Nelson Mandela’s Rules and Pakistan’s Criminal Justice System

18e July is the birthday of Nelson Mandela, an African leader who spent a lot of time in prison during his political struggle. Bearing his name, the United Nations Standard Minimum Rules for the Treatment of Prisoners has been referred to internationally as the Nelson Mandela Rules. On his birthday, these rules are discussed and commemorated internationally by United Nations agencies, in particular the United Nations Office on Drugs and Crime (UNODC).

This year was no different. The day was celebrated internationally and justice sector practitioners and civil society organizations as well as academics held special sessions to discuss its implementation in their countries and regions. In Pakistan, the Justice Project Pakistan (JPP) led by Ms. Sarah Belal organized various events. The JPP program examined the status of implementation of the Nelson Mandela Rules in Pakistan. In addition, various other organizations have organized events to highlight the importance of implementing these standards in Pakistan. In this context, the subject should be systematically addressed for political considerations by the leaders of the justice sector in the country; different aspects can be elucidated under the following themes:

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  1. Internationalization of criminal justice

Legal philosophers like Kelsen and Professor HLA Hart of the University of Oxford had historically raised serious ontological questions about international law, questioning the very nature of its legal content as it lacked any enforceable power and of coercion. However, this changed after new developments in international law when actors in the international arena began to recognize “individuals” as a subject of international law. Since then, there has been a steady internationalization of criminal justice through soft international law that has compelled states to conform to international standards established, agreed upon and upheld by international human rights lawyers.

In this context, a reference is the Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice published initially in 1992 and most recently in 2016 by UNODC. The Compendium is a compendium of all these standards and norms and is a basic document to refer to when finding content on the subject. The whole movement towards the internationalization of criminal justice began in 1955 when the first Congress on Crime Prevention and Criminal Justice was organised.

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The purpose of emphasizing this point is that, although in theory it is thought that each state exercises its sovereignty primarily through criminal law and criminal procedure, the leaders of an international legal order have made constant efforts to affect municipal legal orders. This effort, at the international level, can be assessed by its impact. Regarding the constitutional system of Pakistan, it can be noted that Item 32 of the Federal Legislative List of the Fourth Schedule of the Constitution of Pakistan 1973 obliges the federal government to implement international treaties and agreements.

Whether these international treaties include the soft international law emanating from the resolutions and declarations of the United Nations General Assembly is a question that requires interpretation. Similarly, as Pakistan is a federation where criminal law and criminal justice are in competing fields in light of Articles 142 and 143 of the Constitution, it remains to be seen whether prisons and correctional facilities (being provincial entities ) may be required to apply international minimum sentences standards set out in international legal instruments, which are less than a treaty in their own right.

  1. A broad definition of prison

Discourse on criminal justice reforms in Pakistan is a specialized topic due to low legal literacy and less than exemplary rule of law. In this context, the Nelson Mandela Rules provide a very useful scheme which separates the categories of prisoners. Categories can be stated here to stimulate thinking and expanded visualization of the rules to cover all categories of inmates.

The rules are divided into two parts: Part I deals with general prisoner rights and content standards that must be met when establishing a prison system; Part II deals with special categories of prisoners which include: (a) sentenced prisoners, (b) prisoners with mental/health disorders, (c) prisoners under arrest or awaiting trial (this includes persons arrested by the police and persons sent to prison on remand), (d) civilian prisoners (very few in the Pakistani justice system) and (e) persons in custody (see Article 10 of the Constitution of Pakistan which provides for a regime of detention with arrest on the criminal side and in accordance with the laws relating to the maintenance of public order in Punjab, 1960). Pakistan’s prison and police systems are governed and regulated by provincial governments, therefore, more advocacy at the provincial level is needed.

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  1. Special laws

Special laws on minors, women and transgender people must be brought up to par with the minimum standards set by the Nelson Mandela Rules. For example, in the Juvenile Justice Act 2018, rehabilitation aspects of juvenile detainees are not detailed as required by the Nelson Mandela Rules.

Special laws enacted by provincial and federal legislatures should strive to conform to these standards and link obligations to funding through budget grants to enable implementation in line with international standards that are fully consistent with humanistic, cultural and religious considerations of the Pakistani people.

Empowering communities through the rule of law

Discussions about criminal justice system reforms are already teetering on the brink as communities run out of patience and the results are unimpressive. In his book, “The End of Policing,” Alex S. Vitale spoke about the limits of policing reforms. His observation on police reforms is interesting and can be adapted for a general discourse on the transformation of Pakistan’s criminal justice system. He noted:

“Any genuine program of police reform must replace the police with empowered communities working to solve their own problems…Communities must directly confront the political, economic and social arrangements that produce the wide racial divides and growing gender gaps. haves and haves. not…”

Community empowerment, in the Pakistani context, can best be achieved by integrating the rule of law. A rules-based order with integrity arbiters can bring qualitative changes to the criminal justice system. For this, the rule of law must be the guiding principle. The criminal justice system, which is essentially provincial in orientation, must be at par in all provinces and the federation must take the lead in providing an ecology that promotes the rule of law in accordance with its obligation under the article 143 of the Constitution.

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The other branch of community empowerment surely lies in the introduction of a comprehensive local government system that interacts with the criminal justice system in a collaborative manner. For this, the constitutional imperatives of Articles 140-A of the Constitution of Pakistan have been the subject of much arbitration and debate.

Kamran Adil is currently the Deputy Inspector General of Punjab Police. He studied law at Oxford University and writes and lectures on international law. The opinions expressed in this article are those of the author and do not necessarily reflect the editorial policy of Global Village Space.