January 8th, 2021
The Supreme Court on Thursday reserved judgment on a review petition filed by three mentally-ill death row convicts against the court’s 2015 verdict upholding their sentence.
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.
A five-member bench, headed by Justice Manzoor Ahmad Malik, in Islamabad was hearing the clubbed petitions of Kanizan Bibi, Imdad Ali and Ghulam Abbas who have respectively spent 30, 18 and 14 years on death row while exhibiting acute symptoms of mental illness. The Punjab government and the three death row convicts are seeking review of the October 19, 2015 judgement of the Supreme Court in which it was held that the trial court as well as the high court have rightly convicted and sentenced the appellant and that the apex court did not find any reason or mitigating circumstances to reduce the quantum of the sentence of the appellants.
The Supreme Court resumed hearing the case in September 2020 after nearly two years. Justice Mansoor Ali Shah, Justice Ijaz Ul Ahsan, Justice Sardar Tariq Masood, and Justice Mazhar Alam Miankhel are the other members on the bench. The court reserved the judgment on the conclusion of arguments after holding daily hearings this week. The amici curiae and advocate generals have stated that mentally ill inmates should not be executed.
The most recent medical board constituted by the apex court to examine the mental health of the prisoners had declared that both Kanizan Bibi and Ghulam Abbas suffer from schizophrenia. Imdad Ali’s previous medical evaluations confirm the same for him.
Consensus against execution of mentally-ill convicts
The Advocate Generals of all provinces along with the Additional Attorney General of Pakistan categorically told the bench on Thursday that mentally ill persons should not be handed the death penalty, and in the event that they are, should not be executed. The Khyber Pakhtunkhwa Advocate General stressed on the fact that Islamic scholars have held that executing a mentally ill person would be unIslamic.
The Advocate General Punjab presented the bench with the proposed amendments for the Punjab Prison Rules, which includes a revised chapter specifically on mental health of prisoners. Appreciating the provincial government’s initiative, the bench acknowledged the document and said it would be useful in the final judgment.
Amici curiae Professor Dr Mowadat Hussain Rana and Barrister Haider Rasul Mirza also assisted the court with their medical and legal expertise. In his comments, Dr Rana told the court that when the brain fails, the body has no other organ to turn to, as a result of which a mentally ill person is not aware of their incapacity. He also regretted the erstwhile Lunacy Act of 1912, saying it was only in the Mental Health Ordinance of 2001 that the word ‘lunacy’ was done away with. “Mentally ill patients are often victims of violence than perpetrators,” he said, dispelling a common myth.
During earlier hearings this week, Barrister Mirza spoke at length about the use of the death penalty post-conviction, citing international jurisprudence on why it should not be used on mentally ill individuals, adding that it was considered inhumane to execute such a person. “A mentally ill person has no comprehension of the death penalty. Retributive justice depends upon the person’s rational understanding of the reason for his execution,” he said.
The amici curiae both contended that mentally ill prisoners should not be executed and instead shifted to a psychiatric facility where they can be treated with psychotropic medications and psychological interventions. They also recommended establishing forensic medical facilities at the provincial level for rehabilitation of mentally ill prisoners.
Ali Haider Habib, JPP spokesperson, said the criminal justice system should be based on rehabilitation, not elimination. The International Covenant on Political and Civil Rights (ICCPR) and international law categorically prohibit sentencing a mentally ill convict to death and executing a prisoner with mental illness, he said. Since 2014, Pakistan has executed over 500 individuals including those with mental illness. “The 100th man to be executed, one Munir Hussain, was so severely mentally ill that, according to his family, he had no recollection of his arrest or of his family members prior to his execution,” Habib said.