Mohammad Jamil
TWO-judge panel headed by Chief Justice Islamabad High Court in an emergency hearing
on Saturday granted interim bail to Pakistan’s ailing former Prime Minister Nawaz Sharif on medical grounds, who had been in prison as a result of conviction in Al-Azizia case. Another two-judge panel of the same court will decide today (Tuesday) whether Sharif’s seven-year sentence on a corruption conviction should be suspended because of his health issues. During the course of the hearing, the Chief Justice remarked that the request for bail on medical grounds should not have been filed with the court to begin with, as the provincial government had the authority to decide on such a matter. Indeed, the law of land speaks in the favour of terminally ill and old convicts; and Section 401 of the Code of Criminal Procedure confers powers upon provincial governments to suspend or remit the sentences of such convicts.
Honourable IHC CJ Athar Minallah pointed out that the provincial government could have settled the issue, which has given hope to hundreds of terminally ill prisoners, particularly those belonging to poor segments of society. He rightly said that the provincial government could have settled the issue, which has given hope to hundreds of terminally ill prisoners particularly those belonging to poor segments of society. CJ Athar Minallah said that media often started the trial even before the court’s proceedings began. In most of the cases, analysts start discussing could-be verdict of the court. According to internationally recognized principles, only bare facts of a case should be reported; there should be no twist, slant, comment or interpretation to mislead the public. But, during the tenure of former Chief Justice Iftikhar Chaudhry, private TV channels used to install cameras in the court premises during proceedings of high profile cases.
During the hearing the IHC Chief Justice said that in case the government opposed the bail plea, the court will dismiss the petition for Nawaz’ bail. “During this time period (up to Tuesday), if anything happens to Nawaz Sharif then the government and the NAB, not the court, will be responsible,” remarked the court’s top judge. At least one of the panelists stated that there was no example of filing an affidavit for taking responsibility if the government objected to the release of the prisoners. According to the News International, “Attorney General of Pakistan (AGP) Anwar Mansoor on Saturday expressed disappointment over the handling of reference against former Prime Minister Nawaz Sharif whom the Islamabad High Court granted an interim bail on humanitarian grounds in Al-Azizia case”. He added that Prime Minister was informed only two hours before the proceedings, and his representative did appear in the court.
Last year, the then Chief Justice of Pakistan Mian Saqib Nisar had taken notice of terminally ill prisoners confined in all prisons of Pakistan in his visit to Central Prison, Karachi on 12 May 2018, where such prisoners remain confined. However, the ethos of punishment and retribution must leave a space for mercy, which is needed by certain types of convicts, especially old and terminally ill individuals. It doesn’t really make sense to keep such convicts incarcerated for an extended period. These people have been suffering from fatal diseases, which make it highly unlikely that they will repeat any criminal act or offence if they are released. According to a press statement released by the Supreme Court of Pakistan on 7 June 2018, there were 91 terminally-ill prisoners with life threatening diseases, who remained confined in prisons throughout Pakistan. One has not seen any relief to such prisoners so far.
Section 401 of the Code of Criminal Procedure reads that when any person has been sentenced to punishment of an offence, the government may at any time without any condition suspend the execution of their sentence or remit all or any part of the punishment to which the criminal has been sentenced. However, it must be noted that provincial governments shall have no power to remit offenders jailed for Karo Kari and other similar crimes. Similarly, Pakistan Prison Rules (PPR) confers powers upon provincial governments to release prisoners on the grounds of old age, infirmity or illness. According to PPR’s Rule 146, the government has the power to release prisoners on grounds of old age, infirmity or illness. However, many prisoners have completed their sentence, but they could not pay the amount of fine imposed on them. The government should arrange to pay the fine on behalf of poor prisoners.
In the US, as recently as on 12 August 2019, the Federal Bureau of Prisons (BOP) of the US published new guidelines on 12 August 2019 for the Compassionate Release/Reduction in sentence programme. The guidelines are contained in Programme Statement 5050.49 and set out the grounds for compassionate release, and set up a system for BOP staff to track requests from prisoners. Congress authorized compassionate release when a prisoner has “extraordinary and compelling” reasons for it. Terminal medical condition is defined terminal disease whereby the life expectancy is 18 months or fewer. According to guidelines, prisoner must be: i) completely disabled and totally confined to bed or chair; ii) Capable of only limited self-care and confined to bed or chair 50% or more during waking hours. In the light of judgment by IHC, the government should formulate fresh guidelines. And lower judiciary should periodically visit jails and decide the hardships cases on the spot.
—The writer is a senior journalist based in Lahore.
