- Under-trial prisoners remain at risk
The Coronavirus pandemic has turned out to be the most chaotic event of the century. Even though we have had our fair share of chaos ever since we hit the millennium, which was inaugurated soon enough by the 9/11 attacks and followed by a tide of terrorism, economic recession and so on. Yet, no event till now has impacted the daily life of the entire world. Covid-19 has effectively shut down Planet Earth and has sent mankind into a panic-driven battle.
Pakistan, like the rest of the world, is one of the players in this war and one of the most unprepared and unarmed ones, I’d daresay. Our healthcare system is simply not designed to cater to a wider spread of the deadly virus. Bearing that in mind, the calls for a lockdown started and Pakistan plunged into a complete shutdown soon enough.
While the government ran from pillar to post in a bid to curb the virus, or at least tried to do so, the judiciary found itself redundant as the stairway to justice was closed down. The attention-driven judiciary didn’t, however, stay away from the news for long as the Supreme Court stepped in to block the release of prisoners on bail owing to the pandemic.
The povincial High Courts issued notifications allowing under-trial and, in some cases convicted prisoners, to be released on bail so as to avoid the spread of the virus in the overcrowded prisons. Release orders were issued and the notifications started to be implemented, but not for long. The highest flag bearers of justice intervened, terming the bail notifications to be unconstitutional and observing that the Constitution did not allow bail to be granted in this manner.
Maybe Chief Justice John Roberts of the US Supreme Court should take a leaf out of our book. After all, the death toll is much higher in the USA, with the Trump Administration seemingly unable to control the spread of the virus. A few orders and observations from the bench there might do the trick
To the extent of the mode and manner of release, the Supreme Court could have issued certain directions, however disallowing the release altogether is beyond comprehension. In the past, the Supreme Court has maintained a consistent view that the Constitution is an organic document which is meant to apply to the changing circumstances and that a more dynamic approach has to be taken whilst interpreting it. And yet the Supreme Court, in contradiction of its earlier precedents, was not willing to make room for at least the under-trial prisoners who are presumably innocent unless proven to the contrary.
The provisions of law may be clear on these aspects. However, the world is rapidly adapting to the pandemic. Within weeks, most operations around the world have switched to virtual technology in a bid to adapt, but our Supreme Court continues to maintain its rigidity by even refusing to shut down for a few weeks. In barring the release of prisoners, the apex court has essentially stepped on certain Fundamental rights of the prisoners and has refused to acknowledge the organic nature of the Constitution. Such a narrow-minded approach in these testing times is bound to pave way for greater problems as opposed to solving them.
The prisons and our healthcare system are in no position to tackle the pandemic. If facilities to the under-trial prisoners cannot be provided within the prisons, then the least which could be done to protect their rights was to release them gradually. The presumed innocents have no reason to be kept at risk within unhygienic prisons which could become breeding grounds for the deadly virus. The mere glimmer of hope for these ill-fated individuals was blown away by the apex court vide its order of April 7.
To top it all, the famous Suo Motu came into play as the Supreme Court employed Article 184(3) of the Constitution as a bulwark to continue to keep the courtroom lively. What followed highlights the underlying rot in the system. The larger bench stopped short of directing the removal of the Prime Minister’s special assistant on health terming his performance as unsatisfactory during the battle with Covid-19. As it turns out, the Supreme Court judges are more qualified to issue directives to curb the pandemic. It is, apparently, well within the constitutional domain of the apex court to seek reports and subsequently dictate orders pertaining to the steps being taken within the country against the pandemic.
The theatrics of the past are returning once again to Courtroom no.1 as the Supreme Court continues to take up the coronavirus case. While keeping the executive in check is indeed the cornerstone of our judiciary, micro-managing an ongoing emergency is not. That coupled with unwarranted remarks pertaining to the cabinet and its performance is not going to gain admirers. The country is at war, the last thing it needs is interference by another institution into matters it has no business in. There will be ample opportunities in the future to play to the gallery; this isn’t one of them. When the lives of the citizenry are at stake, the healthcare system is at risk of being overwhelmed and the virus threatens to cripple the country, judicial activism cannot and should not try and become the saviour. Such intervention can be equated with the military establishment taking over owing to the government’s inability to tackle the coronavirus. Would that be acceptable under the Constitution?
Despite acknowledging in its order that the pandemic is global and there is no respite in sight, the Supreme Court has intervened without comprehending that a more disastrous situation prevails in the West, yet no other court of law in the world has stepped forward to provide its expertise to tackle the pandemic.
Maybe Chief Justice John Roberts of the US Supreme Court should take a leaf out of our book. After all, the death toll is much higher in the USA, with the Trump Administration seemingly unable to control the spread of the virus. A few orders and observations from the bench there might do the trick.
While governments around the world huddle together to work out a solution to the deadly disease, our government remains busy preparing reports to satisfy the Supreme Court, which sits on a high pedestal of law and higher than that, of morality.
