Every person is presumed to be innocent until proven guilty beyond any shadow of doubt, however, 48,008 under trial prisoners in Pakistan are rotting behind the bars from years and at present times exposed to the COVID-19 epidemic, even though their innocence or guilt is yet to be ascertained. Many a times the prosecution fails to prove charges even after the accused has completed term of sentence provided for an offence or die. Blackstone’s ratio of criminal law says, “It is better that ten guilty persons escape than that one innocent suffers.”
COVID-19 catastrophe calls for self-Quarantine, isolation and social distancing to subjects of all 198 affected countries. Hostels are evicted and universities turned into quarantine-zones to accommodate the precipitated. However, in times of prescribed and enforced reasonable distance, Prisons in Pakistan are overcrowded, accommodating 77,275 inmates including Juveniles, women, senior citizens, and those who are health impaired instead of its lawful capacity of 57,742 which makes it an incubator for diseases.
Rimmel Mohydin, South Asia Campaigner at Amnesty Internationa said:
“Prisons in Pakistan face massive overcrowding, overruling the possibility of social distancing, with the potential for a large outbreak. Hygiene supplies remain limited as does healthcare. Pre-trial detainees are taken to courts, where they may be exposed to the virus. Pakistani authorities should seriously consider reducing the prison population,”
“Physical distancing and self-isolation in such conditions are practically impossible”
People who are deprived of liberty through due process of law do not cease to be human and other rights and protection to the exclusion of liberty remain intact
“Now, more than ever, governments should release every person detained without sufficient legal basis, including political prisoners and others detained simply for expressing critical or dissenting views,” Bachelet said.
Due to lamentable conditions of prisons and the economic burden put on states due to the recent health emergency have freed undertrial prisoners and pardoned those convicted of minor offences with sentence up to 3, 5 and 7 years varying per country. Hundreds of thousand inmates are freed by United States, Canada, Iran, Ethiopia, India, China, UAE and others combined.
In Pakistan, Islamabad High Court and Sindh High Court, have not kept behind in the race and released 408 and 829 prisoners respectively. Other provinces are either considering it on their motion or through Writ Petitions filed by Human Rights Activists and Organizations. Writ petition titled as Saifullah Muhib Kakakhel VS Govt of Khyber Pakhtunkhwa is fixed for 31st of March and is expected to sustain decisions of High Courts of Sindh and Islamabad under the principle of Stare Decisis. An appeal have been moved to the Supreme Court of Pakistan, against the judgement of liberation of Islamabad High Court which was heard by a 5 member Bench Headed by the Chief Justice himself on 30.03.2020, which however, suspended the decisions and maintained status-quo till final decision of the appeal.
People who are deprived of liberty through due process of law do not cease to be human and other rights and protection to the exclusion of liberty remain intact. However, liberty is a right enshrined in article 15 of Constitution of Pakistan and Article 9 of International Covenant on Civil and Political Rights (ICCPR).
Even the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that:
“Principle 38: A person detained on a criminal charge shall be entitled to trial within a reasonable time or to release pending trial.”
Due to these rights enshrined in local laws and principles given by international law, contemporary Criminal Jurisprudence provides that “Grant of bail is rule and refusal is an exception”.
Nevertheless, the most important right, applicable here is that of life and its security. Which too is declared by Universal Declaration of Human Rights and provided for not only our Constitution but International Covenant on Civil and Political Rights (ICCPR). We not being able to comply with the calibre put forth by United Nations Standard Minimum Rules for the Treatment of Prisoners and current lack of health security due to the epidemic threatens prisoners’ life, which calls for suspension of convictions and bails to under-trail, legally presumed innocent inmate. Article 1 of International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also discourages and protects punishment to suspected criminals.
Protection of liberty of persons has evolved with time along with genesis of Concept of Bail which traces back to 399 BC where Plato tried to create bond for release of Socrates.
Law of bail was emphasized on in case of Subhash Kumar Sharma (AIR 1991 SC 420) Supreme Court of India held that “Bail is rule and committal to jail is exception warranted in most extra ordinary circumstances”. This judgement is referred to in plethora of judgements in courts of Pakistan, however, many are denied bail including Juveniles, elderly people, women and those charged for pity matters punishable with fine or a short time of imprisonment. Even those who require immediate medical attention are denied bail leaving them to wrack and ruin. Only in rarest of the rare cases like Mian Muhammad Nawaz Sharif’s case (2020 PCr.LJ 213 Islamabad), who as a convict was granted bail to protect his life. If only we follow this judgement alone on ground of “Equality” Article 25 of Constitution and principle of stare decisis, we will set free 5166 prisoners with health issues throughout Pakistan.
Since issue of bail is of liberty, justice, public safety, burden on public treasury and of health emergency in shape of an epidemic, insist that a developed jurisprudence of bail as applied on the privileged convicts/ accused shall be made applicable on all those whose life and liberty is at stake.
To protect life and liberty of prisoners considering the global outbreak of COVID-19 and the risks involved therewith, to shed burden on providing for the jam-packed prisoners and to dispense hasty justice to them. Government and the relevant quarters should take the following measures:
1. Grant Bail to under Trial Prisoners
2. Pardon to those who are convicted/ accused of minor offences under article 45 of the Constitution of Pakistan, 1973.
3. Suspension of sentence of all those who are sentenced to punishment for 5 years or less
4. Discharge convicts under The Probation of Offenders Ordinance, 1960
5. All those who’s release date is nearby should be given remission.
6. Those who have health issues i.e. Hepatitis, HIV, Asthma, Kidney and other medical and mental issues which requires urgent attention should be given bail.
7. Juveniles and Women who are already given relaxation under Cr.PC be given bail.
8. Those who are unable to pay fine and are imprisoned in lieu of that should be discharged.
9. Those who do not have sureties and are undergoing imprisonment in lieu of that, should be liberated on their personal surety.
In rarest of the rare cases like “The Central Park Five,” where juveniles were wrongly sentenced for rape in 1989 in New York City, which later paid $41 million in 2014 as damages for the agony. But as a country of limited resources, economic handicaps and administrative loopholes should not risk lives of prisoners by putting to test our abilities of protection at the risk of thousands of lives, when those well-off than us have miserably failed. Never forget that prisoners are not sons of a lesser God or any less human than us nor can we ever make up for wasting a split second of somebody’s life that too in torment.
The author is a Human Rights Activist and A Lawyer based in Peshawar & Islamabad
Originally Published in Daily Times