A corrupt and dysfunctional prison system has contributed to – and is a manifestation of – the breakdown of the rule of law in Pakistan. Heavily overpopulated, understaffed and poorly managed, the prisons have become a fertile breeding ground for criminality and militancy, with prisoners more likely to return to crime than to abandon it. The system must be examined in the context of a deteriorating criminal justice sector that fails to prevent or prosecute crime, and protects the powerful while victimising the underprivileged. Yet, while domestic and international actors alike are devoting more resources to improve policing and prosecution, prisons continue to be largely neglected. The Pakistan Peoples Party (PPP)-led government at the centre and the four provincial governments, as well as the country’s international partners, should make penal reform a central component of a criminal justice reform agenda.

Pakistan lacks a systematic program for the capacity building of prison staff, while existing regulations on postings, transfers and promotions are frequently breached because of nepotism and political interference. Given weak accountability mechanisms for warders and prison superintendents, torture and other brutal treatment are rampant and rarely checked. Moreover, with out-dated laws and procedures, bad practices and poor oversight, the criminal justice system is characterised by long detentions without trial. As a result, prisons remain massively overcrowded, with nearly 33,000 more prisoners than the authorised capacity. The large majority of the total prison population – around 50,000 out of 78,000 – are remand prisoners awaiting or on trial. With more than two dozen capital offences, including many discriminatory provisions that carry a mandatory death penalty, the death-row population is the largest in the world, though the current government has placed an informal moratorium on executions.

Circumventing the justice system, the military has detained thousands of people, ostensibly suspected of terrorism but including thousands of political dissidents and others opposed to the military’s policies, especially in Balochistan, Khyber Pakhtunkhwa (KPK) and the Federally Administered Tribal Areas (FATA). Its methods include torture, collective justice and extrajudicial killings. By swelling public resentment, such practices are more likely to create terrorists than counter them. Instead of establishing parallel, unaccountable and illegal structures, countering militancy requires the reform of a dysfunctional criminal justice system. The separation of low-level offenders and suspects, particularly impressionable youth, from the criminal hardcore is particularly urgent.

In violation of the Juvenile Justice System Ordinance (JJSO), children continue to be arrested for petty offences and illegally detained for days and even months; in the absence of adequate facilities, their exposure to hardened criminals, including jihadis, makes them more likely to embrace crime, including militancy, after they are released than before they were imprisoned.

Yet, with jails overflowing, it is nearly impossible to isolate hardened criminals, including militants, from remand prisoners, juveniles and low-level or first-time offenders. Provincial governments are trying to reduce overcrowding by constructing more prisons and barracks. This strategy is not sustainable. The problem is not simply one of inadequate infrastructure. The prison population will continue to increase so long as bail rights are rarely granted, and accused persons are seldom brought to court on their trial dates. Recent legislation under the current government that makes it easier to obtain bail is a step in the right direction, but only if consistently applied by the courts.

There is, however, an acute shortage of probation and parole officers and no systematic programs to rehabilitate released prisoners. In addition to improving police and judicial functioning, the national and provincial governments should invest in establishing an effective probation regime; creating alternatives to imprisonment for petty crimes, such as fines, community service, community confinement and mental health and drug treatment; and providing free legal aid to those who cannot afford it, including by fully resourcing public defenders’ offices. Strong action should also be taken against police and prison officials for often failing to get prisoners to court on their trial dates, or often only doing so after bribes have been paid.

Like the police and courts, the prison system is a major contact point between citizen and state, reflecting the public’s access to justice. Major reforms are necessary to restore public confidence in the government’s ability to enforce the rule of law while protecting the rights of all citizens. Having ratified the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in June 2010, the government should allocate the necessary human and financial resources and meet its obligations under these international treaties, so as to ensure that torture and other ill-treatment of detainees are stopped and that officials and institutions responsible for such practises are held accountable. If Pakistan’s prison system remains brutal, opaque and unaccountable, it will continue to aggravate rather than help resolve the country’s major internal security challenges.

Islamabad/Brussels, 12 October 2011