COVID-19 seems to have become the most serious issue of our times. It creates a global health emergency and a worldwide economic crisis. It is redefining many aspects of human life and reshaping our world view. Hence, it is bound to impact justice systems as well as law is dynamic in nature and applies in a context. It evolves over time and responds to emerging situations.

Different countries are using the existing laws and policies progressively to provide health facilities and economic relief to the people. In countries like Italy and Spain, coercive measures have been adopted in the interest of public health and safety. The government of Pakistan is also trying its best to curtail the spread of COVID-19.

The judiciary has also responded to this challenge proactively. A Lahore High Court full bench sought a detailed report from the Punjab government about measures being taken to combat coronavirus pandemic and facilities being provided to patients in quarantines. The Islamabad High Court (the Court) has ordered prisoners’ release on bail due to viral outbreak and has passed a judgement that made an apparent choice between the prisoner’s health and public safety. Arguably, it chose the prisoner’s health over public safety. At the same time, it strikes a balance between public health and public safety. Relying on the declaration of World Health Organization and the National Action Plan, the Court has passed three types of orders/directions, which are summarised as under:

First, it granted bail to the Under-Trial Prisoners (UTPs) in the non-heinous category of offences which attract punishment of fewer than ten years (non-prohibitory clause offences). The order was based on the rationale that the jail housing these UTPs was overcrowded and most of UTPs were old age people. The Deputy Commissioner, Islamabad, was entrusted in this order to set the surety requirements. The order also authorized the release of UTPs whose bails had earlier been refused by the courts considering the outbreak of coronavirus a fresh ground of bail. The Court, however, specifically directed the Deputy Commissioner to ensure that “the release on bail will not pose a threat to public safety and before such release, proper screening is conducted”.

Secondly, the Court directed the Inspector General of Police and the Deputy Commissioner, Islamabad, to ensure that ‘unnecessary arrests’ are not made in under investigation cases; and

Thirdly, it directed the Deputy Commissioner, Islamabad, to exercise his powers to send UTPs on probation under Prison Rules [Pakistan Prison Rules, 1978], the Probation of Offenders Ordinance, 1960 read with Section 410(1) of the Code of Criminal Procedure, 1898.

The above directions by the Court are likely to benefit over one thousand prisoners in Adiala jail, Rawalpindi, where offenders of Islamabad are taken as there is no separate prison of Islamabad district. The order has been hailed by the media and the NGOs working in Pakistan for human rights. Reportedly, petitions have been filed in other High Courts to get UTPs released from overcrowded prisons.

The exercise of judicial power to provide relief to UTPs in such a panic situation is a step in the right direction. The choice made by the Court of preferring prisoner’s health over public safety in terms of public policy choices indicates the emergence of non-formalistic judicial approach in Pakistan. What distinguishes the formal from the non-formal judicial approach is a matter of thorough debate which may be left for another occasion.

Quoting Richard Posner’s observation about the formalistic judicial approach might be useful, nevertheless, to underline the difference between different judicial approaches. He had observed:

‘Legal thinking in the late nineteenth century in England and the United States was formalistic: law, like mathematics, was understood to be about the relations among concepts rather than about the relations between concepts and reality’.

Taking a clue from the above excerpt, one can state that the Court has tried to link the concept (law of bails) with the reality (prisoner’s health) in the context of the spread of coronavirus in Pakistan. This choice by the Court to release UTPs might have its critics, but in the instant situation, it was a non-formalistic use/interpretation of law and active exercise of judicial power.

The legal standard for the exercise of such judicial power may be placed between two opposing judicial approaches: The ‘fundamental values’ approach (non-formalistic approach) and the ‘clause-bound interpretivism’ (formalistic approach). These theoretical debates notwithstanding, the Court has interpreted the law liberally for the safety and health of UTPs and the public at large. It is hoped that the executive ensures that UTP’s are screened as per scientific SOPs before their release as public health must be prioritised.