On 20th March 2020, the Islamabad High Court (IHC), in a bid to prevent the spread of the deadly coronavirus in Pakistan’s overcrowded jails, ordered the federal government to:
- release under-trial prisoners accused of minor crimes,
- refrain from making any further arrests in petty matters, and
- release suspects in police custody.
On appeal, the Supreme Court set aside the order while questioning the authority of the High Courts to release under-trial prisoners on a suo moto basis, without hearing the complainant. It further held that such orders would tantamount to interference in the exclusive domain of the executive to frame policies for the safety of inmates. The Supreme Court went on to halt the release of hundreds of prisoners who were supposed to be released under IHC’s orders and barred all High Courts and provincial governments from passing any such order.
Moreover, the court approved a series of recommendations proposed by the Attorney General to give relief to vulnerable prisoners. According to these recommendations, prisoners can be freed if they have been charged with offences not falling under the prohibitory clause or carrying a sentence for less than 3 years of imprisonment, subject to the condition that the beneficiaries cannot be accused of violent crimes against women and children. Priority for release is to be given to elderly prisoners having no previous convictions and those suffering from a physical or mental disability. Furthermore, the concession may be extended to all women and juvenile prisoners under trial.
When passing the impugned order dated March 20, IHC observed that there was a great risk regarding the outbreak of the disease in terribly overcrowded prisons, therefore all those facing minor crimes should have been released on bail while under-trail prisoners facing a month or two in the completion of their sentence should also have been released. Even though the IHC’s order had been based on a humanitarian consideration, it was deemed to be a decision taken in haste. Thus, the Chief Justice of Pakistan, while setting it aside, observed that, “Coronavirus is a serious issue, [but] decisions taken in haste and fear won’t work.”
The IHC’s earlier order is laudable for two reasons:
- Firstly, the spread of disease in our prisons can be instantaneous because of poor hygienic conditions attributable to the lack of adequate sanitation facilities and the practice of keeping prisoners together in dormitories owing to space constraints. As per figures quoted in the Supreme Court by the Supreme Court Bar Association (SCBA) President, Pakistan has 114 jails with a capacity of 47,000 inmates, whereas the actual number of prisoners currently locked up is 77,000, meaning almost twice as many inmates than what the prisons are designed for.
- Secondly, because of the large population of ageing prisoners with underlying conditions, the death toll can be staggering. According to independent studies, infections like tuberculosis and Hepatitis-C can spread in jails hundred times faster than in regular dwelling places because of prisoners taking turns to sleep on damp floors side by side in stinking cell blocks, typifying breeding grounds for all kinds of bugs and viruses.
Having said this, one cannot fail to agree with the Supreme Court that the impugned order may have been passed in haste as no guidelines had been provided to identify the prisoners to be released. It was a blanket order purporting to benefit everyone charged with a ‘minor crime’, without defining such crimes. Due to the term ‘minor crime’ being subjective, some law enforcers took it to include offences against the National Accountability Bureau (NAB) law whereby even suspects in police custody were ordered to be released.
Accordingly, the Supreme Court, while setting aside the order, noted with concern that the incidence of robberies and dacoities had increased manifold since the release had been ordered. That was why, upon recommendations of the Attorney General, the Supreme Court approved the facility of bail to certain ‘predefined’ categories of prisoners, as detailed above.
Notwithstanding the corrective action taken by the Supreme Court, something positive did come out of the episode. The focus of public debate shifted to an unfolding humanitarian crisis which otherwise would have gone unnoticed and caught us off guard had the virus struck our prisons with full force. Moreover, because of IHC’s notice, the government had been forced to look for alternative solutions to control the spread of virus in our prisons.
In addition to the recommendations made by the Attorney General, the government will be well advised to take notice of the countermeasures taken by other countries, some of which are outlined below:
- Quarantine facilities outside jail may be established for the elderly/high risk prisoners, particularly those above 60 years of age. If this is not possible then at least their homes could be declared sub-jails. This would isolate them from other prisoners and help prevent the further spread of disease.
- Summary bail hearings may be held after issuing a notice to the complainant. This should address the concern of the Supreme Court regarding the release of offenders without giving a complainant the opportunity to be heard.
- Electronic tagging of the offenders released on bail may be considered so that prisoners could be re-arrested based on any concerns regarding their movements.
Releasing or not releasing prisoners on bail in the wake of an epidemic is a difficult decision, especially for countries with overcrowded jails and those having no healthcare or sanitation facilities for inmates. Still, considering the fact that there is very little opportunity for social distancing in jails, catching the infection is almost unavoidable, and the same may even lead to fatalities. Even if the general public is satisfied that the prisoners are already quarantined, there is a serious risk of resurgence of the epidemic once the prisoners get released after the completion of their sentences in two, three or four months. At the same time, releasing them en masse runs the risk of surge in crime rate. In any case, something needs to be done to ensure isolation of infected prisoners and protection of the elderly and vulnerable inmates against the catching of the disease.
To meet this challenge, the government of Pakistan has resorted to the prohibitory clause rule and the same has been endorsed by the Supreme Court. Nonetheless, this rule does not take into account the medical necessity of looking into the vulnerability of prisoners. The prohibitory clause scheme may work fine for those strong enough to withstand the onslaught of the epidemic, but for the elderly with underlying health conditions, this rule needs to be revisited. For medical purposes, the prime consideration for release should be the vulnerability of a prisoner rather than the severity of the crime with which he or she has been charged.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.