International human rights groups were long critical of the Pakistani judicial system when it came to cases of mentally ill suspects and prisoners. That was until last February, when a landmark judgment by the Supreme Court held that where a medical board confirms and certifies that the defendant is no longer able to appreciate the rationale behind the crime and their death sentence, he or she cannot be executed.
In their ruling, which was celebrated all over the world, a larger five-judge bench of the Supreme Court led by Justice Manzoor Ahmad Malik adjudicated three questions:
Firstly, how should the trial court deal with the plea of an accused that he/she was suffering from mental illness at the time of commiting the offence?
Secondly, how should the trial court deal with the claim that due to mental illness, an accused is incapable of making his/her defence?
And lastly, whether a mentally ill condemned prisoner should be executed? The judgment also opposed the execution of mentally-ill convicted persons.
The United Nations Human Rights office of the high commission welcomed the decision by the court of Pakistan and released a statement after the judgement that read, “We applaud the Supreme Court for recognising that executing such individuals ‘does not meet the ends of justice’.”
The apex court gave this ruling while hearing the cases of three mentally ill prisoners.
Imdad Ali committed the murder of Hafiz Muhammad Abdullah by firing shots with a rifle 222 bore on 21st January, 2001 in Burewala district of Punjab. Ali, who was 42 years old at the time, was sentenced to death the next year by a trial court. During the course of his 18-year imprisonment, he was repeatedly diagnosed with with paranoid schizophrenia, and several medical reports have confirmed over the years that he is suffering from psychotic symptoms actively and is “a treatment-resistant case.” He spent the last four years of his imprisonment in solitary confinement in the hospital cell of district jail, Vehari, owing to the nature of his mental illness.
When black warrants were issued for his execution on July 26, 2016, his wife Safia Bano filed a writ petition in the Lahore High Court Multan bench to delay her husband’s hanging till the recovery of his mental illness. That plea was rejected by the high court on August 23, 2016.
She then approached the apex court with the same plea. A three-member Supreme Court bench headed by then Chief Justice of Pakistan Justice Anwar Zaheer Jamali upheld the decision of the high court in a short order on September 27, 2016. The Supreme Court had ruled that a psychiatric disorder like schizophrenia does not subjugate the death sentence.
“In our opinion, rules relating to mental sickness are not subjugative to delay the execution of death sentence which has been awarded to the convict,” says the Supreme Court in its 11-page judgment four years ago.
Later, rights organisations and senior lawyers questioned that order. In a letter dated 26th September, 2016 United Nations Human Rights Commission said that if the sentence to execute Ali was carried out it would “represent a further departure by Pakistan from the world trend toward the abolition of the death penalty.”
In view of the heavy criticism of the ruling, the Punjab government filed a review petition against that judgment. Former chief justice of Pakistan Saqib Nisar formed a larger bench to hear a review petition against that decision.
Kanizan Bibi and Ghulam Abbas cases were also clubbed in with the Imdad Ali matter.
According to details, Kanizan Bibi began working for a wealthy, land-owning family when she was only 14 years old. Two years later, in 1989, Kanizan and her employer were arrested for killing the employer’s wife and five children. After her arrest, over a course of 15 days, the police hung her from thick ropes, mice were let loose in her shalwar and she also received electric shocks. Kanizan also was also badly injured and eventually transferred to a hospital for a few days. The police were eventually able to extract a confession from her however, she later retracted that confession before the high court on appeal. Her lawyers challenged that confession however, they were unsuccessful and after 18 months in detention during the trial, she was sentenced to death by a district court in 1991. Kanizan has always maintained her innocence and till date, Kanizan is Pakistan’s only woman prisoner scheduled to be executed. She suffers from severe schizophrenia and has spent more than 30 years in prison.
In 2000, her first execution warrant was issued but it was halted by the President of Pakistan. She was first shifted from Lahore Central Jail in Kot Lakhpat to Punjab Institute of Mental Health (PIMH) in 2006 and then again in 2018 and was constantly being treated for her mental illness. During the course of her incarceration, her medical condition deteriorated so much that she has not spoken a word in decades.
In a letter dated 3rd June 2020 by the United Nations High Commission to the Government of Pakistan, referred to Kanizan’s trial, where the prosecution narrative leaned into a narrative that painted Kanizan as a promiscuous woman who was having an affair with her employer and proposed that as the motive of the crime, as relying heavily on “gendered tropes in the prosecution’s narrative” and referred to the court’s conviction as having “overlooked key evidentiary gaps.”
