On Wednesday, the Supreme Court said that if a death row inmate is unable to grasp the reasoning behind their execution due to a mental disorder, then the death penalty is not “meet the ends of justice”
After reserving its decision on whether mentally ill death-row inmates should be hanged, the supreme court pronounced the judgement.
A five-judge tribunal, led by Justice Manzoor Ahmad Malik, pronounced the judgement at the Lahore Registry. Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah were among the other members of the bench.
After marathon hearings on three cases involving as many mentally ill prisoners on death row, the bench had reserved its decision on January 7, 2021, in the wake of a majority of the amicus curiae and advocate generals that those inmates should not be hanged.
The appeals were lodged on behalf of Kanizan Bibi, Imdad Ali and Ghulam Abbas, who were on death row for 30, 18 and 14 years, respectively, despite having acute signs of mental illness.
The court commuted the death sentences of Kanizan Bibi and Imdad Ali to life imprisonment in its judgement.
In the meantime, on behalf of Ghulam Abbas, the court ordered a fresh mercy petition to be prepared, noting that there was nothing on record to prove whether mental illness was taken into account when denying an earlier appeal.
The petition is to be prepared and delivered to the president in compliance with the applicable prison laws.
The court also ordered the government of Punjab to urgently move the accused for care and recovery from jail to the Punjab Institution of Mental Health, Lahore.
The court also ordered authorities to update the Prison Rules to put in harmony the prison manuals in all provinces, and instructed federal and provincial governments to set up/create high-security forensic mental health facilities in mental health establishments for teaching and training.
A medical board consisting of three trained and experienced psychiatrists and two psychologists from public sector hospitals shall be formed and informed immediately by the federal government (for Islamabad Capital Territory) and each provincial government for the review and evaluation of condemned prisoners who are on death row and suffer from mental illness to ensure that those mental illnesses
For psychiatrists, psychiatric psychologists, social workers, police and jail officers, the federal and provincial governments were both directed to launch educational programmes and brief qualification courses on forensic mental health assessment.
The Federal Judicial Academy, Islamabad, and all provincial judicial academies shall also organise mental illness classes, including forensic mental health examination, for trial court judges, attorneys, lawyers and court personnel, the judgement said.
The SC has explained in its decision that not all mental disorders automatically count for an exception from the death penalty.
This exception will be valid only in the situation where, after a rigorous review and assessment, a medical board composed of mental health professionals certifies that the convicted prisoner no longer has higher mental functions to understand the reasoning behind the sentence of death awarded to them,”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 supreme court noted in the judgement that both the words “mental disease” or “mental disorder” are used to refer to mental ailments and are described by medical science.
The definition of these terms can also change with the growing nature of medical science. We are also of the opinion that a narrow meaning of the words “mental disorder” or “mental disease” should be avoided, and the provincial legislatures can […] consider amending the applicable provisions of mental health legislation sufficiently to remedy medically defined mental and behavioural conditions as stated by the World Health Organisation.
The court also noticed that “stigmatic labels” such as “unsound mind”, “lunatic” and “insane” were used.
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 Pakistan Penal Code, the Criminal Code of Procedure and the Prison Rules be substituted with term ‘mental disorder’ or ‘mental illness’.
“The term ‘lunatic’ wherever it occurs shall also be substituted appropriately,” the judgement stated.