Poetic ‘sentencing’?


Masud Khabeki

The article 10-A of the Constitution of Pakistan ostensibly guarantees an accused person the right to trial by impartial judiciary. The right to fair trial is a fundamental constitutional right belonging to every citizen of Pakistan, it extends not only to criminal charges but also to civil rights and obligations. Sentencing is the outcome of  the processes of investigation, prosecution and trial, considered as the most important part of any trial. The degree of judiciary’s impartiality, however, has been questioned frequently, especially involving political personalities cases. Politicians and the prominent members of the civil society has often raised their voice and concern about sentencing discrimination in recent times.

Despite attempts to eliminate disparity in meting out sentences by guiding judiciary’s discretion through legislative mandates, the compelling conclusion is that the sentencing instructions are ignored, and it contribute to judges’ miscomprehension and we are faced with decisions having poor wording, poor construction of sentences, and significant omission regarding the law. In recent times, the construction of sentences by the courts are tilted more towards the explanation of events in academic style as ‘similes’ or ‘metaphors’ are used to hint specific intention. Thus, one can feel these sentences have become a piece of literature rather a pure lawful verdict. Such explanation of decision could ignite a debate that could mislead the facts of the case. Apparently, the attempts to guide judges’ discretion in the construction of sentences has failed because we have seen that while issuing sentences many of them are willing to sacrifice comprehension in exchange for legal accuracy. There is a need to improve this area as legal fraternity itself is more concerned about the values and expectations about the criminal justice process as far as sentencing part is concerned. No doubt, they are more concerned than anyone else to overcome misperceptions about the law, crime and the criminal justice system. If due care is not taken the sentences would seem to contradict the intent of the decisions.

Certain decisions at trail court’s level have spurred a debate at regular intervals suggesting that a significant proportion of prospective judges for higher courts are incapable of consistently applying the sentencing instructions and the accused is potentially denied a fair trial, or even a chance for mercy. Furthermore, tinkering with the adjudication process by the legislative and judicial branches has potential repercussions for undermining judges’ impartiality. In a similar vein, a growing concern has been seen against the type of sentences burdened with literature or mythological references. Furthermore, the reaction of the society suggests that judges’ impartiality has been damaged due to unnecessary explanation of law by adopting poetic mannerism and they believe it is also inconsistent with legal norms and practices.

Judges’ impartiality should not be measured strictly in terms of the absence of some bias, it should be construed more broadly to reflect the ability to comprehend accurately the facts of a case and to apply the law evenhandedly as it pertains to the various aspects of the trial. Judges’ attitudes towards the death penalty serve as prime example. Several studies suggest, for example that judges have difficulty in comprehending sentencing instructions. In particular, sentencing instructions issued in death penalty cases have recently received close scrutiny. When sentencing instructions are ambiguous or confusing, judges may resort to ‘event schemes’ –that is, what they think they know about the law—during sentencing deliberations. These event schemes are based on life experiences and educational background that culminate from shared cultural knowledge, exposure to various forms of media, and many other factors that shape domain assumptions.

There is a lot of talk that prospective judges for higher courts in our country have a lot of difficulty in understanding the distinctions between the levels of proof and requirements for judge’s unanimity vis-à-vis aggravating and mitigating circumstances. Where the sentencing instructions were inadequate in explaining such differences, judges seemed to rely on schemes bases on the widely accepted notions of ‘proof beyond a reasonable doubt’ and ‘unanimous decision’. Again, poorly worded or vague and ambiguous sentencing instructions may invite precisely the arbitrary and capricious application of the penalty that have to be avoided. By failing to recognize judges’ difficulty in understanding both legal jargon and the poorly constructed and worded sentencing instructions, courts may compromise a judge’s ability to render sentencing decisions that are consistent with constitutional mandates.

Recently, a debate initiated because many believed that the instructions used in death penalty case appear to suffer from problems and limitations of comprehension of capital sentencing instructions. The sentencing instructions may be worded so ambiguously that it led people to the presumption that the death penalty is the only viable sentence. In particular, these instructions may foster the mistaken conclusion that mitigating circumstances are not present in most cases, such a conclusion directly influences the imposition of death sentence. The decision has provided us an opportunity to explore judge’s ability to comprehend sentencing instructions used in death penalty cases in Pakistan. We have to question judges’ ability to understand the difference in the levels of proof and requirements for unanimity on the existence of aggravating and mitigating circumstances. We must also question the judges’ proficiency in understanding the process of weighing mitigating against aggravating circumstances, as well as their skill in recognizing non-enumerated mitigating circumstances.

The higher courts interested in retaining the integrity of the judges in US have developed some means of bridling judges’ discretion. For instance, some states enacted mandatory capital statutes that eliminated judges’ discretion. In these States death was the only option for specific types of murder (e.g., killing a police officer). Other states elected to control judges’ discretion by imposing guidelines that were to be used in fixing the punishment. For example, in states that guided judges’ discretion the killing of police officer could be considered an aggravating circumstance, while the age of the accused could be considered a mitigating circumstance. When the judges find that a mitigating circumstance exists, the instructions require them to weigh that circumstance against the aggravating circumstance. But it still lacks any guidance on how the judges have to go about the process of weighing, even in US. According to the instructions, however, judges must be unanimous in deciding if a mitigating circumstance outweighs the aggravating circumstance. The same concern is found to be existed in our judge’s decision making. There are few questions like, when judges weigh mitigating against aggravating circumstances, do they employ a qualitative method or a quantitative method (i.e., simply adding up the two sets of circumstances and then voting on the basis of the highest frequency)? Do judges adequately understand the differences between the requirements for finding the existence of aggravating and mitigating circumstances? No doubt, if courts have to perform its functions properly, individual judges must understand the standards of proof that apply to the case.

Sentences must be without ambiguity, mockery or misleading references having only pure meanings and intentions written under the true guidance laid down in sentencing instructions portraying true spirit of law. Even the verbs and adjectives used to erect ‘sentences’ must be chosen with great care and should be directed to dispel the intention of punishment in accordance with law. Sentences are as sacred as the legislation itself these must be without any perception of personal grudge and vendetta on part of the courts, but have the ability to address the problem in future and to the benefit the society at large.


The writer is on advisory board of an Islamabad based think tank