“The mental health of a person is as important and significant as his physical health. Unfortunately, it is often not given the importance and seriousness it deserves. Because of certain misconceptions, the implications of mental illness are overlooked and the vulnerability or disability that it causes is not given due attention,” stated Justice Manzoor Ahmad Malik in his opening remarks for the judgment by a five-member larger bench.
The bench, comprising Justice Manzoor Ahmad Malik, Justice Sardar Tariq Masood, Justice Ijaz Ul Ahsan, Justice Mazhar Alam Miankhel and Justice Syed Mansoor Ali Shah, announced the verdict while hearing the clubbed cases of Kanizan Bibi, Imdad Ali, and Ghulam Abbas who all suffer from schizophrenia and have respectively spent 30, 19 and 15 years on death row.
The apex court declared that death row prisoners should not be executed, if they are found to be suffering from mental illness and thus, unable to comprehend the rationale behind their execution. Setting parameters for future cases, the federal government and provincial governments have been directed to constitute a medical board consisting of three qualified psychiatrists and two psychologists to determine the mental health of such condemned prisoners and evaluate if they qualify for an exemption to the death penalty.
An excerpt from the judgement states, “After considering the material discussed herein above, we hold that if a condemned prisoner, due to mental illness, is found to be unable to comprehend the rationale and reason behind his/her punishment, then carrying out the death sentence will not meet the ends of justice.”
The bench further directed that the terms “unsoundness of mind” and “lunatic” be replaced wherever they occur in the Pakistan Penal Code (PPC), Code of Criminal Procedure (CrPC) and the Prison Rules, with sensitized and updated language such as “mental illness” or “mental disorder.”
“This is a historic judgment that validates our decade-long struggle to get the courts to recognize mental illness as a mitigating circumstance against the imposition of the death penalty. We are grateful to all the honourable judges on the bench for affirming the rights of the most vulnerable prisoners through explicit recognition of domestic safeguards and international human rights principles,” said Sarah Belal, Executive Director of Justice Project Pakistan. “We’d like to dedicate this judgement that will reset the legal foundations upon which prisoners with mental illness are dealt with in the criminal justice system to two individuals who are sadly no longer with us but remain in our hearts: eminent psychiatrist and professor Dr Malik Hussain Mubbashir and one of our first clients, Khizar Hayat, who passed away after spending 16 years on death row.”
The bench directed that the terms “unsoundness of mind” and “lunatic” be replaced wherever they occur in the Pakistan Penal Code, Code of Criminal Procedure and the Prison Rules, with sensitized and updated language
“Those who believe that the death penalty works as a form of retributive justice must understand that no justice can take place when executing a person who does not understand the gravity of their situation,” said Ali Haider Habib, spokesperson for Justice Project Pakistan. “For Pakistan’s highest court to formalize this concept, set a historic precedent, and remove the government from involvement in these travesties of justice is a most important step.”
The Supreme Court has directed the federal government and provincial governments to immediately make necessary amendments to relevant laws and rules. It has also called for Prison Rules to be appropriately amended. The federal and provincial governments have also been directed to establish high security forensic mental health facilities in teaching and training institutions of mental health. They have also been directed to immediately constitute a medical board, comprising of qualified psychiatrists and psychologists, for examination of mentally ill prisoners on death row. The government has also been directed to immediately constitute a medical board, comprising of qualified psychiatrists and psychologists, for examination and rehabilitation of mentally ill prisoners (under trial or convicted) referred by trial courts or jail authorities. The government has been directed to launch training programs and courses on forensic mental health assessment. The federal judicial academy and provincial academies have also been asked to arrange courses for trial court judges, prosecutors, lawyers and court staff on mental illness.
Background of mentally ill prisoners on death row
Kanizan Bibi, a middle-aged woman diagnosed with paranoid schizophrenia, was sentenced to death in 1991. According to her family, she was arrested when she was just 16 years old, tortured, and then forced into confessing her involvement in murder. Kanizan has not spoken a word in nine years due to the trauma she has endured. Despite several attempts to permanently relocate her to a psychiatric facility, she is currently incarcerated at Kot Lakhpat Jail, Lahore.
Imdad Ali also suffers from paranoid schizophrenia. His medical evaluations in September and October 2016 found him to be actively suffering from psychotic symptoms while a prison psychiatrist deemed him “a treatment-resistant case”. Sentenced to death in 2002 over a shooting, Imdad has spent nearly 20 years on death row, with four years in solitary confinement in the jail hospital. His condition has continued to worsen.
Ghulam Abbas, who has spent almost 15 years on death row, exhibits strong evidence of epilepsy, schizophrenia including symptoms such as delusions and auditory hallucinations, as well as an intellectual disability. Arrested in 2006 for fatally stabbing a neighbor following a dispute over an unpaid electricity bill, Abbas has since been prescribed powerful anti-psychotic medication and requires urgent medical attention.