OUR jails are notorious for overcrowding and lack of hygiene. In light of the Corona pandemic, therefore, it seemed eminently sensible when various high courts starting with Chief Justice Athar Minallah of the Islamabad High Court directed release of various categories of under-trial prisoners and others convicted of minor offences. Bar councils — which had earlier proposed similar steps — applauded the orders. Provincial governments, especially the Sindh government (which has won rare acclaim for its proactive management of the pandemic), followed with their own steps to reduce prison populations.

Jail conditions are not conducive for “social distancing”. Viral outbreaks quickly, and inevitably, infect entire prison populations. Also, our jails lack basic medical facilities. When hundreds of prisoners start falling to Covid-19 pneumonia, do you bring in (unavailable) ventilators or do you ship the infected out to overstressed hospitals? Or do you let them die? (To those fond of Darwinian solutions, bear in mind that under-trial prisoners make up 61 per cent of our 75,000-odd prison population. Given past statistics, it is virtually certain at least 30,000 of those prisoners shall eventually be found innocent.)

Moreover, Article 11 of the UN Declaration of Human Rights requires a person to be presumed innocent until proven guilty. Article 10-A of our Constitution enshrines the same principle. By definition, therefore, under-trial prisoners are deemed innocent. They are automatically entitled to liberty (i.e. bail) unless there are compelling reasons of public interest to deny it to them. Unfortunately, neither our courts nor our laws of bail respect this basic principle of human rights and modern jurisprudence. Constrained by colonial history — they require, instead, the accused to satisfy tests for bail originally prescribed by the Statute of Westminster in 1275.

But we need not debate reform of bail laws here. The immediate crisis before us requires balancing of competing social interests. No one wants dangerous convicts to be set loose upon society. On the other hand, potentially innocent under-trial prisoners should not be forced to run the risk of contracting the virus. Confining the elderly and medically vulnerable, in the circumstances, seems simply inhumane. And if public interest dictates reducing prison populations to conserve medical resources or to thwart the virus’s spread, it is just common sense to release those accused (or even convicted) of lesser offences.

Other countries have already drawn a balance. Iran has released 85,000 prisoners accused of lesser offences. Terming prisons as “petri dishes” for Corona, US Attorney General William Barr has recommended release of elderly and medically vulnerable persons from federal prisons. Turkey is passing laws to halve prison sentences (except for serious offences) and allow release of up to 100,000 prisoners. Afghanistan is releasing some 10,000 juvenile, female, over-55 or medically vulnerable prisoners. From Canada, Scotland and Germany to Poland, Azerbaijan and Ethiopia, governments throughout the world are taking similar action.

On Monday, however, our Supreme Court suspended all such orders for release of prisoners. It did so — over the protests of the Supreme Court Bar and the Pakistan Bar Council — on an appeal filed, not by any government, prosecution authority or victim/complainant, but an individual lawyer purportedly acting “in the public interest”. Why did the apex court pass an interim order that apparently flies in the face of global consensus? The order itself gives no reasons, so we can only speculate.

Some in the Bar paint it as a turf war. The mass release of prisoners without a specific authorising law was an act of judicial activism requiring the Islamabad High Court to resort, instead, to its constitutional prerogative to enforce fundamental rights. In the last hearing, the Supreme Court bench was vocally critical of the High Court’s approach. But did the Supreme Court not use the same prerogative to justify projects ranging from dams to circular railways? Surely, the standards of judicial activism must be consistent for both constitutional courts?

Another explanation could be that, like the federal government, the apex court is a little behind the curve in appreciating Covid-19’s seriousness. It is hard to imagine today that on 3rd of March — barely a month ago — Prime Minister Imran Khan scolded Health Adviser Zafar Mirza for wasting time in Taftan on a provincial health issue and the Cabinet refused Mirza’s proposal to suspend procurement rules and urgently import Rs760 million worth of protective equipment. Now, we are desperately seeking the same equipment in an increasingly scarce market.

Similarly, despite repeated calls by lawyers’ bodies, the Supreme Court initially refused to reduce fixation of cases and extend limitation periods for litigants unable to file cases due to lockdowns. In both instances, the High Courts were left to their own initiatives. In those instances, however, the apex court eventually adopted the Islamabad High Court’s initiatives. In the present case, it has gone the other way.

In times like these, we need the Supreme Court to lead, not follow, the curve.

We cannot predict, today, Covid-19’s impact on Pakistan. If we are both smart and lucky, we may escape with only hundreds of deaths. If we end up like Italy, Spain or Iran, there could be many thousands more. And if we bury our heads in the sand, the death toll could reach the hundreds of thousands. When faced with unprecedented crises, there is a powerful instinct to avoid difficult and potentially risky decisions and stick to your old patterns. But deciding to do nothing is still a decision. And it may still be visited with disastrous consequences.

In Shehla Zia’s case, Saleem Akhtar J. introduced a powerful tool to our jurisprudence — “the precautionary principle”. Drawn from the 1992 UN Declaration on Environment, the principle requires where “there are threats of serious damage, effective measures should be taken to control it and it should not be postponed merely on the ground that scientific research and studies are uncertain and not conclusive. It enshrines the principle that prevention is better than cure. It is a cautious approach to avert a catastrophe at the earliest stage... [I]t seems reasonable to take preventive and precautionary measures straightaway instead of maintaining status quo…”. The principle should apply with greater force where the likely harm shall be measured in human lives. Far better to do too much than too little.

The author is a barrister

Published in Dawn, April 4th, 2020