ISLAMABAD: The Supreme Court has asked the federal and provincial governments to expedite the release of prisoners on probation who are eligible to enjoy the benefit.

The court has also directed the governments to implement laws relating to the release of prisoners on probation.

In an order released on Tuesday, Justice Athar Minallah said the governments’ refusal to release prisoners on probation violated the fundamental rights guaranteed under Articles 9, 10-A, 14 and 25 of the Constitution.

Under the law, a prisoner can be released on probation if they demonstrate good behaviour during detention.

Justice Minallah says judicial system allows itself to be exploited by the privileged

In 2015, the court sought reports from federal and provincial governments over the implementation of laws relating to the release of inmates on probation.

Subsequently, the respective governments submitted reports, which were taken up by a two-member bench comprising Justice Minallah and former chief justice Umar Ata Bandial. The bench has now disposed of the matter and issued a written verdict.

‘Exploitation of justice system’

The order, written by Justice Minallah, said the reports submitted to the court demonstrated that “grave conditions affecting the fundamental rights prevail in prisons across the country”.

“It is an undeniable fact that living conditions and the treatment of prisoners in overcrowded and inadequately equipped prisons profoundly affect the constitutionally guaranteed rights.”

The judge said “weak and vulnerable” citizens are denied justice because the prevailing system “allows its exploitation by the privileged and those who wield influence”.

“Most of the victims of a non-functional criminal justice system are those who belong to economically and socially marginalised sections of society. They do not have the means to access the courts nor has the state fulfilled its constitutional obligation to ensure inexpensive and expeditious justice…

“In the circumstances … the benefit of enjoying release on the basis of probation is of pivotal importance and thus the enforcement of the laws relating to probation become crucial,” the judge said, adding it is the right of every eligible prisoner to be considered for release on probation.

‘Constitutional right’

While explaining the purpose of detention, Justice Minallah wrote: “The object of undergoing a sentence pursuant to being convicted by a competent court of law is to make the convicted person and others realise that what the former has done or his/her acts, omission, and conduct which have led to the conviction or handing down of the sentence were unacceptable.”

The judge added that prisoners, whether convicted or non-convicted, have “no choice but to place reliance for [their] right to life and other needs, such as medical attention, solely on the authorities holding [them] in custody.

“This reliance gives rise to a duty of care on the part of the state and its functionaries,” he said, adding this binds the state, under Article 9 of the Constitution, to ensure that every incarcerated person is treated “in a manner that does not expose [them] to harm”.

During incarceration, only the right of free movement is curtailed and not the constitutional rights to life and dignity.“The neglect of the executive authorities to perform their obligations and duties imposed by law and to give effect to the enforced laws, particularly relating to the inmates of prisons, amounts to a breach of the duty of care that is owed to the incarcerated prisoner.”

Published in Dawn, September 20th, 2023