E/CN.4/1997/7/Add.2
page 17
Prisons Act of 1894 (sects. 46 (7) and 56) and the Prison Rules
(Rules 643-655) are unconstitutional.
In the decision, the High Court
concluded:
"The manner in which the prisoners are kept in the Security/Bund Wards
with bar fetters on is humiliating and against the dignity of man. Loss
of one’s freedom and confinement is in itself a very severe punishment.
After locking up a man, to inflict further punishment is not only harsh
but inhuman and against the cherished human values." 2/
Accordingly, the High Court held the relevant provisions concerning fetters to
be "inconsistent and in violation of Article 14 of the Constitution as well as
against injunctions of Islam. As such they are declared as void and as of no
legal effect". Article 14 (l) of the Constitution of Pakistan provides: "The
dignity of man ... shall be inviolable." 3/
60.
In a similar decision, the Punjab High Court in Lahore, in November 1994,
asked the government of Punjab within six months to bring the prison rules in
Punjab regarding the use of fetters into conformity with constitutional
provisions. It held that the unbridled discretion of prison superintendents
to place fetters on prisoners was inconsistent with article 14 of the
Constitution. However, in contrast to the Sindh High Court, the Punjab High
Court did not call for the total abolition of the use of fetters, but argued
that the superintendent’s powers should be clearly circumscribed to bring the
rules into conformity with article 14. 4/
61.
On 31 March 1994, the Supreme Court of Pakistan admitted the appeal of
the Additional Advocate General of Sindh against the judgement of the Sindh
High Court prohibiting the use of bar fetters. At the same time it issued an
interim stay regarding the implementation of that judgement pending a decision
by the Supreme Court. In its appeal, the Sindh government argued that to
abolish the use of bar fetters would render the safe custody of dangerous
prisoners very difficult. To date, the Supreme Court has not begun hearing
the appeal. During meetings with the Attorney General of Pakistan and the
Chief Justice of the Supreme Court, the Special Rapporteur inquired whether a
date had been set for the hearing of the appeal to begin. Neither official
was able to provide the Special Rapporteur with a definitive date for the
hearing.
62.
Prior to the finalization of the current report, the Special Rapporteur
received photographs that appeared on 24 July 1996 in the respected daily
newspaper Dawn and two Sindhi language daily newspapers. Three photographs
show several detainees, blindfolded with their own shirts, in bar fetters,
cross fetters and link fetters in Hyderabad Central Jail. The article
accompanying the photographs reported on the overcrowded conditions in the
prison (2,635 prisoners were held in the prison despite a capacity for
only 1,527 prisoners) and noted that the use of chains, cross-bar fetters and
handcuffs prevents the detainees from sleeping or moving about in the cells.
The Inspector General of Prisons refuted the contents of the article, claiming
that the photographs were fake. Furthermore, the jail authorities lodged a
complaint against the photographer for public mischief, cheating and
dishonestly inducing delivery of property, and forging documents.
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