Judicial diagnosis of mental illness

Yesterday, Supreme Court of Pakistan set a landmark precedent in its human rights jurisprudence. In a ground breaking decision the Court decided to open up a review in a previous decision refusing to suspend the execution of condemned prisoner Imdad Ali on grounds of his mental illness. Imdad Ali is a 50 year old diagnosed paranoid schizophrenic who has been languishing on death row in Vehari for the past 14 years. On 27 September, Imdad’s wife appealed to the august court to suspend his black warrant on the basis of his long history of mental illness which has been confirmed by detailed records maintained by the jail. The Court’s response however, triggered outrage amongst international and domestic legal experts and medical practitioners. It stated that Schizophrenia was a “recoverable disease” and therefore did not fall within the definition of mental disorders as stated under the Mental Health Ordinance 2001. The Court additionally decided that the existence of mental illness is not a grounds for the suspension of death sentence.

This is clearly a dangerous precedent for Pakistan’s criminal justice system and its treatment of mentally ill prisoners. In one swift move, the Court essentially approved execution warrants for the hundreds of mentally ill prisoners on Pakistan’s death row. Under the current law in Pakistan, mentally ill prisoners may not be found criminally liable. However, there exists no legislative bar on executions of those suffering from mental illness. As a result, mentally ill prisoners who are unable to raise their mental condition as a defence prior to sentencing or develop mental illness during their time in prison are accorded no protection under the current legal framework. The Supreme Court now has an opportunity to change that.

While there exists no explicit bar on the executions of mentally ill prisoners in Pakistan, international human rights jurisprudence prohibits such punishments as cruel. Inhuman and degrading treatment. The Government of Pakistan is bound by international law through the various UN Human Rights Treaties that it has ratified, such as the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT). The UN Human Rights Committee – the monitoring body for the ICCPR – unequivocally stated in the cases of Sahadath v. Trinidad and Tobago (2002) and Francis v. Jamaica (1995) that the issuance of an execution warrant in the case of mentally ill prisoners violates Article 7 of the ICCPR. The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has repeatedly criticised the practice of imposing the death penalty on mentally ill offenders. In fact, following the Supreme Court’s dismissal of Imdad Ali’s appeal, Rapporteur along with 3 other UN Human Rights experts called upon the Government of Pakistan to annul Imdad’s death sentence and to ensure a fair re-trial on the basis of his mental health status.

Pakistan is a dualist country with regards to its application of its international law obligations. This means that in order for Courts to rely directly upon international treaty obligations they must be given effect in domestic legislation. However, the Government of Pakistan has maintained consistently in UN human rights treaty body reviews that Pakistan’s domestic legislation adequately encompasses the breadth of its international human rights obligations. Additionally, authoritative precedent of the Supreme Court establishes in cases such as PLD 1958 SC 138 that domestic provisions of law must be interpreted so as not to be inconsistent with international legal obligations. As a result, a decision of the Honourable Court that conforms to Pakistan’s international obligations must honour the prohibition on the executions of mentally ill prisoners enshrined in international law.

In this vein, countries all over the world that still practice the death penalty limit it in the case of mentally ill prisoners. The Supreme Court of India in the landmark judgment of Shatruganjh Chauhan (2014) unequivocally stated that death convicts suffering from schizophrenia cannot be hanged. This decision was also upheld by a decision of a 5 member bench in the case of Navneet Kaur v. State of Delhi (2014). Similarly, the United States Supreme Court in the case of Ford v. Wainwright ruled it unconstitutional for states to execute mentally incompetent prisoners who do not understand their punishments or why they are being executed.

The Supreme Court is scheduled to hear the review for the first time in the second week of November. This hearing will represent a critical juncture in Pakistan’s human rights record and an opportunity to demonstrate to the international community of its commitments to its international legal obligations. Mentally ill prisoners on Pakistan’s death row, such as Imdad Ali, remain in limbo for years in conditions of desperation and abuse in death row cells all over the country until they are finally marched to the gallows. For the first time in Pakistan’s legal history there is a glimmer of hope for the realisation of the rights that are due to them under the Constitution and under international law.

The writer is a lawyer currently working with the Justice Project Pakistan

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