Punishment and State's Criminal Law

PUNISHMENT AND STATE'S CRIMINAL LAW PUNISHMENT AND STATE'S CRIMINAL LAW By Moeen Ahmed, Advocate, High Court, Lahore Since early ages subject of punishment remained under discussion and debate. In old ages i.e. in Christianity and Judaism something wrong which was done by someone is called sin and punishment was provided for every sin and wrongdoing. But with the passage of time and through developing of legal systems it became under political sphere from religious sphere, as now politician (representatives) choosen by the people legislate laws and punishment for violation thereof. Whatever it is whether political act or something else, reason behind punishment is to restrain wrongdoers from committing wrongs and further deterring likeminded peoples from committing such wrongs. Simultaneously question arises that how can punishment be awarded, what would be the degree/ quantum of its severity, what will be the mode of different kinds of punishment etc. Only concern in this paper is to discuss as to what is the nature of punishment and how it does relate to State's criminal law. Concept of Punishment and Criminal Law Punishment is the consequence which, a sane, a person of prudent mind and a person capable of choice and having capacity to breach the rules and; in pursuance thereof, done so. If a person is suffering from insanity, he cannot be punished in the way, which is for sane and prudent mind person, because before awarding any punishment there are certain things to be proved by the prosecution i.e. premeditation, malice aforethought, mala fide, enmity etc. and these factors are definitely absent in case of insane person as he has no such choices. Punishment is awarded to regulate the conduct of society overall. Law has emerged into our lives completely, which regulates since our birth to death, similarly laws regulates the conduct of society and state which needs to be followed and whosoever violates the law shall be punished under the State's Criminal Law. So in this sense wrong doing is violation of law and more than merely wrong. Whenever punishment is awarded, it has its objects and consequences and it should be the basic reason behind the punishment. There are two basic theories of punishment i.e. Utilitarian and Retributive theory of punishment. Punishment and theory of punishment are always remained under attack by prominent scholars and intellectuals in different ages, like Jeremy Bentham and Salmond are supporters of reformative theory of punishment while Immanuel Kant and Hegel are supporters of retributive theory of punishment. One thing common between all the jurists is the imposition of punishment. Only the dispute is regarding the modes and ways of punishment. Let us discuss justification for imposition of these different theories of punishment. Some part of civil law also provides penal actions against wrongs, but in progressed legal system specific wrong violating specific provided law is called as State's Criminal Law, which elaborate most of the known crimes and their consequences in the shape of severe punishment in order to threat and deter the wrong doer. If a wrong committed, of which no punishment has been provided in the country that would not be a crime in term of violation of State's Criminal Law and in this way punishment relates only with State's Criminal Law. Whatever the modes, definitions and theories of punishment, the basic purpose of every society is to keep peace and maintain order in the community and refrain the people from violation of laws. Basically there are only two theories of punishment i.e. Utilitarian theory and Retributive theory. These are further classified in different forms like Reformative theory, Deterrence theory, Rehabilitation theory, Incapacitation theory, Restoration theory and Regulation theory etc. Retributive Theory of Punishment In English common law Retributive theory of punishment based upon old roman law i.e. lex talionis. It concentrates on the criminal and crime and awards punishment, just for the commission of crime and nothing more than that. It is based upon the principle that the criminal has to pay through punishment, for crime he committed and; that criminal as well as likeminded people will refrain from future transgression. Retributive theory of punishment looks back into the past (act done for which he is to be awarded punishment) just to punish the criminal for their crimes. Retributionist promotes the view that the criminal has to repay with the quantum of punishment weighing that of the crime just to keep balance of pain and relief between wrong doer and victim of that wrong. Punishment needs no justification for its imposition; the basic purpose of punishment is to enunciate all the criminal intention people to refrain from that very act and not to get good consequences from that mode of punishment. Retributive theory based upon human instinct, and everyone wants that whatever had been done with him has to be done with the criminal. If a state is to be dissolved and members are dispersed after its dissolution and no one will be under sovereignty of that State even then it should execute each of its murderer. It is much better retributively one offender/criminal should die than that whole of community left to be perished due to living of that offender. Criminals extracts benefits through violation of criminal laws and they should have to repay to those who are abiding citizens and Retribution at one point of discussion deals the criminals with dignity and provide them expiation for their crime and justification for re-entry in the society. Even otherwise it is better to die once retributively than to live miserably in the prison for long imprisonment. But due to severity of punishment and no specific determination of degree and severity of punishment against any specific crime, this theory was attack in every age till to date. Apart from support of retribution theories, there are also negation and criticism against this theory. Many jurists analysis the retributive punishment as barbaric and brutal one, justifying that there would be no difference between criminal and punisher and in this way it's pure theory of vengeance. Even otherwise retributive theory cannot satisfy all kinds of crimes e.g. if a criminal committed rape then what will be the retributive punishment for such criminal? If answer is what's happening in Federally Administered Tribal Areas (FATA) in Pakistan, then nothing immoral than this act that, community punished retributively a criminal by fornication and committing rape in that very way with his sister in that way. Similarly if a thief committed larceny and he is punished with that he also has to suffer with larceny then it would be law of Jungle and it will be impossible to keep peace in society. Utilitarian Theory of Punishment Utilitarian or reformative theory of punishment is another justification of punishment which looks forward on thinking that whatever is done by a criminal, must not be done by him as well as any other person of the community by reforming him and not by killing or suffering him. Utilitarian theory of punishment emphasis mostly on objects of punishment. Punishment has to be objective based upon restraining further transgression in an ethical and moral ways instead of brutal and barbaric way. Punishment is not worthwhile to take good consequences but where it is necessary to take certain steps to punish then it must be reformative and; State's law should pave the way for society least desire