SC commutes death sentence of mentally ill prisoners, sets guidelines for reforms

The Supreme Court on Wednesday passed a landmark verdict on the cases of mentally ill prisoners on death row, commuting the sentences of two inmates with severe schizophrenia, while directing prison officials to file a fresh mercy petition for the third. The court has also set guidelines for federal and provincial authorities to establish mental health facilities and amend prison rules among other recommendations.

“The mental health of a person is as important and significant as his physical health. Unfortunately, it is often not given the importance and seriousness it deserves. Because of certain misconceptions, the implications of mental illness are overlooked and the vulnerability or disability that it causes is not given due attention,” stated Justice Manzoor Ahmad Malik in his opening remarks for the judgment by a five-member larger bench.

The bench, comprising Justice Manzoor Ahmad Malik, Justice Sardar Tariq Masood, Justice Ijaz Ul Ahsan, Justice Mazhar Alam Miankhel and Justice Syed Mansoor Ali Shah, announced the verdict while hearing the clubbed cases of Kanizan Bibi, Imdad Ali, and Ghulam Abbas who all suffer from schizophrenia and have respectively spent 30, 19 and 15 years on death row.

The apex court declared that death row prisoners should not be executed, if they are found to be suffering from mental illness and thus, unable to comprehend the rationale behind their execution.  Setting parameters for future cases, the Federal Government and each Provincial Government have been directed to constitute a medical board consisting of three qualified psychiatrists and two psychologists to determine the mental health of such condemned prisoners and evaluate if they qualify for an exemption to the death penalty.

Excerpt from the judgment:

“66. After considering the material discussed herein above, we hold 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.”

The bench further directed that the terms “unsoundness of mind” and “lunatic” be replaced wherever they occur in the Pakistan Penal Code (PPC), Code of Criminal Procedure (CrPC) and the Prison Rules, with sensitised and updated language such as “mental illness” or “mental disorder.”

“This 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,” said Sarah Belal, Executive Director of Justice Project Pakistan. “We’d like to dedicate this judgement that will reset the legal foundations upon which prisoners with mental illness are dealt with in the criminal justice system to two individuals who are sadly no longer with us but remain in our hearts: eminent psychiatrist and professor Dr Malik Hussain Mubbashir and one of our first clients, Khizar Hayat, who passed away after spending 16 years on death row.”

“Those who believe that the death penalty works as a form of retributive justice must understand that no justice can take place when executing a person who does not understand the gravity of their situation,” said Ali Haider Habib, spokesperson for Justice Project Pakistan. “For Pakistan’s highest court to formalise this concept, set a historic precedent, and remove the government from involvement in these travesties of justice is a most important step.”