Pakistan’s Supreme Court has recently suspended orders given by the high courts and provincial governments that sought to send prisoners home so that coronavirus (COVID -19) doesn’t spread in Pakistani jails. Passed as an interim order on March 30 in a public interest litigation against the intended release of prisoners, the apex court’s order restrained the governments of all provinces — and Gilgit-Baltistan — and the federal government from releasing any prisoner. While doing so the apex court is reported to have questioned the legality of such orders.
The Supreme Court’s order has led to an immediate negative reaction among human rights lawyers, activists, bar associations and bar councils. Leaders of the Pakistan Bar Council and the Supreme Court Bar Association have expressed their disappointment. It has, therefore, turned a legitimate policy—aimed at reducing the risk of spread of a highly infectious disease among the most vulnerable—into a controversy of sorts.
Prisons are universally considered highly vulnerable to infectious diseases. Being overcrowded, poorly funded and under-staffed, the environment of Pakistani prisons is highly conducive to infectious diseases such as tuberculosis, HIV, Hepatitis etc. Overcrowding, poor hygiene and frequent shuttling of under-trial or pre-trial prisoners between prisons and courts can create the perfect storm of disease transmission.
The number of cases affected by Covid-19 are rising exponentially. There is a real danger that if Covid-19 spreads in the prisons, the death toll could be huge, and potentially lead to serious violence. Even though there is little authentic and detailed data available about prisons, some facts are known: under-trial prisoners constitute a big part of the prison population; the jails are overcrowded; and the health risks are rampant. These conditions violate constitutional guarantees to freedom from torture and right to dignity as well as international law codified in the United Nations Convention against Torture and the Covenant on Civil and Political Rights. Having ratified both, Pakistan is bound to implement them.
In 2017, the United Nations Committee against Torture reviewed Pakistan’s implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and expressed its serious concerns “at reports that severe overcrowding and very poor conditions are pervasive in places of detention in the State party, including unsanitary facilities and insufficient access to medical services… It is also concerned about reports that 70% of the prison population consists of pre-trial detainees and reports that juvenile prisoners are kept together with adults.”
In view of the imminent danger, other countries are reducing the size of their prison populations. Iran decided to release about 54,000 prisoners in the first week of March. Turkey intends to release one-third of its 300,000 large prison population by introducing new laws. Similar steps are being urgently taken in the UK, Australia and other jurisdictions.
In Pakistan, about a week ago, a prisoner in pre-trial detention at Lahore’s District (Camp) Jail had to be taken to hospital after being diagnosed with coronavirus. We do not know how many more may have contracted it.
The findings of the UN Committee report were affirmed through the data the Federal Minister for Human Rights Dr Shireen Mazari gave to the Islamabad High Court in January this year. The statistics she gave about the under-trial prisoners in our jails are astounding: these include 71 percent of all prisoners in Khyber Pakhtunkhwa, 70 percent in Sindh, 55 percent in Punjab and 59 percent in Balochistan. The federal government also admitted that “More than 50% of the prisons are without medical supplies and equipment. Most prisons do not have medical specialists. There are few doctors for women and children and nothing for persons with special disabilities.”
Dr Mazari had data on their health as well: 1,823 inmates were said to be suffering from hepatitis, 425 had HIV, 173 had tuberculosis, 594 had mental illnesses and 2,192 suffered from other ailments. As a criminal law practitioner who gets a chance to visit the prisons frequently, I am of the view that these figures regarding inmates’ health underestimates the extent of the problem.
Covid-19 will not only infect prisoners but also over 25,000 prison personnel working in prisons across Pakistan. The exponential impact could prove to be overwhelming for the prisons authorities and the healthcare system to manage in a reasonable manner.
It was mainly because of overcrowding and unsanitary conditions and the potential impact the spread of virus could have that provincial governments showed an intention to release prisoners. By the third week of March, there was a blanket ban on outsiders’ meetings with prisoners, and after a few weeks of dithering, the prisoners were stopped from coming to the courts for trials.
As the threat of Covid-19 reaching the prisons became more palpable, the high courts in Islamabad, Peshawar, Lahore and Sindh passed directions on the way in which prison populations could be reduced. They referred to prisoners undergoing trial for non-serious offences carrying lesser punishments and convicts who have done most of their time. The provincial governments also adopted policy to release prisoners to lessen burden on prisons.
Irrespective of the Supreme Court’s order, the government’s plans to release prisoners was inadequate to begin with. As an observer of the criminal justice system, I would argue for a more liberal and non-discriminatory approach — particularly with reference to those facing charges carrying death penalty or being prosecuted under the Anti-Terrorism Act. For the latter, it is a widely known fact that a lot of cases do not fall within the definition of “terrorism”. Besides, a high number of convictions, most notably death penalty cases, are either set aside or commuted to lesser punishments in appeals.
With due respect, the Supreme Court’s order in this regard is an example of judicial overreach. There are provisions of law which grant the government the powers to take necessary measures to keep the size of a prison population within manageable limits. Provincial governments have wide-ranging powers to meet the crisis compounded by overcrowding and unsanitary living conditions in the prisons.
For instance, Chapter XXIX Sections 401-402 of the Code of Criminal Procedure gives the provincial government powers to suspend or commute the execution of a sentence or remit one with or without conditions at any time before the completion of sentence. These powers are not subject to judicial approval.
The law clearly, and rightly, gives the executive the powers to deal with such situations as we see arising out of Covid-19. Of course, the policy of releasing prisoners cannot be adopted without taking precautionary measures to ensure public safety. Appropriate conditions can be imposed on prisoners who will be released.
It is not for the judiciary to become a hurdle at a time of a crisis. Instead, it can cautiously observe and make recommendations to the governments to enable them to judiciously perform their obligations. One hopes that the apex court will in its final order correct the mistake made last week.
The writer is a lawyer and tweets @LegalPolitical
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