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PROTECTION AGAINST RETROSPECTIVE PUNISHMENT IS A FUNDAMENTAL RIGHT

article 12 of the constitution of pakistan
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Tariq Mahmood Awan

The term ‘retrospective’ essentially means speculating or looking into the events or incidents that have taken place in the past. When any law that was already existing is changed, altered, or some portion of it is removed, it doesn’t remain identical as it was earlier. Nevertheless, the new changes still impact the events that occurred in the past. In other words, if a person commits an act that was not considered to be an offence at that point under any legislation but becomes one after some changes in the existing laws or the introduction of a new law, the person could be held liable even for the acts committed by him in the past that are now an offence. 

This operation of a statute acts contrary to the general perception that any law is introduced to consider the crimes that might be committed in the future. When a statute operates retrospectively, however, the new law can be applied to the facts or actions carried out even before such a law had been proposed. When such a statutory provision is introduced, which aims to consider past actions, it is clearly stated that the act was said to be in operation from the given date in the past. From that date forth, all the offences would be included within the purview of the statute, and the people would be punished. These statutes are also known as ex-post facto laws.

The concept of retrospective punishment is complicated and complex. However, this raises a fundamental question. How can a person be punished for a crime done earlier when it was not a crime according to the law? Perhaps, the offender might have done it due to it not being a violation or an offence. Legislation is an organic act and a living organism. It tends to change and vary from proposition to circumstance. Therefore, it is against the spirit of justice to fix a person for an offence when it was not an offence. Thus, the constitution of Pakistan enacts it as a fundamental right not to be punished retrospectively. It protects the citizens of Pakistan against retrospective punishment.https://republicpolicy.com/explaining-article-11-of-the-constitution-abolishing-modern-slavery-is-a-fundamental-right/   

Article 12 of the Constitution of Pakistan reads as follows:

  1. No law shall authorize the punishment of a person—

(a) for an act or omission that was not punishable by law at the time of the act or omission; or

(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.

(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence.

Article 12 of the Constitution prohibits convictions and sentences in criminal jurisdiction under ex-post facto laws. It also prevents the State from subjecting any person to a punishment more significant than that prescribed by law for an offence when the offence was committed. Typically, the State acting through the legislature has the power to make law having the retrospective operation, yet an act which was not an offence when committed cannot be made punishable retrospectively.

It is the prerequisite of the system of civilized law that retrospective effect ought not to be given to penal legislation. The impact of the present Article is to confine the sphere of retrospective legislation only to non-penal laws. Any law which makes certain acts an omission, a crime or an offence punishable as such would offend against the prohibition contained in the Article and would, to that extent, be void.

Several Courts judgements have held that the sentence being part of substantive law, any amendment in the law relating to it does not affect any penalty or punishment already incurred, similarly amending ordinance coming into force subsequently, the petitioner cannot be tried in court by inserting provisions of amending law retrospectively.https://republicpolicy.com/?s=article+10

In the case Lt. General (Retd) K.M. Azhar Khan vs Superintendent, Kot Lakhpat Jail, it was contended that at the time when the detenue has punished, the sentence was to be counted after taking into account the remissions permissible under relevant statutory rules on the subject. Still, after the ordinance (withdrawal of Remission of Sentences Ordinance X of 1976), the period of sentence to be undergone has increased, and denial of statutory remissions to the detenue amounts to increasing the sentence.

It was held that to grant or not to grant remission is a subject separate from the imposition of penalty; therefore, the guarantee contained in Article 12 (1) (b) is towards the maximum penalty authorized by law and not about maintenance of any particular remission system in Jail. Where the quantum of a penalty awarded to the accused was not enhanced from what it was at the time when the offence was committed but only the forum of trial ad been changed by operation of law, it is held, not violative of this Article. Article 12 (1) (a) furnishes a guarantee that an act or omission which was not punishable by law at a relevant time cannot be made punishable subsequently, and no offence can be created retrospectively. An act which was innocent at the time of its commission cannot be made punishable by subsequent legislation.” A trial under a new law would have no application under this Article where the accused were being tried by a court duly established by law and in accordance therewith.https://republicpolicy.com/article-9-of-the-constitution-provides-security-of-person-however-it-remains-only-in-the-book/

Hence, retrospective punishment is against the spirit of justice, and the constitution of Pakistan protects against retrospective punishments. Therefore, the legislation and delegated legislation must be carried out strictly in line with article 12 of the constitution so that the fundamental right of the citizens shall be protected against retrospective punishment.  

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