The Mind of the Matter

A Supreme Court ruling notwithstanding, many mentally challenged

individuals languish in prison

Individuals suffering from mental illness are among the most vulnerable groups of any society. In Pakistan, this group reportedly constitutes 50 million people.

Barriers to obtaining treatment and support for mental illness in Pakistan are extremely high, given that only a meagre 0.4% of the federal healthcare expenditure is allocated to mental health.This vulnerability is exacerbated if mentally challenged individuals enter the Pakistani criminal justice system, which their mental and psychosocial disabilities often render them prone to, given the lack of understanding of such illnesses. The system thus fails to provide them protection before and at all stages of arrest, trial, sentencing and detention.

There are currently 4,225 prisoners on death row in Pakistan, with more than 600 mentally ill prisoners incarcerated in the country’s overcrowded prisons, reveals a report prepared by Justice Project Pakistan (JPP), a charity that provides prisoners legal aid.

As per the report, Pakistan, with around 18,300 individuals on death row, has the largest reported death row population in the world — comprising nearly 26% of the world’s recorded death row inmates. The reason: Pakistan has, in violation of its constitution, instituted an undeclared moratorium on the death penalty for the last two years, under pressure from the European Union. According to the Justice Project, of the death row prisoners in Pakistan, around 4,688 allegedly include juvenile offenders, women, and mentally ill people.

In 2008, Pakistan ratified the international Convention on the Rights of Persons with Disabilities, prohibiting the execution of mentally ill prisoners. Under Pakistani law, a person of unsound mind is incapable of criminal intent. However, due to the prevalent corruption in our investigation and prosecution system, many criminals, abetted by lawyers, misuse it. But since then, only one allegedly mentally ill prisoner has been executed, that in 2015, claims the Justice Project Pakistani.

One of the two inmates whose death sentence was commuted on February 10, 2022, has spent 30 years on death row, despite being diagnosed with schizophrenia in 2000. Kanizan Bibi was 16 when she was charged with murdering her employer’s wife and five children. The police said she was having an affair with her employer, who was arrested and hanged.

The second prisoner on death row who had his sentence commuted was convicted of murdering a religious scholar in 2001. Imad Ali was diagnosed with schizophrenia in 2008. The Supreme Court halted these executions by ruling 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 out the death sentence will not meet the ends of justice,” the Supreme Court ruled.

In its February 10 ruling, the Supreme Court also ordered prison officials to file a new mercy petition for a third prisoner, who has spent more than 15 years on death row. President Arif Alvi has the authority to pardon Ghulam Abbas.

The Justice Project says 515 people have been executed since Pakistan lifted a six-year moratorium on the death penalty after militants killed more than 150 people at a school in the northwestern city of Peshawar in December 2014.

Many inmates have serious pre-existing mental illnesses when they are put in prison. Many remain undiagnosed, are unable to adequately, or often even marginally, participate in their own defence, and are sentenced as trial courts remain unaware of the legal frameworks that exist to protect them. Their condition is thus, sometimes seriously, exacerbated by long periods of imprisonment and the stresses of the prison experience. The lack of adequate mental healthcare in prisons, beginning with the starting assumption that prisoners feign insanity for special treatment, is compounded by the judicial officers’ inadequate training in dealing with mental health issues, and often leads to needless suffering for prisoners who are mentally ill. They languish for years in prison and do not benefit from any safeguards contained in the law.

But efforts made by individuals and different groups resulted in Pakistan’s top court commuting the death sentences of two mentally ill prisoners who have spent decades on death row, and the judges also asked the authorities to make amendments in the relevant laws and regulations, and said exemptions from death sentences should be subject to certification by a medical board.

Ali Haider Habib, a spokesman for the Justice Project Pakistan hoped the Supreme Court ruling would “set a precedent for all courts while sentencing mentally ill prisoners.” A person’s psychological state is of major significance relevant to their sentencing — a fact which has been acknowledged in Pakistan’s jurisprudence, but it is often exploited by others who have no medical condition and are accused of assorted crimes.

In the case of Safia Bano, the Supreme Court laid down the procedure for arrest, investigation, trial and sentencing, in order to ensure that she, and other accused individuals are guaranteed due process. It also barred the execution of individuals who are mentally ill. This was the first time that the Supreme Court of Pakistan had examined the issue of mentally ill defendants on death row in Pakistan in such detail. The Court also recommended a change in the language related to mentally ill persons.

The JJP’s lead advocate, Sara Bilal believes that the Safia Bano judgment will serve as a mirror before which Pakistan’s legal framework and its systemic flaws will be held, in order to better understand the impact of the reforms introduced by the judgment and highlight the progress being made to better protect mentally ill defendants and convicts. It will help identify the issues they face during incarceration. The majority of the prison staff who supervise prisoners with mental illnesses on a daily basis also need training to identify and handle such persons, she added. The promotion, protection and restoration of mental health in prisons is critically important for prisoner rehabilitation and their reintegration into the community.

Pakistan is a signatory to numerous international treaties which require legal protection for vulnerable criminal defendants such as mentally ill prisoners, including the International Covenant on Civil and Political Rights (“ICCPR”). The ICCPR, which Pakistan ratified in 2010, urges states that have not yet abolished the death penalty to not impose it “on a person suffering from any mental or intellectual disabilities or to execute any such person.”

Islamic Laws also recognise that a person with a mental illness could not have have the criminal intent to commit crimes. According to Imam Abu Hanifa, a permanently ‘insane’ person should not be punished if he/she is awarded qisas punishment, or if they develop insanity after the announcement of the sentence, before his or her commitment to the victim’s heir.

And expert on criminal law, senior lawyer Burhand Moazzam Malik said the criminal Procedural Code provides safeguards for an accused who suffers from mental illness at the time of trial under Chapter 34. The relevance of these protections has been reinforced by the Supreme Court which has reiterated that this chapter must be complied with by the courts. Where a magistrate has reason to believe that a person is of unsound mind, or a person before the Court of Sessions or the High Court appears to be of unsound mind and is thus, incapable of making a sound defence during an inquiry or a trial, the magistrate or court must inquire into this unsoundness of mind, explained Malik.

The first compliance report by the federal ombudsperson submitted before the Supreme Court in 2018 revealed that Pakistan’s death row population stood at 4,668. This indicated a drop of 2,476 prisoners.

Despite this reduction in the official number of condemned prisoners, Pakistan continues to add prisoners to death row — at an average of almost one death sentence per day since 2004. In the last 14 years, Pakistan has sentenced 4,500 people to death and executed 821 people.

The greatest decrease in the death row population seems to have taken place in Punjab, falling from 6,604 to 3,890. Other provinces have seen their death row population increase at a consistent rate, from 560 to 798, congruent with their respective sentencing and execution ratios.

But despite this unprecedented reduction, Punjab still accounts for 81% of the over 500 executions that have taken place, and 89% of the 1,235 death sentences awarded countrywide since the moratorium was lifted in December 2014. It now accounts for 83% of the total number of prisoners on death row.

There also seems to be a disconnect between the sentencing courts and the appellate courts. While deciding 546 appeals, a special Supreme Court bench in 2014 acquitted or commuted sentences of death row prisoners in 467 appeals – a rate of 85% – on the basis of wrongful convictions underlining the flaws in the investigation and prosecution system which allows criminals get off scot free.