Thursday March 30, 2023

Life sentence

October 13, 2019

Amidst considerable confusion in the public and the legal fraternity about the duration of a life sentence, CJP Asif Saeed Khan Khosa has questioned why life sentence corresponds to a maximum imprisonment of 25 years when the Pakistan Penal Code (PPC) does not specify any term of imprisonment in case of a life sentence?

The Advocate General Punjab (AGP) argued before the SC that life sentence is imprisonment for the natural life of a convict. The AGP pointed out that the misconception as to the duration of life sentence is the outcome of a misunderstanding of Section 57 of the PPC, which provides that, “In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty-five years”.

The AGP stresses that Section 57 of the PPC has no bearing on the ‘meaning of life imprisonment’ and it is only concerned with ‘calculation of fractions’. He essentially argues that life sentence is ‘reckoned as equivalent to 25 years’ and ‘not deemed as 25 years.’

The AGP stated that, although Section 401 of the Code of Criminal Procedure (CrPC) empowers the government to remit the sentence of life convict, yet a convict cannot claim remission in the sentence as a matter of right. In other words, the AGP reiterated that the government can keep life convicts in jail for the remainder of their life. I submit this argument cannot sustain in the law.

A brief reading of Section 57 of the PPC shows that life imprisonment is calculated as equivalent to 25 years. Section 55 of the PPC allows the executive to commute the life sentence to 14 years. Section 401 of the CrPC also authorizes the provincial government to remit the life sentence. As per Article 45 of the constitution, the president can grant pardon, remit, suspend or commute any sentence passed by any court, tribunal or other authority.

The principle of statutory interpretation dictate that a statute must be construed as a whole and that words that are reasonably capable of only one meaning must be given that meaning (the literal rule); that ordinary words must be given their ordinary meanings unless absurdity would result (the golden rule). The AGP’s arguments challenge these principles of interpretation. It is contended, if the PPC and the CrPC are construed as a whole and the relevant provisions of the same are given the literal or ordinary meaning, that a life sentence amounts to 14 to 25 years.

Even if it is assumed that the PPC does not specify any term of a life sentence, the question of life sentence should be referred to parliament as the judiciary can neither create a new punishment in a penal statute nor can it repeal or amend any provisions of the law – that is: provisions about remission or commutation of life sentence.

It may be noted that a similar issue regarding life sentence arose in India. The Criminal Law Amendment Acts of 2013 and 2018, made several offences in the Indian Penal Code (IPC) punishable by imprisonment for life, extending to the remainder of the convict’s natural life. In Union of India v Sriharan (2016), the Indian SC further ruled that courts could place a sentence beyond the scope of remission for a fixed period. The IPC amendments and the SC judgment seem to have made the issue of life sentence more complicated in India. This has added confusion as to the exact term of a life sentence, and so multiplied criminal litigation.

In our criminal justice system, the increased reliance on life imprisonment either by the courts or by parliament may also exacerbate the problems of the existing criminal justice system. Pakistan’s criminal justice system is ranked at 81 (out of 113) as per the World Justice Project Rule of Law Index (2017-18). In this system, witnesses may make false statements, the police may conduct a faulty investigation, prosecutors may handle the cases inefficiently, and judges may ignore the evidence. For example, in the Aasia Bibi case, she was awarded the death penalty based on a false FIR as well as concocted evidence, compelling the SC to observe that the lower courts failed to advert to contradictions and some ‘downright falsehood’ in the evidence.

Recently, the SC acquitted Wajih-ul-Hassan after he had spent 18 years in prison. The CJP noted that “There cannot be a fair trial, which is itself the primary purpose of criminal jurisprudence if the judges have not been able to elucidate the rudimentary concept of the standard of proof that prosecution must meet to obtain a conviction.” It simply means that Hassan was convicted in the absence of any solid proof.

These two cases reflect on the functioning of our criminal justice system. Are Aasia Bibi and Wajih-ul-Hassan not victims of our justice system? Can there be adequate compensation for Aasia and Hassan? If so, who should be made to pay that compensation? Should some responsibility be not fixed on those who have made a mockery of justice?

Life and liberty are the most valuable human rights that cannot be taken away at the convenience of any justice system. Therefore, while considering the question of a life sentence, the SC should consider this critical question: should life sentence be awarded for the remaining life of a convict, given the flaws of our criminal justice system?

In Pakistan, life sentence has become a complex patchwork of judicial and executive orders. Such an arbitrary and inconsistent approach has only added misery for life convicts and their families. In the absence of jurisprudential guidance by the honourable SC and clarity by the legislature, the issue of life sentence will continue to resurface. Indeed, without reforming our criminal justice system, innocent people like Aasia and Hassan will suffer.

The writer is a lawyer.