Life Imprisonment: A Way Forward
Liberty is the lifeline of every human being. Life without liberty is ‘lasting’ but not ‘living’. Freedom of all kinds is considered as one of the most precious and cherished possessions of a human. Therefore, any attempt to deprive a human being of his or her liberties is faced with resistance.
Advocates for human rights argue that imprisonment, even if for a limited or indeterminate period, takes away the freedom of an individual. This approach is rebutted with an equally important argument that incarceration, for life or otherwise, potentially serves more sentencing aims than just deterrence, including incapacitation, rehabilitation and retribution. All these ends are capable of being furthered in different degrees, by calibrating one punishment in light of the overarching penal policies. In order to serve justice, where on one end of the spectrum is the liberty argument and on the other hand is deterrence which is important to prevent crime and maintain social peace, courts are faced with multiple issues while deciding and interpreting the sentence of life imprisonment.
The honourable Supreme Court of Pakistan in Haroon Rashid alias Shahid vs. The State (Miscellaneous Application no. 843 of 2019 in Criminal Appeal no. 293 of 2001) raised questions of immense public importance. One of them was whether a sentence of life imprisonment passed against the accused meant imprisonment for the remaining biological life of a convict or any period shorter than that.
The jurisprudence developed in this area of law raises many questions which remain unanswered and a lot still remains to be known about the punishment of “life imprisonment”. Considering its popularity in the criminal justice system, it is imperative that we closely examine it. This article is not the last word on life imprisonment but an attempt to begin the conversation about the persistently problematic nature of this punishment and suggest possible reforms to remove ambiguities.
The following remarks by Lord Mustill in relation to an English case hold true in most countries that retain life imprisonment:
“[T]he words which the judge is required to pronounce do not mean what they say. Whilst in a very small minority of cases the prisoner is in the event confined for the rest of his natural life, this is not the usual or intended effect of a sentence of life imprisonment…. But although everyone knows what the words do not mean, nobody knows what they do mean, since the duration of the prisoner’s detention depends on a series of recommendations … and executive decisions…”[1]
(Remissions etc.)
While exploring life imprisonment, it must be borne in mind that the term is used to cover different realities. Life imprisonment can be mandatory or discretionary. It can be with or without the possibility of parole/remissions/early release. Other measures such as the indeterminate internment of people, for reasons pertaining to their mental conditions or them being a danger to themselves or others, could also technically be considered ‘life imprisonment’. Each penal system has its own nuances and every discussion of life imprisonment has to take into account and distinguish carefully all these different realities.
Despite its seeming popularity, “imprisonment for life” is a relatively new entrant amongst punishments prescribed under the Pakistan Penal Code (PPC) 1860. Its introduction, through an amendment in 1972 under the Law Reforms Ordinance 1972 replaced the punishment of transportation. The sentence was defined in section 57 of the PPC to mean a sentence of 25 years of imprisonment as against 20 years of imprisonment in the case of a sentence for transportation of life. Life imprisonment has been reserved for grave offences, for some of which the only prescribed penal alternative is the death penalty.
Justice Anwarul Haq in paragraph 13 of the Muhammad Hussain case [PLD 1968 Lah 1] explained the historic rationale behind the meaning and duration of the sentence, as also observed by the authors of the Indian Penal Code:
“…the separation resembles that which takes place at the moment of death. The criminal is taken for ever from the society of all who are acquainted with him and conveyed by means of which the Natives have but an indistinct notion over an element which they regard with extreme awe, to a distant country of which they know nothing, and from which he is never to return. It is natural that this fate should impress them with a deep feeling of terror. It is on this feeling that the efficacy of the punishment depends, and this feeling would greatly weakened if transported convicts should frequently return, after an exile of seven or fourteen years, to the scene of their offences, and to the society of their former friends.”
From this observation it would appear that the sentence of transportation was to be applicable for the remainder of the life of the convict.
The word life imprisonment has not been defined under any laws in Pakistan, though the word ‘life’ and ‘imprisonment’ have been explained separately. Section 45 of the Pakistan Penal Code 1860 defines ‘life’ as:
“…the life of the human being unless a contrary intention appears from the context…”
Section 3(26) of the General Clauses Act, 1897 states that “imprisonment” shall mean:
“…imprisonment of either description as defined in the Pakistan Penal Code 1860…”
The expression ‘life imprisonment’, therefore, must be read in the context of section 45, PPC. Read so, it would simply mean imprisonment for the full or complete span of life.