for crime and object must be, firstly prevention of crime, secondly legislate that if someone has to commit a crime under circumstances then object must be prevention of worst crime, thirdly on the other hand in the same time object must be to keep down the mischief and reform the criminal in the way that he would do little mischief as is consistent with the benefit he has in view and fourthly and lastly prevention of mischief must be at least expense. The basic purpose of punishment is to deter the wrongdoer and announce and warn public regarding consequences of that act and reform that criminal in a way that he may be converted into a law abiding citizen and this can only be done through reformative theory of punishment as whence you kill the criminal then no further arguments or discussion regarding future commission of that offence by that offender and; in this way reformative theory looks forward that whatever had been done should not be done in the future by that criminal and that criminal may be helpful in making a chain of good behavior. Like retributive theory there is also criticism upon reformative theory of punishment, as there is no parameter to determine the mental capacity of a criminal, who is under reformation process, which shows that he mended his ways and repentant on his criminal act, and possibilities are there that criminal is reformed and in future while getting another chance to commit crime he will not avail that chance, and if he avails that another chance then society will be at stake and be ready to sacrifice on the pretention of reformation of criminals. Reformative Theory of Punishment Reformative theory works upon failure and success of mode of that punishment but provide no solution regarding the resentment of society against that criminal due to his that very criminal act. If a person murders someone and against such murder there is a great anger in whole country or, at least, in the society but on the other hand State is implementing reformative theory of punishment, then no one can stop State's Criminal Law to convert into People's Lynch Laws and which is much dangerous than retributive punishment. Similarly retributive theory is impartial and based on the principle "As you sow, so shall you reap" and deal with the criminal and victim equally, while reformative theory is partial and speaks in the interest of criminal through process of reformation and left the victim un-redressed which is against the norms of justice. Reformation can be the weapon for criminal minded people who knows that they never be punished in the way, they committed the crime, and this thinking provoked them for commission of that crime. In Hungary capital punishment has been abolished and Gypsy Community (very brutal and criminal minded) fully take advantage of this abolition. Only relaxation towards these criminals is that full punishment of murder is only fourteen years and after that one more murder. Due to this brutal and inhuman behavior of gypsys, they are not fit even to live among normal humans and if it is impossible to throw them out from society then retributive punishment is fittest punishment for them. Reformist looks towards the rehabilitation of the criminal on the thinking that the criminal not born as a criminal but there are some factors which makes him a criminal and with the increasing psychological and moral education, this theory is prevailing which suggests that by diminishing causes of crimes, crime can be controlled. And with some limitations every country has its own laws regarding the rehabilitation of criminals e.g. laws relating to parole and probation and provisions regarding their training in Jail/ imprisonment. Since 1970s a theory of just desert is developing having its birth from theory of rehabilitation and reformation. Including Pakistan, there are many countries where Prison System is pathetic and Jail is used to detain someone whether criminal or not till the conclusion of trial. There is also delay in prosecution of trials and till the decision of case, if the prisoner was an innocent person but falsely implicated due to whatever reasons, after detention/ imprisonment of long period, he may be a converted into a hardened criminal which cannot be reformed by any means. Deterrent Theory Deterrent theory of punishment works in both basic theories of punishment i.e. retributive and utilitarian theories. This theory is not the theory in itself but defines as characterizes of basic theories of punishments. Most basic objects of deterrent theory are to adopt such ways of punishment that the criminal as well as community will deter to commit that crime. In this way incapacitation is very helpful to control and punish the criminals. Incapacitation also falls within the domain of both basic theories of punishments. Incapacitation may be of two kinds first of all as per utilitarian theory, criminal may be put to prison for such period according to heinousness of crime and secondly such imprisonment or incapacitation must be unpleasant and not pleasant, that any other likeminded criminal must be aware of the consequences for commission of that act. Similarly retributive theory of punishment also deals with deterrence theory but it solely deals with the certain crimes and their consequences and also for others and not for the criminals e.g. in case of murder there is capital punishment in shape of death penalty, though it would be incapacitation and he would not be guilty of commission of that crime but this is lesson for other persons having such like intentions. Besides all above discussion, retributive theory of punishment, reformative theory of punishment and deterrent as well as incapacitation theory of punishment already provided fourteen centuries before i.e. through Divine revelation in Islamic Religion. As regarding retributive theory there are clear orders in Holy Book Qur'an elaborating the principle of "Any eye for an eye" Nutshell It may be concluded that this is not the end of the discussion on the topic of punishment, because with the passage of time, with the changeling circumstances and development in the moral and ethical values of society, punishment and its theories may evolve from time to time. Till date there is no hard and fast rule of punishment which may be prevalent or can be said to authentic and possible to apply in every age and every country, yet there are different theories being implemented in different countries. In Pakistan, India, Saudi Arabia, Iran, China etc. there is still application of retributive punishment along with reformative and utilitarian theory. Pakistan has mixed theory of punishment and having Qisas (based upon retributive theory of eye for an eye) and Diyat (compensation against injury, based upon utilitarian/ reformative theory), Probation etc. It is also held by the Superior Courts of Pakistan as: "Philosophy of punishment is based on the concept of retribution, which may be either through method of deterrence or reformation-- purpose of deterrent punishment is not only to maintain balance with gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society." The basic purpose of all above discussion is to threshold the basic purpose, reasons and modes of punishment which regulates the society's conduct. It is immaterial as to what kind of theory of punishment (whether retributive, utilitarian, deterrent or reformative) exists in State's criminal law; implementation of such punishments is very much material and important to keep peace and maintain order in society.