Prisoners in pandemics

The saga of the rights of prisoners during a pandemic ended with the Supreme Court (SC) of Pakistan deciding that only a limited category of prisoners awaiting trial deserved temporary freedom. In doing so, the SC refused to go as far as the more expansive judgment authored by the Islamabad High Court (IHC). This unfortunate result stems from the SC not considering vital legal principles that bore crucial relevance to the issue before them.

Constitutional principles were the first to be ignored. The Constitution of Pakistan guarantees to every person the right to life, dignity, and the presumption of innocence. All three are violated if we refuse to release prisoners awaiting trial during a global pandemic.

The guarantee of dignity is perhaps the most important right in our constitutional framework. Purely because it has the distinction of being the only fundamental right that cannot be restricted — even if you are a prisoner. Dignity means that all human life is of equal value. Depriving state institutions of indulging in rogue philosophical experiments of preferring some lives over others.

It follows that in order to not fall afoul of the promises made in the Constitution, there needed to be strong legal arguments for detaining some prisoners awaiting trial and not others. The SC does not provide these arguments. In fact, its final decision regarding who should be released appears completely arbitrary. It does not provide any reasons regarding why the prisoners it is willing to release deserve greater compassion than others.

This doesn’t square well with another Constitutional principle: prisoners awaiting trial are presumed innocent until a court finds otherwise. That means there is no justification for putting some innocent people at risk of infection by Covid-19 and not others. These innocent people continue to suffer punishment before judgment by languishing in prison for years awaiting Pakistan’s legal system to take time out of its busy schedule of strikes and bar elections to finally get around to delivering a verdict. It is a damning indictment of our criminal justice system that approximately 61% of Pakistan’s prison population is made up of people awaiting trial.

To see the absence of these arguments in the judgment of the SC is disappointing, but disappointment with the judgment does not end there.

The SC also decided that no provincial government had the power to release prisoners either. Yet, Sections 401-402 of the Criminal Procedure Code (CPC) empower provincial governments to issue directives to release prisoners in order to manage prison populations and suspend or commute sentences. The SC never engaged with this point. Instead, it gave a blanket decree halting all such directions by the provincial governments.

Not only did this ignore the provisions of the CPC, but it also ignored well-established principles of the separation of powers. The executive branch is in a much better position to determine the necessity of releasing prisoners during a public health emergency. It after all has access to expert opinions that the SC does not. The judicial branch is not supposed to interfere with executive policy decisions unless they are clearly unreasonable.

In this case, unreasonableness never entered the picture. Consider the facts before the provincial governments: Pakistan’s prisons operate at around 134% of their actual capacity. Not ideal for social distancing. For a disease that is fatal to the elderly, around 1,500 prisoners in the country are above the age of 60 years. Given the impossibility of social distancing inside a prison, even one case can cause a sudden spike throughout the prison population. This can result in infecting not just prisoners, but also, around 30,000 people working in prisons across the country. This has already started in Camp Jail, Lahore.

To call our prisons ‘petri-dishes’ for Covid-19 is putting it mildly. In 2015, a committee formed by the SC to investigate prison conditions reported that Pakistan’s prisons were overcrowded and lacked basic sanitation and hygiene facilities. Furthermore, there were hardly any facilities for medical treatment.

In addition to these points, the SC judgment also has certain paradoxes.

First, at the core of the SC’s disagreement with the IHC was just one issue: Whether the High Court could exercise suo motu powers? The SC believes it could not. Article 175(2), it argued, says that no court can exercise powers not given under the Constitution or law. Had those who drafted the Constitution wanted to grant a High Court suo motu powers, they would have done so in clear words.

This argument by the SC has weight — but it cuts both ways.

The same reasoning can be used to question the SC’s exercise of suo motu powers. The Constitution never explicitly grants that power to the SC either. In fact, the SC has implied the power from a reading of many different constitutional provisions along with its own Supreme Court Rules (which, to be clear, cannot contradict the Constitution).

There is only one instance in the entire document where a clear power to issue suo motu directions is given and that is for the Federal Shariat Court.

The second paradox is more interesting. According to the SC, there is no basis in our jurisprudence for granting bail because of an outbreak of an infectious disease. If that is assumed to be true then how did the SC grant the very same relief to a limited category of prisoners?

I also see this as a missed opportunity by the SC. The bail jurisprudence that the SC refers to predates our Constitution. It is based on colonial jurisprudence. With the advent of Article 10-A, through the 18^th Amendment, the entire jurisprudence regarding the grant of bail needs to be revisited.

Regardless of this issue, if the SC was going to release some prisoners then why not go as far as the IHC? After all, it had the legal authority to do so. The CPC divides criminal offences into two categories: bailable and non-bailable. Bailable offences are of course a no-brainer. For non-bailable offences, the Code states, in Section 497 supplemented by precedent from the SC, that those accused of crimes punishable with less than 10 years imprisonment are to be granted bail as a rule unless exceptional circumstances exist. These were exactly the category of prisoners that were being released by the High Courts. Prisoners that posed no danger to society because they were accused of minor crimes.

All of this shows that the SC’s judgment lacked the depth that this very pertinent issue required. It still has time to rectify these problems as it hears the case of the broader coronavirus outbreak.

Each day that passes creates a risk of an outbreak of Covid-19 in our prison population. If that happens, it will not only cripple Pakistan’s healthcare system but will also be a colossal failure in protecting the Constitution’s right to life, liberty, and dignity.

Published in The Express Tribune, April 14^th, 2020.

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