However, a misconception still exists as to whether life imprisonment is for 15 years or 25. At times, this misconception has been addressed by the judiciary as well. Any misreading is due to incomplete understanding of section 57 of the PPC which is to be read with a couple of other relevant provisions including the Criminal Procedure Code (CrPC) 1989 and the Pakistan Prison Rules 1978.
Problem with Interpretation
1. The first reason for misconceiving life imprisonment stems from an isolated reading of section 57, PPC 1860, which declares that, “…[i]n calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty-five years.” By a plain reading of the text, one can deduce that section 57 of the PPC simply relates to calculating the fractions of terms of punishment by equating a number of 25 years with life imprisonment. Section 57 of the PPC generally has no real bearing on the meaning of life imprisonment; it is only concerned with the calculation of fractions as mentioned above. The language of the section provides that life imprisonment is reckoned to be equivalent to 25 years and not “deemed” as 25 years. By no stretch of the imagination can one draw an all-embracing function from this provision.
2. The second reason is the reconciliation of the meaning of life imprisonment under section 57 of PPC and section 2 of the Hudood Ordinance 1979. While the former calculates it as 25 years, the latter prescribes it for the remaining life of the convict. A similar view had been taken in Muhammad Riaz v The State [2017 PCrLJ Pesh 582]. Although the case was remanded for retrial on the grounds of Articles 9, 10 and 10A of the Constitution, the Peshawar High Court was of the view that it was an admitted principle of law that imprisonment for life meant 25 years as envisaged under s.57 of the PPC , that a sentence awarded to the appellant for a period longer than that duration was against the mandatory provisions of law, and that no person should have been sentenced to imprisonment till death except in cases where an accused had been convicted under the Offences Against Property (Enforcement of Hudood) Ordinance 1979 wherein s.2(e) prescribed that imprisonment for life meant imprisonment till death, but an accused person sentenced under the PPC 1860 to imprisonment for life should not have been kept in jail till death.
3. The third reason for problems in interpreting life imprisonment is the interplay of life imprisonment with the law of remissions under section 401 of CrPC. The concerned governments have the power to remit the life sentence of a convict after the convict has served a minimum of 15 years in jail. This minimum period of 15 years of imprisonment and release is not a rule but an exception. In other words, a convict cannot claim release after 15 years as a matter of right. It is one thing to say that the case may be considered for premature release after 15 years and quite another thing to say that the convict has a right to be released after 15 years.
If the government wishes to confer upon the convict the benefits of remission, the case may be processed and the convict may be released after 15 years or after a definite period of imprisonment, for example 25 years. The government is, however, not under an obligation to exercise such powers. In fact, the exercise of this power depends, to a great extent, on the crimes committed and chances of rehabilitation. This proposition makes it clear that life imprisonment is imprisonment for the reminder of life. Thus, imprisonment for life is not confined to 15 years of imprisonment.
A disadvantage of this exercise of discretion is that the executive may indiscriminately remit the sentences. This exercise may render futile the judicial sentencing whereby the judiciary has sentenced a person to life imprisonment, instead of death, under the sincere impression that such a person would serve life in jail.
Possible Solution
A general shift has been observed in the trends of sentencing for life imprisonment where judges have started putting judicial breaks over the exercise of remission powers by the executive by prescribing the length of life imprisonment, for example to 20/21/25/30/35 years, before which no remission shall be granted. This approach is in line with the age old “sentencing without parole” concept seen in American and English sentencing where judges retain this authority.
A similar approach has recently been endorsed by the Indian judiciary[2] and legislative amendments passed in 2013 and 2018[3]. It is time for the Pakistani judiciary to also bring coherence in the interpretation of sentencing laws when it comes to life imprisonment and remove the ambiguities surrounding the interpretation of s.57 of PPC.
Conclusion
It is unfortunate that not much jurisprudence has developed in this area in Pakistan because when it comes to the meaning of life imprisonment, courts place heavy reliance on the term “fractions of punishment” envisaged in section 57 of PPC and equate it with 25 years of rigorous imprisonment. It is essential that reforms be introduced in the interpretation of life imprisonment so that we have clarity with regard to its meaning. This problem is yet to be addressed by the Pakistani judiciary and we patiently await the verdict of the Supreme Court in the matter.
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References
[1] R v. Secretary of State for the Home Department, ex parte Doody, [19941 1 A.C. 531, 549-50 (H.L.).
[2] SWAMY SHRADHANANDA v THE STATE OF KARNATAKA [AIR 2008 (8) SC 767 and approved by UNION OF INDIA VS. SRIHARAN [AIR (2016) 7 SCC 1]
[3] Criminal Law Amendment Acts of 2013 and 2018.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.
