ISLAMABAD: In a landmark ruling, the Supreme Court (SC) on Wednesday commuted the execution of two prisoners, who have spent decades on death row, with mental disability to a life sentence.
A five-judge bench, headed by Justice Manzoor Ahmad Malik, announced its verdict reserved in January after daily hearings on three appeals pertaining to as many mentally ill prisoners on death row.
One of the two prisoners, Kanizan Bibi, has spent 30 years on death row. She was 16 when she was charged with murdering her employer’s wife and five children. The police said that she was having an affair with her employer, who was also arrested and later hanged. She was diagnosed with schizophrenia in 2000.
The second prisoner on death row whose sentence was commuted, Imad Ali, 55, was convicted of murdering a religious scholar in 2001. He was diagnosed with schizophrenia in 2008. In 2016, the apex court halted his execution, days before he was to be hanged.
The bench also directed prison officials to move Ghulam Abbas, another death-row prisoner with mental disabilities, to the Punjab Institute of Mental Health (PIMH) in Lahore “in accordance with provisions of Prison Rules for his treatment and rehabilitation” until the disposal of a mercy petition he had filed.
Hearings in the case were resumed in September 2020 after a gap of nearly two years.
Pakistan in 2008 ratified an international convention that prohibits the execution of mentally ill prisoners. Since then, only one mentally ill prisoner was executed, Muneer Hussain. He was hanged in April 2015 despite having had a history of mental illnesses, according to Justice Project Pakistan, a rights group that has fought an extensive, years-long legal battle for the two inmates.
Last year, with the outbreak of the coronavirus and the steep rise in Covid-19 cases in the country’s crowded jails, the Supreme Court agreed to release some mentally ill and disabled prisoners to ease conditions, but only those whose sentences were less than three years.
Responding to the development through a statement, Sarah Bilal, the head of JPP, called the court’s verdict a “landmark judgment.”
The ruling, she said, brought the country in line with its “international obligations and treaties the country had signed, including the International Covenant on Civil and Political Rights, the Convention against Torture, and the Convention on the Rights of Persons with Disabilities”.
The verdict also directed authorities to amend the Prison Rules to bring the jail manuals of all the provinces in harmony and directed the federal and provincial governments to establish high security forensic mental health facilities at teaching and training mental health institutions.
“The federal government [for Islamabad] and each provincial government, shall immediately constitute and notify a medical board comprising of three qualified and experienced psychiatrists and two psychologists from public sector hospitals for examination and evaluation of the condemned prisoners who are on death row and are suffering from mental illness to ensure that such mentally ill condemned prisoners […] are not executed,” the judgement read.
The federal and provincial governments were also directed to launch training programmes and short certificate courses on forensic mental health assessment for psychiatrists, clinical psychologists, social workers, police, and prison personnel.
“The Federal Judicial Academy in 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 judgement added.
The court also clarified that not every mental illness shall automatically qualify for an exemption from carrying out the death sentence.
“This exemption will be applicable only in that case where a medical board, consisting of mental health professionals, certifies after a thorough examination and evaluation that the condemned prisoner no longer has higher mental functions to appreciate the rationale behind the sentence of death awarded to them.”
The verdict observed that the terms “mental illness” or “mental disorder” are both used to refer to mental ailments and are defined by medical science.
“It is with the developing nature of medical science that [the] scope of these terms may also evolve. Therefore, we are of the view that a limited definition of the terms ‘mental disorder’ or ‘mental illness’ should be avoided, and the provincial legislatures may […] consider to appropriately amend the relevant provisions of mental health laws to cater for medically recognised mental and behavioral disorders as notified by the World Health Organisation.”
The court also noted the use of “stigmatic labels” such as “unsound mind”, “lunatic” and “insane”.
“Latest legislations all over the world do not use such terms. Therefore, we consider it appropriate to direct that the terms ‘unsoundness of mind’ and ‘unsound mind’ occurring in [the] Pakistan Penal Code, the Criminal Code of Procedure, and the Prison Rules be substituted with [the] term ‘mental disorder’ or ‘mental illness’.”
“The term ‘lunatic’ wherever it occurs shall also be substituted appropriately.”
Each and every prisoner on death row has claimed to be mentally ill. Its the safest bet.