Wednesday July 06, 2022

Covid-19 and the right to health

April 09, 2020

The rapid spread of the Covid-19 pandemic has sent shockwaves through the world. Many governments are advising people to stay indoors and to practice social distancing, thus entirely altering social dynamics in the way we have known them.

Besides poverty, the massive overcrowding in Pakistan’s prisons is another urgent problem requiring immediate redressal. This situation in prisons is a ‘ticking time bomb’ situation. Prisoners in Pakistan have been neglected and their plight ignored for decades now.

As human beings in the custody of the state, deprived of liberty, prisoners too have fundamental human rights. These rights are inalienable and have been conferred upon them by our constitution, domestic laws, as well as international treaties. These rights include inter alia the right to life, the right to adequate medical attention/care during detention, the right to due process, etc.

Public health policies are meant to guarantee the best possible conditions for all members of the society, but prisoners are often forgotten in this equation, particularly in Pakistan.

Some of the major issues in our criminal justice system include: failure of the police to complete investigations within the time-period prescribed under the law; repeated adjournments of hearings scheduled; misapplication or non-application of bail provisions; and lack of access to free legal aid. All these factors exacerbate the problem of overcrowding.

Despite Section 498 of the Code of Criminal Procedure 1898, which states that “bail shall be fixed with due regard for the circumstances of the case and shall not be excessive”, most of the offenders are not able to submit the surety bond because they cannot afford it. They are not in prison because they pose a threat to society, they are there because they are too poor to afford bail.

Past epidemics should serve as useful lessons for us with respect to what not to do in dealing with this present epidemic. The epidemic of influenza which entered the jail in California through a prisoner who had come from a county jail in Los Angeles due to which a number of inmates were affected. The man himself had been sick before he entered, and had body aches accompanied by fever. On his entrance, he mingled with 1,900 men who were congregated in the yard; ate with them in the general mess; and was locked in a receiving room with about 20 other newcomers. He was admitted to the hospital, but the virus was spread to about one-half of the prison population in a few days.

How is Pakistan to curb the spread of Covid-19 with such overcrowded prisons, with prisoners being more vulnerable to the virus because of their limited access to basic hygiene facilities and the underlying health conditions faced by several hundred prisoners?

The transmission rate is going to be more with more people behind bars: logic dictates so. Due to this reason, three Chinese provinces had around 500 cases in prisons and Iran released 70,000 prisoners and Kenya released 4800 prisoners to decongest prisons over Covid-19 fears. Political prisoners should be among the first released in a pandemic response, says UN rights chief Michelle Bachelet.

In November 2019, a report of the federal ombudsman of Pakistan claimed that 77,275 inmates have been kept in 114 prisons with a maximum capacity of 57,742 inmates. Punjab with a total number of 42 jails has a capacity of 32,477 prisoners, but is overburdened with 47,077 prisoners. Sindh with 24 jails is overcrowded with 17,239 inmates with a capacity of 13,038. Khyber Pakhtunkhwa prisons are over-packed with 10,871 prisoners but have sanctioned space for 9,642 prisoners. Only Balochistan’s jails were reported to be more spacious with less inmates than the authorized capacity, but the Human Rights Commission of Pakistan reported the condition of Balochistan’s jails as being pathetic and deficient in key facilities.

According to the International Committee of the Red Cross, Pakistan’s prisons are holding up to 57 percent more prisoners than their authorized capacity with two-thirds of the total prison population still awaiting or undergoing trial.

Pakistan is a party to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) which safeguard a range of rights, extending of course to prisoners as well, specifically the right to life and the right to the highest attainable standard of physical and mental health. Article 10 of the ICCPR provides that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. Further, the right to “the highest attainable standard” of health is safeguarded in Article 12 of the ICESCR.

Reduction in the prison population is a way forward; it will improve the conditions in prison, and potentially have a positive impact on containment efforts of the state.

We have been instructed to practise social distancing, but the reality is that there are many thousands who cannot do so because they are detained in close quarters. Their situation is particularly alarming considering the absence of basic hygiene and sanitation facilities. If Covid-19 infects even one person in a prison, we are potentially dealing with a disaster we will be unable to mitigate.

The writer is a law student atQuaid-e-Azam University.