THE urgency could not be more acute. With Khizar Hayat’s execution still under debate following the issuance of his death warrant — and the suspension till further orders on Saturday of his sentence by the chief justice — the fate of not just one man but of the country’s criminal justice system and its moral conscience lies in the balance. As this paper maintains, capital punishment is unjustifiable under any circumstances. Besides the ethical question of its place in a humane and just society, it serves no utilitarian purpose in the prevention of crime, discriminatorily targets the poor and other vulnerable groups, and is often imposed after unfair trials in which due process is violated. For such a penalty to be imposed on someone suffering from severe mental illness would not only be an irreversible but also perverse miscarriage of justice.
Beyond sense or reason — this is how the chief justice of Pakistan described giving judicial sanction to the execution of people with mental illness or disabilities in April last year, an issue now up for determination before a Supreme Court bench constituted following a review of death sentences handed to Kaniz Fatima and Imdad Ali, two other death-row convicts with acute psychiatric conditions. Khizar Hayat’s death warrant, signed off on by a districts and sessions court on Friday, is in blatant violation of the National Commission for Human Rights’ orders last month barring authorities from handing him a date of execution prior to the broader issue’s adjudication in the apex court. In terms of international law, moreover, the matter is clear: as a party to the International Covenant on Civil and Political Rights, Pakistan is obligated to not execute prisoners with serious psychosocial or intellectual disabilities. To contravene this legal and moral point would only further eat away at the scaffolding upon which our fundamental rights are affirmed and erode the social contract between the state and its people.
Is this why the moratorium on the death penalty was lifted, to sentence people who lack mens rea to death? Diagnosed in 2008 with treatment-resistant paranoid schizophrenia and unanimously confirmed by court-ordered and independent evaluations since, Khizar has no awareness of his surroundings or situation. He is vulnerable and has faced near-fatal attacks by fellow inmates in the past. For him to be sent to the gallows instead of a psychiatric facility is inhumane and unjust. Right now, there is one person with the constitutional authority to immediately determine his fate and, by extension, the course of this country’s moral arc — and bend it towards justice. Before President Arif Alvi lies pending Khizar’s petition for clemency and, with it, the first true test of the might and mercy of his fledgling presidency. Mr President, put an end to this injudicious travesty and spare Khizar’s life once and for all. Sign his mercy plea.
Published in Dawn, January 13th, 2019