(Mar. 3, 2021) On February 10, 2021, a five-member bench of the Supreme Court of Pakistan in a landmark judgment barred the use of the death penalty for inmates with serious mental illness or disorders who are “unable to comprehend the rationale behind their execution.”
Background
The apex court was hearing three appeals from prisoners on death row—Kanizan Bibi, Imdad Ali, and Ghulam Abbas—who are suffering from schizophrenia. Kanizan Bibi was sentenced to death in 1991 for the crime of murder by a sessions court, and several of her appeals and petitions were dismissed by the president of Pakistan, the Lahore High Court and the Supreme Court. On December 2, 2010, the Supreme Court rejected an appeal of the Lahore High Court’s dismissal of her petition to convert her death sentence to life imprisonment on the grounds of mental ailment, but subsequently “her execution was stayed for three weeks by the President of Pakistan and she was referred to Punjab Institute of Mental Health (PIMH), where she was found to be suffering from schizophrenia.” The current appeal arose after the chief justice received a report submitted by the superintendent of the Central Jail, Lahore and “took suo motu notice” of her case. Her appeal was conjoined with the appeals of Imdad Ali and Ghulam Abbas. Ali, who was sentenced to death for committing murder in 2002, has been on death row for 18 years. Ali’s previous appeals and petitions, including a petition to examine his mental health condition, were also rejected by the president of Pakistan, the Lahore High Court, and the Supreme Court. The current petitions, filed by his wife and the inspector general of prisons of the province of Punjab, include a call for a review of a 2016 judgment of the Supreme Court denying a delay in carrying out the death sentence imposed on Ali. In its decision, the court commuted the sentences of Kanizan and Imdad, while directing the prison officials to file a fresh mercy petition for Ghulam Abbas, to be taken up by the president of Pakistan, because there was “nothing on record to show whether the ground of mental illness was taken into consideration while dismissing [the previous mercy petition].” Both Kanizan and Imdad are to be moved to a “government-run mental health facility.”
A 2019 Amnesty International report cites a report submitted by the Federal Ombudsman of Pakistan to the Supreme Court which states that 4,225 people were under sentence of death in the country as of July 2019. The government had imposed a moratorium on the death penalty from 2008 to 2014. According to Reuters, “[s]ome 518 people have been executed in Pakistan since 2014 when the government lifted [the] moratorium on capital punishment.”
Holding and Recommendations of the Court
The court held 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.”(Judgment ¶ 66.) However, the court also added that not every mental illness would automatically qualify for an exemption from carrying out the sentence. According to the court,
[t]his 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 the higher mental functions to appreciate the rationale and reasons behind the sentence of death awarded to him/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 comprising of qualified Psychiatrists and Psychologists from public sector hospitals.
In paragraph 87 of the judgment, the court also laid out a set of recommendations and directives for reform that included establishing a “High Security Forensic Mental Health Facilities in teaching and training institutions of mental health for assessment, [and] treatment and rehabilitation of under trial prisoners and convicts who have developed mental ailments during their incarceration.” In the same paragraph, the court also directed the federal and provincial governments to immediately constitute medical boards “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 who no longer have the higher mental functions to appreciate the rationale and reasons behind the sentence of death awarded to them are not executed.”
In paragraph 37, the court also recognized the need to avoid using “stigmatic labels such as ‘unsound mind,’ ‘lunatic,’ and ‘insane’” in laws and rules, and directed that such terms occurring in the Pakistan Penal Code, the Criminal Procedure Code, and the Prison Rules should be replaced by the terms “mental disorder” or “mental illness.” One of the directives was to amend the relevant laws and rules in the light of observations given in the judgment.
Reactions to the Decision
The Human Rights Commission of Pakistan and other organizations in a joint statement praised the court’s decision to protect severely mentally ill people in the criminal justice system from receiving capital punishment, asserting that “[t]his historic judgment will benefit many people, having a significant impact on marginalised communities who suffer at the hands of a criminal justice system with few protections in place for the vulnerable.” Sarah Belal, executive director of Justice Project Pakistan, also said in a statement that “[t]his is a historic judgment that validates our decade-long struggle to get the courts to recognise 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.”
Al Jazeera reported Amnesty South Asia Campaigner Rimmel Mohydin’s statement that “[t]his historic precedent puts a stop to the execution of other prisoners with similar conditions, many of whom have yet to be diagnosed. However, ultimately the death penalty itself must be abolished, and we urge Pakistan to re-establish an official moratorium on all executions as a first step in that direction.” U.N. human rights experts also welcomed the decision and called for the government “to build on the Supreme Court’s crucial decision and to revisit the death penalty more generally . . . [and] ensure that the death penalty is never carried out against individuals who were children at the time of the offence[;] that, in other situations, it is strictly limited to cases involving intentional killing, in line with international standards[;] and that under no circumstances should it be applied to allegations of blasphemy.”