Ghulam Abbas was arrested in September 2004 for fatally stabbing his neighbour over a dispute over the payment of the electricity bill in Rawalpindi. He was sentenced to death by a Sessions Court in May 2006. His subsequent High Court and Supreme Court appeals were dismissed in 2010 and 2016, respectively. In 2018, a SC review petition was also dismissed. Ghulam's mercy petition was eventually rejected by the Presidency on 22 April, 2019. His most recent medical evaluation, by a board constituted by the Supreme Court in September 2020, declared that Ghulam is suffering from schizophrenia.
In 2018, a larger SC bench ordered a medical evaluation of all three mentally ill prisoners.
Rights organisation Justice Project Pakistan (JPP) represented and litigated on behalf of all three prisoners and argued that they should not be eligible to be executed because of the severity of their mental illnesses.
Two years later, the larger bench resumed the hearing of the case in September last year, wherein a special medical board was reconstituted to evaluate their mental illness, which declared all three prisoners as severely mentally-ill.
After holding several hearings since September 2020, on 10th February, 2021, the Supreme Court of Pakistan commuted the death sentences of Kanizan and Imdad to life imprisonment and gave comprehensive guidelines in order to reinforce the rights of mentally ill defendants in the criminal justice system.
Regarding Ghulam Abbas case, the Supreme Court directed that a fresh mercy petition be filed on his behalf mentioning his plea of mental illness, along with copies of his entire medical history and record, copies of the report of Medical Board constituted by this Court on 21.09.2020 and a copy of this judgment, and be reconsidered in light of this judgment. The Court stated: “...we expect that the mercy petition filed on behalf of condemned prisoner Ghulam Abbas shall be disposed of after taking into consideration all the circumstances including the observations made by this Court in the instant judgment.”
In doing so, lawyers say that the court has judicially reviewed the entire mercy petitions review process and effectively delineated the minimum guidelines that must be followed in the consideration of mental illness as a ground for clemency.
According to JPP, the Supreme Court has established key safeguards for mentally ill defendants on death row. Likewise, the Supreme Court reiterated and upheld protections that must be afforded to persons with psychosocial disabilities at every stage in the criminal justice system; at the time of the arrest, during the investigation, trial and sentencing, in order to ensure that they are to guarantee due process. It has also “barred the execution of individuals who are severely mental ill,” said JPP in its report.
JPP in its report stated that the Supreme Court held that “if a condemned prisoner, due to mental illness, is found to be unable to comprehend the rationale and reason behind his or her punishment, then carrying out the death sentence will not meet the ends of justice.”
However, the court clarified that not every mental illness shall automatically qualify for an exemption from carrying out the death sentence; it will only be applicable where a medical board consisting of mental health professionals certifies after a thorough examination and evaluation that the condemned prisoner no longer has the higher mental functions to appreciate the rationale and reasons behind the sentence of the death awarded to him or her. To determine whether a condemned prisoner suffers from such a mental illness, the Federal Government (for Islamabad Capital Territory) and each provincial government shall constitute and notify, a medical board that is composed of qualified psychiatrists and psychologists from public sector hospitals.
The apex court has also directed that restrictive terms like ‘unsoundness of mind’ be replaced with internationally recognised definitions of mental illness and mental disorder. It opined that limited definition of the terms ‘mental disorder’ or ‘mental illness’ should be avoided, and the provincial legislatures may, in order to better appreciate the evolving nature of medical science, appropriately amend the relevant provisions of the mental health laws to cater to medically recognised mental and behavioral disorders as notified by World Health Organisation through its latest edition of International Classification of Disease.
The court also recognised that outdated terms such as ‘lunatic’ and ‘insane’ in the Code of Criminal Procedure, Prison Rules and the Pakistan Penal Code be replaced with terms that are more inclusive and sensitive.
The court held that where the accused raises any specific plea, permissible under the law, including a plea under section 84 of the Pakistan Penal Code, the onus to prove such a plea is on the accused. However, while proving such a plea, the accused may benefit from any material, oral or documentary, produced or relied upon by the prosecution.
