Chief Justice of Pakistan Mian Saqib Nisar has recently taken notice of terminally ill prisoners confined in all prisons of Pakistan. This announcement was made in the backdrop of his visit to Central Prison, Karachi on May 12, 2018, where such prisoners remain confined. The doctrine of mercy also remains restricted.
Undoubtedly, legitimate law of land must prevail and all those who act against its spirit must be dealt with in accordance with said law. However, the ethos of punishment and retribution must leave a space for mercy, which is needed by certain types of convicts, especially old and terminally ill individuals. It doesn’t really make sense to keep such convicts incarcerated for an extended period. These people have been in war with fatal diseases, which makes it highly unlikely that they will repeat any criminal act or offense if they are released.
According to a press statement released by the Supreme Court of Pakistan on June 7, 2018, there are 91terminally-ill prisoners, with life threatening diseases, who remain confined in prisons throughout Pakistan.
Not only the doctrine of mercy, but also the law of land speaks in the favour of terminally ill and old convicts. Section 401 of the Code of Criminal Procedure (CrPC) confers powers upon provincial governments to suspend or remit the sentences of such convicts. It reads that when any person has been sentenced to punishment of an offence, the government may at any time without any condition suspend the execution of their sentence or remit all or any part of the punishment to which the criminal has been sentenced. However, it must be noted that provincial governments shall have no power, which is principally right, to remit offenders jailed for Karo Kari and other similar crimes.
Similarly, Pakistan Prison Rules (PPR) confers powers upon provincial governments to release prisoners on the grounds of old age, infirmity or illness. According PPR’S Rule 146, the government has the power to release prisoners on grounds of old age, infirmity or illness. For instance, a summary shall be submitted to the government through the relevant Inspector General and it shall be accompanied by the recommendation of the medical officer and opinion of the medical board.
What good will our jails do by holding someone who is extremely old? Or someone that is hanging on to their life by a thread. It is high time we revisit how we address the dying prisoners, who are rotting away in their jail cells
PPR’s Rule 146 reads that the superintendent will refer the case for release with the consent of the Officer In-charge of the Prosecution, in whose jurisdiction the prisoner’s offence was committed. This is if the disease is likely to prove fatal if the prisoner remains in prison, and that there is reasonable chance of recovery if the prisoner is released.
PPR’s Rule 140 reads that the case of all prisoners sentenced to imprisonment for life shall be referred to the government, through the Inspector General, after they have served fifteen years of substantive imprisonment for consideration of release.
The Legal Aid Office, which is based in Karachi, has been working for prisoners’ rights. LAO’s research has substantially informed this article; they have put up a case for the release of older and terminally ill prisoners. The government of Sindh must listen to the organisation and consider its plea. The other organisations working in others parts of Pakistan should also file cases for such prisoners. They must make best use of judicial will of Supreme Court in this regard which stands in the favour of old age and terminally ill convicts.
Above all, right to life and liberty are fundamental human rights enshrined in the international human rights regime and in the constitution of Pakistan. Article 9 of the Constitution guarantees that no person shall be deprived of life or liberty.
My plea for release of old and terminally-ill prisoners in not only grounded in substantive law, but it is also anchored in case law. In the cases, such as Muhammad Alias Bakhsh versus ATC Makran at Turbat and 428Hammad Abbasi versus Superintendent, Central Adyala Jail, Rawalpindi, the courts have upheld the principles of liberty and remissions.
We also must realise that every person is a product of their social settings, since it is not people but society and its norms that produce crime. Thus, in addition to the punishment, older and terminally ill prisoners qualify for mercy in legal and normative terms.
Thus, federal and all the provincial governments must take serious and consistent efforts for the release old and terminally ill convicts. The judiciary also needs to push governments in this regard. Additionally, political parties, media and other public opinion making agencies must raise this matter. In addition, civil society must make sincere and consolidated efforts to help the realisation of this cause; especially political parties, which must reflect on the rights of prisoners in their manifestoes.
The writer holds a Master’s degree in Human Rights and Democratisation from the University of Sydney, and can be reached at [email protected] or on Twitter @Jamiljunejo
Published in Daily Times, June 19th 2018.