Prisoners in a pandemic

Prisons and jails are amplifiers of infectious diseases and the outbreak of the Covid-19 pandemic is no different.

According to a recent report of the commission constituted under the directions of the Islamabad High Court in Khadim Hussain vs Federation of Pakistan, there are over 77,000 inmates in Pakistan’s prisons, exceeding the authorized capacity by an alarming 36.4 percent. With the 23rd largest prison population in the world, it is no surprise that Pakistan’s prisons are incubators for the disease.

Earlier this year, the Supreme Court of Pakistan set aside the directions issued by the Islamabad High Court and the Sindh High Court for the release of accused persons and convicts to mitigate the spread of the virus in prisons and jails, consequently allowing release for only a limited category of prisoners.

Accused persons charged for offences under non-prohibitory clauses, vagrancy laws or offences carrying a sentence of less than three years could be considered for bail on personal bond subject to the following conditions: “(a) the benefit shall not extend in cases involving abuse / violent acts against women and children; (b) benefit shall first be extended to persons otherwise suffering from ailments or physical or mental disability; (c) benefit shall be extended to under trial prisoners [sic] who are 55 years of age or older and then other male under-trial prisoners [sic], provided there is no history of past convictions; (d) benefit shall be extended to all women / juvenile under trial prisoners [sic].”

Additionally, the following categories of convicted persons could be considered for release by the provincial governments under Section 401 of the Code of Criminal Procedure 1898: “(a) convicts who have otherwise completed their sentences but remain in jail on account of non-payment of fine / monetary penalty; (b) women / juvenile convicts who have completed 75% of their sentence and have no history of past convictions; (c) convicts whose remaining term in jail is six months or less provided offence was not violence against women or children; (d) women / juveniles who were sentenced to a term of one year or less.”

As the second wave of the coronavirus pandemic approaches its peak in Pakistan, efforts to mitigate the spread of the virus in prisons and jails in accordance with the order of the Supreme Court remain unsatisfactory. Last month, the Implementation Commission, constituted in the matter of Khadim Hussain vs Secretary Ministry of Human Rights, submitted its report to the Islamabad High Court on the measures adopted by prison authorities in light of the pandemic, according to which no prisoners had been released on bail in the provinces of Punjab, Balochistan and Sindh, whereas 3228 prisoners had been released in Khyber Pakhtunkhwa.

These statistics, or lack thereof, are a matter of grave concern; with rampant overcrowding, social distancing is near impossible for prisoners, effectively constituting an insurmountable obstacle to preventing and responding to Covid-19. This is further aggravated by the fact that as of January 2020, 2400 inmates across Pakistan were found to be suffering from contagious diseases such as HIV, Hepatitis and Tuberculosis, thereby increasing their vulnerability to coronavirus. What was already a bad situation has been made significantly worse by an unwillingness to decarcerate during the pandemic.

It is relevant to mention that during public health emergencies, the government of Pakistan is obligated under domestic and international law to protect the rights of prisoners, the most important being the right of life. This right is provided for not only in the constitution of Pakistan but also the International Covenant on Civil and Political Rights. The government of Pakistan also has a duty to protect prisoners’ health and welfare, as provided under the Nelson Mandela Rules, the Prisons Act 1894 and the Pakistan Prison Rules 1978. These include the right to health services and right to contact with friends, family and lawyers. In light of the ongoing pandemic, it is therefore urgent that policymakers take the public health case for criminal justice reform seriously and make necessary changes to protect those in detention.

Multiple organisations and human rights defenders have suggested that the best way to control the virus in prisons is to dramatically decrease their population. The United Nation Office on Drugs and Crimes produced a set of recommendations in its advocacy brief titled ‘Covid-19 - Prisons and Pandemic: Inaction is not an option’ for addressing the challenge of an outbreak of Covid-19 in Balochistan’s prisons. These recommendations, although specific to the province of Balochistan, make the case for a mix of policy, judicial and other institutional measures in mitigating the risk of the virus in prisons and jails. In March, human rights organizations also issued a public statement, calling on federal and provincial governments to take urgent action to ensure the safety of inmates and staff in Pakistani prisons from the deadly virus.

While the adoption of sanitary measures and the provision of masks in prisons is a commendable step, the federal and provincial governments must do more to reduce prison populations in order to save lives and make their plans publicly available. Free Covid-19 testing of incarcerated persons and an official record of infected prisoners will also allow the state to adopt proportional measures.

As the pandemic continues to reshape the lives of all citizens in every corner in the world, no one is safe until everyone is safe, including those who are currently incarcerated. An effective response to prevent and mitigate the impact of Covid-19 in custodial settings is a pivotal component of the national response to this pandemic.

The writer is a Bertha Justice Fellow at the Foundation for Fundamental Rights (FFR).