Pre-trial detentions undermine the chances of free trial
On October 1, 2017, our prisons had 84,287 inmates in 112 prisons administered by provinces/Administrative Territories (ATs), while the authorized capacity was 53,744, a figure clearly showing that how our prisons are over-burdened. Moreover, 66 percent of the total number of inmates in Pakistani prisons were still undergoing trial and are considered as pre-trial detainees. This indicates serious problems in our criminal justice system causing delays in the dispensation of cases and, resultantly, creating a burden on the prison population and national exchequer.
Shortcomings of the criminal justice system, especially with regard to the processing and adjudication of cases, which is leading to high prevalence of under-trial detention, need to be analyzed. The people held in pre-trial detention are legally presumed innocent until proven guilty. There is always a danger associated with their detention as they may be held in conditions that are worse than those of convicted prisoners – and sometimes for years on end.
We can also count many problems associated with pre-trial detention. Some prisons are dirty and unhealthy, and prisoners have little or no privacy, access to fresh air, exercise, adequate sanitation facilities, healthcare or sufficient food. Diseases could spread easily in such conditions and the chances of catching TB, hepatitis C and HIV/AIDS are much increased by detention in these conditions.
Pre-trial detention undermines the chance of a fair trial and the rule of law in a number of ways. The majority of people in Pakistan who come into contact with criminal law know little about their rights. Our countrydoes not have an adequate legal aid system, and many people cannot afford to pay for a lawyer. Even when they can, it is much harder to prepare well for a trial in a prison cell.People in pre-trial detention are particularly likely to suffer violence and abuse at the hands of officials, as well as the risk of violence from guards and fellow prisoners, police sometimes use illegal force or torture to gain a statement or confession.
Without the protection of legal assistance, and isolated from their family and friends, it is not easy to withstand such pressure. High rates of pre-trial detention are also contributing to widespread prison overcrowding, exacerbating poor prison conditions and heightening the risk of torture and ill-treatment meted out to detainees.
Even if a person is acquitted and released, they may still have lost their respect, home and job. They face the stigma of having been in prison when they return to the community.Because of its severe and often irreversible negative effects, international law states that pre-trial detention should be the exception rather than the rule and that if there is a risk, for example, of a person absconding, then the least intrusive measures possible should be applied.
A range of non-custodial measures are available, including bail, confiscation of travel documents, reporting to police or other authorities, and submitting to electronic monitoring or curfews. Not only are such alternatives less expensive, but savings made could be better invested in creating a just and effective criminal justice system, with more thorough investigations, more judges, quicker procedures, and improved prison conditions. However, the pre-trial detention continues to be imposed systematically on those suspected of a criminal offence without considering whether or not it is necessary, proportionate, or whether less intrusive measures could be applied.
Without legal assistance, the chance of getting a fair trial is severely diminished in a country like Pakistan where people cannot afford to bear the burden of a costly criminal justice system. Due to unnecessary delays, time passes, witnesses disappear, and evidence goes stale. The pressure to plead guilty increases as people want to end the uncertainty and bring the case to a conclusion. Furthermore, the pre-trial detention is expensive both for the system and the families, compared with non-custodial alternatives, if we are interested to consider the economic cost the country is facing to detain people in custody in the pre-trial phase.
Pre-trial detention should only be applied for the shortest possible time and suspects would be allowed a trial ‘within a reasonable time’.A key set of international standards, the UN Standard Minimum Rules for Non-custodial Measures (the ‘Tokyo Rules’) also encourage criminal justice systems to provide a wide range of non-custodial measures to avoid unnecessary use of imprisonment.
The overuse of pre-trial detention must be monitored closely, because, it not only undermines the chance of a fair trial, but the presumption of innocence is also challenged in many cases. Our criminal justice system has to develop and promote alternatives to pre-trial detention and provide access to legal representation and adequate legal aid systems to people facing trials.