Protection of Prisoners during Pandemic and Administration of Justice

Dr Saqib Jawad

Dr Saqib Jawad

Should prisoners charged or convicted in minor offences be released from overloaded prisons in Pakistan during the Covid-19 epidemic?

As of 5 April 2020, coronavirus outbreak has so far resulted in 12,13,869 cases and 65,603 deaths worldwide. World Health Organization (WHO) declared a worldwide emergency in this regard. Pakistan is also affected and cases, as well as deaths, are increasing day by day. As a consequence, certain administrative measures were taken and the lockdown has been imposed in almost all regions of the country. Prisons were also seen among the dangerous places where the outbreak could spread and result in a huge loss of human lives.

Anticipating this danger, the first judicial step was taken by Islamabad High Court, Islamabad. On 20-03-2020, the Court made two significant observations reproduced as follows:

First, that: “The World Health Organization has declared emergency in the wake of the outbreak of “corona virus”. The State of Pakistan has also formulated a comprehensive National Action Plan. In this regard the principle of “social distancing” has been adopted and is being strictly implemented. The concern about spread of the corona virus is most relevant to the prisons. The confined space of a prison makes it virtually impossible to implement the policy of “social distancing”.

Second, that: “The prisoners are vulnerable and exposed to suffer irreparably in case of an outbreak. Prisons, which are overcrowded, have high turnover and intolerable living conditions, could potentially become epicenters for outbreak of the deadly virus. A prison outbreak is likely to present potentially deadly risk not only to its inmates but the general public as well. The appalling conditions and health facilities would definitely exacerbate such a crisis. The inmates of the prisons need to be cared for because they are absolutely dependent on the State and most of them cannot even afford to approach the courts. The Federal Government has, therefore, justifiably adopted the policy of reducing the population of the prisons in order to meet the challenges posed by the invisible enemy i.e. the corona virus”.

Based on the above observations, IHC ordered that under trial prisoners confined in offences not falling within prohibitory clause shall be released even if their bail has already been refused, as pandemic was declared to be a fresh ground. Sindh High Court also tried to follow the same policy, but instead of passing any order, directions were issued to the district judiciary to take appropriate steps.

Thereafter, a petition was filed before the Supreme Court of Pakistan, and the Court in its order dated 30-03-2020 restrained all the high courts and all the Provincial Governments/ICT/Gilgit-Baltistan from releasing prisoners from jails. It was further ordered that if any such order was passed and was not given effect, the same shall not be implemented until further orders.

The matter was again heard on 01-04-2020 and a report was submitted before the Court by the President Supreme Court Bar Association with the heading ‘what makes Pakistani prisoners more vulnerable through the Coronavirus’. The report stated that “there are 114 Jails in Pakistan which have the capacity of accommodating 57,742 prisoners but in fact, there are 77,275 prisoners in these Jails…..there are 1,500 elderly prisoners above the age of 60 years”. A criminal miscellaneous application was also filed by the Attorney General for Pakistan which also contained certain recommendations. However, the Supreme Court called the reports from the Inspectors General, Prison, all over Pakistan, “to submit their respective reports regarding the population of prisoners in their respective prison and the actual capacity of the prisons and also point out the categories of prisoners who are under trial or convicted and a separate list of prisoners, and also the vulnerable prisoners, i.e., the women prisoners and elderly prisoners, above the age of 60”.

On 07-04-2020, the SC has passed an interim order, recalling the bails granted to under-trials prisoners (UTPs) by the High Court of Sindh and the Islamabad High Court and has ordered authorities to arrest all detainees which had been released due to coronavirus outbreak. However, the SC has excluded the prisoners suffering from a physical or mental illness; UTPs who are 55 or older; male UTPs who have not been convicted in the past; and female and juvenile prisoners. The proceedings will continue.

Natural disasters and famines are not new to humanity. However, steps were always taken to curtail human sufferings during these situations, even in the cases of extreme nature. For instance, in Islam, hudood crimes are defined in the Holy Quran or Sunnah of the Holy Prophet (ﷺ) and it is also said that once the crime is established, no one can suspend a hadd. In one such incident, some people at the time of the Holy Prophet (ﷺ) wanted to intercede for a rich woman who was accused of theft and the Messenger of ALLAH (ﷺ) said: “Do you intercede regarding a punishment prescribed by Allah?” Then he stood up and stated: “O people, those who came before you were destroyed because if a person of high status committed theft among them, they would spare him, but if a person of lower status committed theft, they would apply the punishment upon him. By Allah, if Fatima the daughter of Muhammad were to steal, I would have cut off her hand”. (Ṣaḥīḥ Muslim: 1688).

However, it has also been reported that Umar ibn al-Khattab (may Allah be pleased with him) suspended the punishment of amputation for theft during a severe famine when people were stealing food for their survival. Umar ibn al-Khattab (may Allah be pleased with him) is reported to have said: “Do not cut the hand of the thief who steals dates in the year of famine”. (Muṣannaf ‘Abd al-Razzāq: 18371). Said act of the second Caliph was endorsed by the remaining companions and orthodox Muslim scholars, thus is an authority in Islamic law.

The problem of prisoners during this pandemic is being faced across the world. For instance, the USA is facing the same problem and its prions are also overcrowded like us. Health problems also exist. Judith Resnik, Professor of Law at Yale Law School, in this regard says: “putting constitutional obligations into practice for the prison population-for Covid-19 and other diseases-is daunting. Yet there are ways to lower the risks”. She then suggests some measures including proper placement of prisoners, invoking the authority of pardon by governors, and improvement in infrastructure.

If we see the situation of prisons in Pakistan, it is established that they are overcrowded. It was also discussed in the Supreme Courts’ order dated 01-04-2020 that more than 800 posts of doctors are lying vacant in the prions and respective governments have not taken any serious step to fill the same. In such a situation, leaving the prisoners at the mercy of arrangements made by prison administration and authorities is not advisable.

The SC’s order dated 07.04.2020 is appreciable as it approves the release of some categories of prisoners, while directs arrest of those who do not deserve such an extraordinary relief keeping with the nature of crime they have committed. In the final decision, the SC may also advise measures for those prisoners who cannot be released due to the severity of the offence or having been convicted in the past.

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