JPP in its explainer stated that regarding the plea of the accused before or during trial, the court made the following observations:
i. Whenever the trial Court is put to notice, either by express claim made on behalf of the accused or through Court’s own observations, regarding the issue of incapability of an accused to understand the proceedings of trial and to make his or her defence, this shall be taken seriously while keeping in mind the importance of procedural fairness and due
process guaranteed under the Constitution and the law. To this end, the accused can lead the evidence and adduce evidence in his/her claim. Moreover the head of the Medical Board shall appear as a witness in Court can be cross examined by both the prosecution and the defence.
ii. While forming a prima facie tentative opinion, the Court may give due consideration to its own observations in relation to the conduct and demeanor of an accused person. Failure of the parties to raise such a claim, during trial, does not debar the Court from forming an opinion on its own regarding the capability of an accused person to face the proceedings of trial.
iii. A prima facie tentative opinion cannot be formed by the Court only on the basis of such questions posed to the accused. The Court is required to objectively consider all the material available before it, including the material placed/relied upon by the prosecution.
iv. Once the Court has formed a prima facie tentative opinion that the accused may be incapable of understanding the proceedings of trial or make his/her defence, it becomes obligatory upon the Court to conduct an inquiry to decide the issue of incapacity of the accused to face trial due to mental illness.
v. The Court must have the accused examined by a Medical Board, to be notified by the Provincial Government, that consists of qualified medical experts in the field of mental health. Such experts shall examine the accused and opine on whether the accused is capable or otherwise to understand the proceedings of trial and make his/her defence.
vi. The medical report or opinion must be detailed and structured with specific reference to psychopathology (if any) in the mental functions of consciousness, intellect, thinking, mood, emotions, perceptions, cognition, judgment and insight.
It has set precedent for the rights and protections afforded to mentally ill prisoners at arrest, investigation, trial, sentencing and clemency stage.
The court directed the Federal Government and all the Provincial Governments to immediately make necessary amendments in the relevant laws and the rules in the light of observations given in this judgment, and that the Prison Rules should be appropriately amended so as to bring the jail manuals of all the Provinces in harmony.
The Supreme Court has also directed the federal government and all the provincial governments to immediately establish and create high security forensic mental health facilities in the teaching and training institutions of mental health for assessment, treatment and rehabilitation of under trial prisoners and convicts who have developed mental ailments during their incarceration.
This is the first time that a direction has ever been passed to set up forensic facilities by a superior court. This is also in accordance with the Mental Health Ordinance, 2001, which requires such facilities to be set up as they are essential for the understanding of complex mental disorders.
The court also further directed the federal government and all the provincial governments to immediately launch training programs and short certificate courses on forensic mental health assessment for psychiatrists, clinical psychologists, social workers, police and prison personnel. Furthermore, the Federal Judicial Academy, Islamabad and all the Provincial Judicial Academies shall also arrange courses for trial Court judges, prosecutors, lawyers and court staff on mental illness including forensic mental health assessment.
The Supreme Court, through its better-late-than-never judgement, which only arrived after years of international pressure and at the cost of irredeemable time and unspeakable duress of Imtiaz Ali, Kanizan Bibi and Ghulam Abbas, will undoubtedly benefit the condemned prisoners on death row who suffer from psychosocial disabilities. Likeiwse, under-trial and convicted prisoners with mental illness will also benefit from this ruling.
However, the real challenge will be the implementation of all directions given by the apex court in its ruling. All federal and provincial authorities must comply the Supreme Court’s judgment with full letter and spirit, in order to see a change in the treatment of mentally ill prisoners by the justice system of Pakistan. Similarly, the Supreme Court may seek relevant authorities regarding the compliance of its ruling, which is being widely welcomed all over the world.
Executive Director JPP Barrister Sarah Belal says that that progressive and holistic judgement has provided much-needed clarity on the issue of the execution of mentally ill prisoners, highlighting existing safeguards and implementing new ones where most needed.
"It can be seen as a reset of the criminal justice system by its recognition of the evolving nature of mental health sciences, giving mental health experts the responsibility to assist the courts in diagnosing mentally ill defendants and by enacting mandatory capacity building trainings for key stakeholders within the system,” she said. “This is a new beginning impacting everyone involved in the criminal justice system, especially the mentally ill prisoners the judgement will benefit."
Since 2014, Pakistan executed over 500 individuals including those with mental illnesses. Munir Hussain, the 100th man to be executed, was severely mentally ill, according to his family, he had no recollection of his arrest or of his family members prior to his execution.