjudged conviction.

The current wave of massive terrorism carried by terrorist groups causing brutal and indiscriminate deaths need to bed separated from the ordinary crime.

All other acts should be tried in ordinary courts under ordinary law as offenses defined in the Pakistan Penal Code are internationally adopted crimes and dealt with the ordinary courts. It is a recognized fact that special laws for common offenses could not prevent offenses covered under such laws to quote the size and menace of corruption could not be checked by introducing NAB ordinance, Terrorist activities multiplied in geometrical progressions even after introducing special law for such activities.

Such a situation certainly requires reviewing inconsistency in the provision of special laws with ordinary laws. Remission associated to good conduct and reformation including those allowed on different National and Islamic festival attracts the convicts towards such acts including religious association towards Islamic way of living and patriotism even to destructive minds categorized dangerous.

Section 21-F of Anti Terrorism Act reads: “Notwithstanding” any thing to the contrary continued in any other law and the Pakistan prison rules, for the time being in force an accused convicted under this Act other than a child shall not be entitled to any remission in his sentence. Unless granted by the government, “The section is also derogation of the fundamental Rights ensured in chapter 8 of the constitution of Islamic Republic of Pakistan which reads: – Article 8 laws inconsistent with in derogation of fundamental rights to be void. (1) Any law or any custom or usage having the force of law in so far as it is inconsistent with the rights conferred by this chapter, shall to be extent of such inconsistency be void. (2) The state shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall to the extent of such contravention be void. The underlying principle laid down under article 8 is that no law will be accepted as a good law which is violation of fundamental rights of citizen of Pakistan.

And if ever such law is made the courts are fully competent to declare such law void. Provision of article 8 is a great guarantee for the protection of the fundamental rights.

Therefore, if the instructions of statutory instruments qualify as law if challenged then they is liable to be struck down under article 8 if found discriminatory and which takes the action under such laws is immaterial. These are Supreme Court’s remarks (PLD – 1990 SC.95)

The constitution of Islamic Republic of Pakistan ensures equal rights to each citizen under the provisions of article 25 of the constitution. 25: Equality of citizens: (1) all citizens are equal before law and are entitled to equal protection. The supreme court of Pakistan remarked in 2001, PLC – 57; expression as envisaged in article 25 of the constitution mean that no person of law which is enjoyed by persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuit of happiness. Person similar circumstances are to be treated in the same manner.

Although class legislation has been forbidden it permits reasonable classification for the purpose of legislation.

Permissible classification is allowed provided that the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group and such classification and differentia must be on rational relation to the object sort t o be achieved by the act.

There should be a nexus between the classification and the object of the act. This principle symbolizes that persons or things similarly situated cannot be distinguished on discriminated while making on applying the law.

It has to be applied equally to persons situated similarly and in the same situation. Any law make or action taken in violation of these principles is liable to be struck down. If the law and any statutory authority or functionary it to administer in discriminatory manner such law will violate equality clause. Thus, the substantive and procedural law and action taken under it can be challenged as violation of article 8 and 25 of the constitution.

There must be no discrimination between elite and a common man Islam clearly insists and demands that all official of the Islamic State whether it be that dead on an ordinary employee are equal in the eyes of law.

In 2006, Sindh high court struck down section 10(d) of the NAB, ordinance 1999 declaring the same ultra versa the constitution. As the remissions of NAB courts were withheld under 10(d) section which contained discriminatory provisions it had been declared in consistent and in violation of article 8 & 25 of the constitution of Islamic Republic of Pakistan.

There should be one set of rulers only for every convict under any law. The forum of trial and the procedure may be different and the punishments under the same laws may be more stringent, as compare to the other enactments but after convictions the convict should be governed equally. The effects of section 21 F of Anti Terrorism Act, is that it and the ATA convicts in disadvantages position. The persons convicted by other courts under other substantive laws, awarded same punishments shall be entitled to release, much earlier than the ATA convicts.

Denial of remission to the ATA convicts while allowing the same to persons convicted by other courts for similar offenses is discriminatory in nature and merely on account of forum of trail it is not a reasonable classification with the result that the provision continued in section 21 F of the Anti Terrorism Act is repugnant to and violation of the fundamental rights of equal protection of law guaranteed under article 25 of the constitution and consequently should be declared void as provided under article 8 of the constitution. Islam and constitution of the state provides protection against discrimination legislation being repugnant to Islamic Ideology. The question is a convict of the Anti Terrorism Act, 1997 seizes to be a citizen of Pakistan and loses his right to be treated as a Muslim immediately after his conviction. It can be implicitly held that such a convict also loses his rights to rejoice the national and Islamic festival and any grant as to remissions in sentence from the president federal or provincial government on equality basis.

The intention for restricting remissions seems to deny rehabilitation of the convicts and totally ignoring the ones who have otherwise been prey to circumstances rather beyond their control and authority. The government is supposed to take this issue seriously and the inhuman un-Islamic and cruel provision of section 21 F of Anti Terrorism Act 1997 which restricting the prisoners from remission in their sentence may be reproved and declared void. The prisoners convicted under the ATA with good conduct fulfilling required parameters may also be allowed parole without discrimination following the judicial policy 2009-10.

The ground realistic know if the government would not pay attention to this matter could lead to deprivation and enhancement of the sense of despondency among prisoners keeping in jails was intended to rehabilitee the convicts but life long periods in prisons make prisons psychological patients, and cause physical and mental illness.

Thus it needs to be dealt with as early as possible. Please stop picks and choose policies and come to the consistency. It spies like Sarbjeet Singh and others are even considered to be set freed under whatsoever conditions why the remissions are denied to common prisoners because just booked under ATA?!

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Posted on February 24, 2013, in Uncategorized. Bookmark the permalink. Leave a comment.

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