Law Without Order or Limit
An old QLCian; University Gold Medalist and record holder in LL.B; Currently working as full time Faculty Member at QLC, Lahore.
We boast that ours is a government of law, not of men. We do not mean by the quoted principle that man makes no difference in the administrative setup of law. Among the basic things we do mean is that all of us, governors and governed alike, are of ought to be bound by laws of general and equal application. We mean, for, that in a just legal order, the laws should be knowable and intelligible so that, to the fullest extent possible, a person meaning to obey the law may know his obligations and predict within decent limits the legal consequences of his conduct.
The broad principle applies with special point to the criminal law, where one of the expressions is in the hoary solemnity of an ancient Latin maxim Nullem crimen, nulla poena, sine lega -- meaning thereby that there is no crime and punishment, except as a law prescribes it. Again, the premise embodies the idea of a law reasonably precise and specific. To this end the written laws came into being, marking the boundaries of conduct for which public agents could thereafter impose punishment upon people. In contrast, bad governments either written no laws in unknown tongue so that people could not understand them or else placed at such inaccessible spots that people could not read them.
It is worth remembering that through much of recorded history, men have lived under the tyranny of laws scarcely less arbitrary and unpredictable than any imaginary provision for the unfettered will of supreme potentate. And before the reference to history leads to an excess of contemporary smugness, let me hasten to the present point of this paper: that the Latin principle above mentioned is largely ignored by the penalty provisions of our criminal laws.
Our system does tolerably well in following part of the Latin maxim----the part that says”nullum crimen” (no crime except under law). With some exceptions, we follow the
precept that conduct may not be branded criminal unless it has been prescribed by a reasonably intelligible law in advance of its occurrence. We have to admit the fact that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must quers at its meanings and differ as to its applications, violates the first essential of due process of law. But while same standards are generally implemented with respect to laws, definitions of crimes, it is generally ignored in the position of the same laws prescribing the range of permissible punishments. As to the penalty that maybe imposed, our laws characteristically leave to the sentencing judge a range of choice unthinkable “government of laws not men”
To underscore it by repetition, my first basic point is this: the almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentencing are terrifying and intolerable for a society that largely professes devotion to the rule of law. The broad statutory ranges might approach a degree of ordered rationality if there were prescribed
any standards for locating a particular case within any range . But neither any federal law nor that of any province I know contains meaningful criteria for this purpose. Our parliament and the provincial assemblies have failed even to study and resolve the most basic of the questions affecting penalities, the questions of justification and purpose.
I make the point that our legislators have not done the most rudimentary job of enacting meaningful sentencing laws. It may be supposed by many that the broad discretion of the sentencing judge is actually limited by the discipline of the profession, including a body of criteria for placing a given case within the statutory range of up to “not more than” life
in prison. The supposition would, unfortunately, be without substantial basis. There is no agreement at all among the sentences as to what their event criteria are or what their relative importance may be.
The sentencing powers of the judges are, in short, so far unconfined that expect for frequently monstrous maximum limits, they are effectively subject to no law at all. Everyone with least training in law would be prompt to denounce a statute that merely said the penalty for crimes “shall be any term The Judge sees fit to impose”.
Failure to impose meaningful limits upon the Judges, our criminal codes have displayed bizarre qualifications of illogic and incongruity.
Both qualities the crazy-guilt statutory patterns and the blank check powers of Judges reflect a number of important, if not uniformity pleasant, things about our society.
Winston Churchill once said “The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civil situation of any county”.
Many of our criminal sentencing is enacted in an access of righteous indignation, with legislators fervidly out-shouting each other, with little thought or alteration given to the large numbers of years inserted as maximum penalties. The more profound problem of excessive judicial power reflects a congeries of causes, advertent and accidental. To look only at the most important at the most important and positive of these, the prevalent thesis of the last hundred years or so has been that treatment of criminals must be “individualized.”
Yet it is high time to question and confine them like all good ideas allowed to bloom without pruning of other attention, the nation of individualized sentencing has gotten quite out of hand. Reverting to elementary principles for a bit, we ought to recall that individualized justice is prima facie at war with such concepts, at least as fundamental as equality, objectivity and consistency of law
In most matters of civil law, while our success is variable, the quest is steadily for certainty, predictability and objectivity. The businessman wants to know what the tax will be on the deal, what the possible “exposure” may be from one risk or another. His lawyer
may predict more or less successfully. But no businessman wants (If he is honest), a
system of individualized taxes and exposures, depending upon who the judge or other official may turn out to be and how that decision-maker may access the case and the individual before him.
This does not mean, of course, that every body pays the same tax or is held to be the same standards of liability. It does mean that the variations are made to turn upon objective, and objectively ascertainable, criteria-impersonal in the sense of the maxim that the law is no respecter of the person ---and above all, not left for determination in the wide open, uncharted, standard-less discretion of the judge administering individualized justice. The law's detachment is thought to be one of our trumps. There is dignity and security in the assurance that each of us- plain or beautiful, rich or poor, black or white, tall, curly, whatever--- is promised treatment as a bland, fungile ”equal” before the law.
Is individualized sentencing consistent with that promise? Certainly not under the broad grant of subjective discretion we give to our judges under most Pakistan criminal laws today. The idea of individualized Justice is by no means an unmitigated evil, but it must reject individual discretion and should be according to law. This means we must reject individual distinctions ---- discriminations, that is --- unless they can be justified by relevant tests capable of formulation and application with sufficient objectivity to ensure that the results would be more than its idiosyncratic ukases of particular officials, judges or others.
I think an approach to such a standard is possible. Having said that, let me free from the appearances of undue complacency about the judges. The judges simply are not good enough-----nobody could be------to redress the fundamental absurdities of the system.