Recently I got forwarded the Islamabad High Court (IHC) Chief Justice Athar Minallah’s judgment on the plight of prisoners via email. This judgment was penned in April 2020. Normally our superior judiciary’s judgments are not circulated around beyond a limited circle of lawyers and judges. I thought I must read it to find out the public interest in this judgment.
I also got interested in the judgment due to my work on the dispensation of justice at the local level in the past. I have also recently advocated that those under-trial prisoners who are booked for non-heinous crimes should be released to help overcome the over-crowding in jails in the times of Covid-19.
Personalities still play a great role the way our superior judiciary works. There have been those judges in the past who have consistently undermined the democratic forces in the country through their conduct and judgments. Then once in a while, one gets a judge like Athar Minallah who consistently works to uphold the civil and political liberties, democratic values, and the rights of the downtrodden.
The main and powerful idea behind Minallah’s recent judgment on the plight of prisoners is that prisoners can sue the Pakistani state if they are inhumanly treated in violation of the jail manual and international conventions that Pakistan adheres to. There have been examples of prisoners suing the government over mistreatment. There might not been too many superior judiciary judgments calling for accountability of concerned officials through taking up the legal recourse.
The judgment in the case Khadim Hussain (who approached the Islamabad High Court) Vs. Secretary, Ministry of Human Rights, Islamabad, etc. methodically lays out the context of prisoners mistreatment, particularly those belonging to deprived socio-economic classes. It provides the chronology of setting up a Commission under the Minister of Human Rights in November 2019. The Commission submitted its reports in December 2019 and January 2020. The Commission’s final report has been made part of the judgment. The Commission has been changed into an Implementation Commission by the Islamabad High Court Chief Justice since the real challenge lies in the implementation of decisions to protect the rights of prisoners, particularly those at the pre-trial and under-trial stage who have a right to fair trial and decent living conditions in the jail.
The Islamabad High Court judgment discusses the status of fundamental rights in the prisons. It is followed by a section of legal regime governing establishment and management of prisons that includes the jail manual, and international conventions/treaties ratified by the state of Pakistan. The judgment throughout discusses the prisoners’ rights and their various violations as ably documented by the Commission headed by the Minister of Human Rights Dr Shireen Mazari.
It cites other relevant superior judiciary judgments and international treaties and various articles of the Constitution of Pakistan such as Article 9 that ensures the right to life and Article 14 regarding the inviolability of integrity and dignity. It ends for practical steps as the way forward under the section that discusses “Can a Prisoner Seek Compensation for Inhuman and degrading Treatment?”
The judgment states, “A prisoner who is held in custody in an overcrowded prison, having lack of sanitation is tantamount to cruel and inhuman treatment for which the State ought to be accountable because it amounts to a breach of its fiduciary duty of care.” The judgment also lays out that prisoners deserve adequate medical treatment while in prison to protect their right to life.
The prison authorities routinely violate the jail manual. They for example put the under-trial prisoners with hardened convicted criminals and often not uphold the rights of women and children. The judgment states that the jail authorities can be tries for “misconduct” if they violate the jail manual.
The judgment is an apt commentary on the broken down criminal justice system in the country. It states that recourse to remedies is available to prisoners under the law of tort and that the concerned officials can be held accountable for “false imprisonment, breach of statutory duty, violation of fundamental rights, misfeasance in a public office or on the ground of negligence.”
As the way forward, the Commission under the Minister of Human Rights has been turned into an Implementation Commission to oversee the practical steps to implement the recommendations of the Commission. The Judgment also recommends that the Parliament should legislate to set standards for prisoners’ treatment in line with Pakistan’s ratified international conventions and also establish an independent oversight forum.
Another important point in the judgment is regarding the provision of free legal aid for the deserving prisoners as the right to fair trial cannot be ensured if the poor prisoners cannot afford legal services. There is already Public Defender and Legal Aid Office Act 2009. The Judgment directs the federal government to make it operational. There are many other useful recommendations in the judgment including ensuring compliance with the prisoners’ access to information about their rights and the prescribed jail standards.
The bottom line is that the judgment on the plight of prisoners (majority of whom belong to the deprived socio-economic class) is an act of judicial activism. It is a cry for the rights of downtrodden when the executive and legislature have failed in ensuring the rights of prisoners.
It has some resonance of such judicial activism having taken place in other countries. For example a 2006 paper by Chantale Fiebig states that judiciary in California worked towards the reform in the prison system in the decade of early 1990s to early 2000s when the judges and the legal community sensed that the executive and legislature have failed to ensure the rights of prisoners and stop the inhumane treatment. Federal District Judge Thelton E. Henderson has been particularly cited for his role in prison reforms. The paper by Fiebig stated the judges have also worked to improve the prison conditions in the past in Texas as well. Concerned judges in other developing countries might have also worked for prison reforms in their countries.
Minallah and other conscientious judges by protecting the vulnerable poor prisoners’ rights are following the John Rawls Theory of Justice recommendation that advocates protection of the rights of the least advantaged ones in the society. The Pakistani state lacks both the resources and political will to protect the rights of the least advantaged citizens. Our development budget is always in the state of getting shrunk.
There are just not enough resources to protect the most disadvantageous. Even when there are resources available or for actions that do not necessarily require additional resources; political will is lacking to protect the vulnerable like pre-trial or under-trial prisoners. The question is whether the judicial activism of the Islamabad High Court judgment work when the executive and legislature have consistently failed in the past? One sincerely hopes that it does but only the time will tell.