Concluding arguments after holding daily hearings this week, the Supreme Court of Pakistan on Thursday reserved its judgment on the case pertaining to three mentally ill prisoners on death row amid a consensus from the amici curiae and advocate generals that mentally ill inmates should not be executed. The Supreme Court resumed hearing the case in September 2020, after nearly two years.
A five-member bench headed by Justice Manzoor Ahmad Malik and comprising Justice Mansoor Ali Shah, Justice Ijaz Ul Ahsan, Justice Sardar Tariq Masood, and Justice Mazhar Alam Miankhel 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 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.
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 that Islamic scholars have held that executing a mentally ill person would be un-Islamic.
The Punjab advocate general 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 Advocate 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, Mirza spoke at length about the use of the death penalty post-conviction, citing international jurisprudence on why it should not be used on the mentally ill, and 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.”
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.
The Punjab advocate general presented the bench with the proposed amendments for the Punjab Prison Rules, which includes a revised chapter specifically on mental health of prisoners
The judgment has been reserved till the next hearing.
In a statement, Justice Project Pakistan’s spokesperson Ali Haider Habib said, “Our 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. 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.”
Overseas prisoners return
Last month, Special Assistant to the Prime Minister on Overseas Citizens and Human Resource Development Zulfikar Bukhari said the government had brought back 8,700 Pakistanis imprisoned abroad.
“I can assure you that our government will not forsake Pakistanis imprisoned abroad and we will work to bring back all destitute and vulnerable Pakistanis whether they have committed a crime or not,” Bukhari said while speaking at a small gathering hosted by Justice Project Pakistan (JPP) to commemorate the International Migrants Day and celebrate the return of 41 Pakistanis earlier imprisoned in Sri Lanka. The prisoners were repatriated under a 2004 agreement that allows eligible prisoners to be returned to their home countries.
“It is very difficult to live in a foreign country without your family and we are doing everything possible to help out their loved ones back home and offer scholarships to their children,” Bukhari said while talking about Pakistanis working abroad, adding that nearly a million people have been sent abroad for work by the Pakistani government in the 18 months prior to the pandemic.
“This is our fundamental responsibility to fulfill. To ensure that our prisoners are not only sent back but that their issues here are looked after,” said Pakistan’s High Commissioner to Sri Lanka while addressing those attending via video link. “For all the prisoners who are left here, we will do our utmost best to help you,” he added. Former Commissioner of Sri Lanka’s Human Rights Commission Ambika Satkunanathan also addressed the gathering virtually and thanked the Pakistani government for extraditing the prisoners and returning them home.
In November, 41 prisoners from Sri Lanka were successfully repatriated and returned to Pakistan, to serve out the rest of their sentences close to their family and friends. Earlier this year, many prisoners were also repatriated from countries such as Saudi Arabia and the UAE. Due to the spread of Covid-19 and the fact that prisons are a hotbed for the virus, returning Pakistani citizens imprisoned abroad is imperative.
Due to the lack of a uniform consular policy, Pakistani citizens imprisoned abroad lack consular support and adequate legal representation, often suffering due process violations such as long periods of detention without charge or trial. The majority of Pakistani prisoners in foreign jails are arrested for non-lethal crimes such as drug trafficking, theft and violation of immigration laws.
The event was also attended by foreign dignitaries, including the German Ambassador to Pakistan Bernhard Schalgheck, as well as local politicians and parliamentarians.
Sarah Belal, Executive Director of Justice Project Pakistan, added in a statement, “We are grateful to Special Assistant to PM Zulfikar Bukhari and all the others in the government working for the welfare of Pakistanis abroad. However, while JPP is heartened by the Pakistani government’s initiative and commitment to this cause, there still remain over 11,000 Pakistani prisoners imprisoned in jails abroad. We hope that the efforts regarding the repatriation of prisoners languishing in foreign jails will continue so that thousands of Pakistanis can return home.”