THE current approach in the country of incarcerating individuals for minor offen­ces leads to a cascade of negative effects. This includes overcrowded prisons and the cycle of recidivism, where individuals bec­o­­me trapped in the criminal justice system.

In each province, the number of under-trial prisoners exceeds the number of convicted inmates. Prisons across Pakistan have an overcrowding rate of 152.2 per cent, with some jails operating over 200pc of their capacity. As of 2023, Pakistan holds 100,366 prisoners in its 127 jails, according to data released by Justice Project Pakistan.

This highlights the shortcomings in Pakistan’s probation and parole systems, excessive dependence on imprisonment, and the urgent need to reform laws and policies regarding incarceration.

The solution to reducing crime does not lie in building more prisons to imprison more people, but rather in reforming offenders so that they can reintegrate as productive members of society.

Probation and parole can play a vital role in rehabilitation.

Exposure to the jail environment increases the likelihood of future criminal behaviour (recidivism). It disproportionately affects first-time offenders, as it leads to loss of income, which disrupts families and communities.

At the societal level, it imposes costs on taxpayers for housing and caring for individuals who may not pose a significant threat to public safety. It also contributes towards an overburdened criminal justice system. This can strain law-enforcement resources and congest court dockets, which diverts attention from more serious crimes.

Probation and parole serve the purpose of community rehabilitation and reintegration of offenders. Therefore, as an alternative to imprisonment, the probation and parole system can play a vital role in community rehabilitation of offenders, ending the cycle of recidivism and reducing the prison population.

The primary distinctions between these two non-custodial sanctions lie in their administration: probation is judicially granted, whereas parole is authorised by the executive. Additionally, probation involves the suspension of a sentence along with community service (such as roadside clean-up), whereas parole is usually granted towards the end of a prisoner’s mandatory imprisonment period, based on the good conduct of the prisoner.

The UN Standard Minimum Rules for Non-custodial Measures (Tokyo Rules) were formulated to provide a set of basic principles to promote the use of non-custodial measures. Rule 1.5 of the Tokyo Rules encourage states to “develop non-custodial measures … taking into account the observance of human rights, the requirements of social justice and the rehabilitation needs of the offender”.

After Pakistan’s independence in 1947, probation and parole are governed by the Probation of Offender Ordinance, 1960, the Good Conduct Prisoners Probational Relea­­se Act, 1926, and the Good Conduct Priso­n­ers’ Probational Rules, 1927. Unfortunately, these laws are based on colonial-era practice and a retributive model, lacking adequate rehabilitative mechanisms.

Punjab and KP reformed the laws related to probation and parole through the Punjab Probation and Parole Services Act, 2019, and the KP Probation and Parole Act, 2021, respectively. These laws shift towards rehabilitative and restorative justice. In Sindh, the Good Conduct Prisoners Probational Release Act, 1926, is still applicable. How­ever, the Home Department has proposed reforms in the shape of the Sindh Good Conduct Prisoners Probational Rules, 2024. Under Rule 6, a ‘Parole Committee’ has been proposed which includes the Sindh Human Rights Commission, an independent sub-national human rights ins-titution with the mandate to monitor human rights violations. This is a step in the right direction.

Further, the Juvenile Justice System Act, 2018, provides the legal framework related to probation and parole of children in conflict with the law. However, only KP has formulated the rules under JJSA. The rest of the provinces and Islamabad Capital Territory must formulate the rules to protect the best interests of children in conflict with the law.

The Supreme Court in the Raja Azmat case stated that: “It is a right of every eligible prisoner to be considered for the purposes of enjoying liberty on the basis of probation.” The court directed the federal and provincial governments to ensure that laws relating to the release of a prisoner based on probation are implemented and made functional.

Therefore, the state must strengthen the Directorate of Reclamation & Probation by appointing capable probation and parole officers. Further, technology such as electronic monitoring and GPS tracking can be utilised to improve supervision, efficiency and effectiveness. Pakistan must adopt an efficient probation and parole system to end the cycle of recidivism.

The writer is a barrister of Lincoln’s Inn and an advocate of the high courts of Pakistan.

Published in Dawn, July 30th, 2024