The outbreak of novel coronavirus has caused mass hysteria and panic in the world. The virus has affected an alarming number of people all over the world. The number of cases globally stands at 7,23,723 with 34,000 deaths across 177 countries, according to a tally compiled from official sources. We have also witnessed a prodigious and exponential increase in the number of COVID-19 patients in Pakistan with the numbers piling up with every passing day. The deteriorating global situation forced the Federal and Provincial Governments to impose health emergency in the country to mitigate the spread of the deadly coronavirus. Although, the virus is affecting every community, not discriminating between the poor and the affluent, whether the powerful or the leader but through this piece, some attention is to be drawn towards the society’s vulnerable and helpless – the prisoners and whether their release would serve the end of justice in these unprecedented times.
According to the World Prison Brief & National Commission on Human Rights reports, the prisons in Pakistan are already crammed with an overwhelming number of inmates. The Jail population in Pakistan’s 98 prisons stands at 77,275, with 2300 confined in 11 Jails of Balochistan. An inmate at camp jail Lahore has tested positive for coronavirus, marking the first confirmed case in the country’s prison. He is currently in quarantine. This happened despite all the precautionary measures in place. This indicates that there is an acute risk of outbreaking of coronavirus among the prisoners. The Amnesty International took notice of the situation with great concern and asked the authorities to protect prisoners immediately as they fear the virus will spread like a fire in prison which will not be easily doused.
Admittedly, it is very difficult to maintain the WHO precautionary measures in Jails, such as social distancing, hand washing facilities, and providing sanitizers and masks to each prisoner. Therefore, not only Pakistan but other powerful countries such as the UK and USA are also considering to release their prisoners to contain the spread of the deadly coronavirus. This is in line with Article 12 of International Covenant on Economic Social and Culture Rights, which states everyone including prisoners enjoys a right to the highest attainable standard of physical and mental health and the States are under a duty to control the epidemic, in this case, COVID-19. Pakistan has already formulated a National Action Plan to fight Coronavirus but has failed to discuss how it will secure the prisoners from novel coronavirus. The deliberate inaction on part of the Government raises questions about the preventive measures of the Government to combat the spread of COVID-19.
The Chief Justice of Islamabad High Court Athar Minallah, filling the national leadership vacuum, issued an order in this regard highlighting the vulnerability of prisoners during a global pandemic. An excerpt from Justice Minallah’s judicial order states:
“…the confined space of a prison makes it virtually impossible to implement the policy of social distancing. 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 epicentres for the outbreak of the deadly virus…”
Considering the current health emergency in Pakistan amidst the serious threat of COVID-19 outbreak in the prisons, it would be fair and just to release under trial prisoners and convicts. The Government holds the power to release seriously ill and geriatric prisoners under Rule 143 and 146 of Pakistan Prisoners Rules 1978 (Commonly known as Jail Manual), read with Section 401 (1) Criminal Procedure Code, 1898. The Federal and the Provincial Governments can also exercise its powers under rule 216 and 217 of the Jail Manual to give special remission for 60 days or save as, the remission, which shall not exceed to one-third of the total sentence of the prisoners. To meet the moment in this unprecedented emergency, the President of Pakistan can also exercise his constitutional power to give pardon to the convicts under Article 45 of the Constitution of Islamic Republic of Pakistan.
Justice Minallah has already ordered the release of 1362 under trial prisoners who are currently incarcerated at Adiala Jail, setting the legal precedent for all others to follow. In this regard, Chief Justice Lahore High Court has also asked Jail authorities to file bail applications of prisoners accused/convicted of offences with less than 07 years of imprisonment for their release to avoid the transmission of the virus. Balochistan, Sindh and Gilgit Baltistan are yet to determine the fate of its prisoners while the prisoners in Islamabad and Punjab will be going home soon.
It is, however, well understood that the law allows the Government/Authorities to release the prisoners. Since the health emergency has been declared in Pakistan and considering the potential risk of COVID-19 outbreak in the Prisons, the Government of Balochistan, Home & Tribal Affairs Department has also ordered on 28-03-2020 to release the prisoners, other than those who are convicted in heinous crimes. To serve the ends of justice in these hard times of anguish and uncertainty, the Government of Balochistan, should release the seriously ill and elderly prisoners on priority basis and also suspend the sentences of convicts and release all under trial prisoners who are accused/convicted for minor offences and are no longer a threat to the general public. Furthermore, the police may not arrest in pity matters unless it is necessary to maintain the law and order.
Together, we can defeat COVID-19.