September 23rd, 2020
By Rehan Piracha
Civil rights activists have hailed the development of the Supreme Court ordering a fresh medical examination of two mentally-ill prisoners on death row saying that it is high time reforms are introduced to alleviate the plight of hundreds of mentally-ill prisoners languishing in the country’s jails.
According to a government report, there are 600 convicts with mental illnesses in different prisons in the country. Pakistan has one of the highest figures for death row convicts in the world. According to Justice Project Pakistan (JPP), there are currently 4,225 convicts on death row in the country while 514 people have been executed since December 2014. According to JPP’s Sarah Belal, under Pakistani law, a person of unsound mind is unable to form criminal intent and therefore is not subject to punishment. Despite this, a disproportionate number of mentally ill prisoners are currently in jails, even on death row, she said.
The Supreme Court has directed fresh medical examinations of two mentally-ill death row convicts Kanizan Bibi and Ghulam Abbas and asked the amicus curiae (friends of the court) to submit their expert opinions on mental illnesses in the light of national and international jurisprudence. Both death row inmates will be examined by a five-member medical board which will submit its report in three weeks.
A larger bench of the apex court, headed by Justice Manzoor Ahmad Malik, has been hearing a review petition by the Punjab government and three mentally-ill prisoners. The apex court will resume hearing of the case on October 19.
Soundness of Mind
The apex court has also sought the expert opinion of Mowadat Hussain Rana, a psychiatrist, and Advocate Haider Rasul Mirza in the context of Section 84 of the Pakistan Penal Code and Sections 464 and 465 of the Criminal Procedure Code (Cr.PC) at the next hearing. These sections refer to the soundness of the mind or the sanity of the accused before a court.
Dr. Rana will give his opinion to the court about different types of mental disorders and the accuracy of detecting mental illness after the trial. Mirza will explain about the interpretation of laws dealing with the soundness of mind of an accused or convict.
The petitioners have sought review of a judgment given by the Supreme Court on Oct 19, 2015. In the verdict, the Supreme Court had upheld the convicts’ sentences by the trial court and the high court. In its review petition, the Punjab government had pleaded that the apex court had ignored the mental condition of the convicts at the time of the judgment was announced. The two were suffering from schizophrenia the Punjab government contended.
According to the review petition, the Punjab government pleaded that the court judgment had limited the definition of “schizophrenia”, contrary to the universally accepted medical definition in terms of “mental disorder”, as envisaged by the Mental Health Ordinance, 2001. The provincial government also contended that Shariah prohibits the execution of a mentally challenged prisoner, a view, it said, had been endorsed by Islamic jurist Allama Ibne Abideen in his work, Radd-al-Mukhtarala al-Durr al-Mukhtar.
Reforms needed for ‘fair trial’
Pakistan has come under increasing international criticism over its treatment of mentally-ill prisoners as well as convicts on death row. The European Union’s GSP plus status for Pakistan is dependent on Islamabad’s commitment to upholding EU’s core values including the abolishment of capital punishment. Pakistan has ratified the International Covenant on Civil and Political Rights and the Convention against Torture (UNCAT). The convention prohibits the execution of mentally ill prisoners.
Lawyer Saroop Ijaz who is also the Country Director of Human Rights Watch (HRW), welcomed the Supreme Court’s decision to review its earlier decision and order a medical examination of the two death row convicts who have psychosocial disabilities, adding that the development should be used as an opportunity for introducing permanent reform.
“The arbitrariness, unfairness, and high risk of error in capital prosecutions in Pakistan has been documented extensively,” he said.
According to Saroop, the death penalty is inherently cruel – but even more so for those who may not recognize their crimes. “Pakistan should strengthen its justice system and work towards a fairer, quicker and more transparent justice system rather than executing people with disabilities,” he added.
Civil rights activists and organizations have pointed out that the trial procedure was fraught with flaws and omissions in the country. Kamran Arif, the council member of the Human Rights Commission of Pakistan (HRCP), says that a lot needed to be done to bring the country’s trial proceedings to the internationally accepted standards of ‘a fair trial’.
Arif said there was no psychological evaluation for the accused to determine if they were mentally-fit to stand trial. “The lack of a legal aid system makes it quite impossible for the accused in death row cases to find a competent counsel for his defense,” he said. “In addition to that the culture of torture to get forced confessions continued in the country. All the above reasons point out the fact that the trial system in the country is deeply flawed and it is making the case much stronger for ending capital punishment in Pakistan.”
Speaking about the mental illness of schizophrenia, Ayesha Naveed, a consultant psychiatrist at Gulab Devi Hospital, said It was a genetic disease that had to be managed for life with treatment consisting of medicines and therapy. “Whether schizophrenia can affect a person’s capacity for decision making would depend upon the clinical assessment,” she said. “In western countries, screening of prisoners and convicts are regularly conducted to detect any symptoms of mental illness in them. Besides their own assessment of a patient, a psychiatrist relies on information gleaned from family members, blood tests and MRIs to determine whether a person was suffering from mental illnesses or not.”
She adds that is rare if a clinician will not pick up a person faking mental illnesses, basing this on about 25 years of treating mentally-ill people.
“Scientifically psychiatrists don’t define human behavior into sane or insane. The broadest term in the context used was of normal and abnormal human behavior,” she said.
Who are Kanizan Bibi and Ghulam Abbas?
According to Jugnoo Kazmi of JPP, the petitions before the SC in connection to four death row prisoners – Imdad Ali, Kanizan Bibi, Ghulam Abbas, and Khizar Hayat – they were all suffering from prolonged mental illnesses.
Kanizan Bibi suffered from severe schizophrenia and had spent 30 years in prison. She was arrested in 1989 as a juvenile, according to information provided by JPP, and was sentenced to death in 1991 as an accomplice in the murder of six individuals. She had always maintained her innocence. In 2006, she was shifted from Lahore Central Jail (Kot Lakhpat) to Punjab Institute of Mental Health (PIMH) where she is being treated for her mental illness. During the course of her incarceration, her medical condition has deteriorated so much that she has not spoken a word in eight years.
Ghulam Abbas, 37, was arrested in September 2004 for fatally stabbing his neighbor over a dispute over the payment of the electricity bill in Haji Lal Din area of 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, an SC review petition was also dismissed.
Ghulam’s mercy petition was eventually rejected by the Presidency on 22 April 2019. According to his medical records, he has been receiving treatment for psychiatric problems by the jail for the past year and was prescribed Risperidone, a powerful antipsychotic drug.