SC bars carrying out death penalty for inmates with mental disorders

Published February 10, 2021
— Photo courtesy Supreme Court website/File
— Photo courtesy Supreme Court website/File

The Supreme Court on Wednesday said that if a prisoner on death row is unable to comprehend the rationale behind their punishment due to a mental illness, then carrying out the death sentence does not "meet the ends of justice".

The apex court announced the verdict after reserving its judgement on whether mentally ill death-row prisoners can be executed.

Headed by Justice Manzoor Ahmad Malik, a five-judge bench announced the judgement at the Lahore registry. Other members of the bench included Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah.

The bench had on Jan 7, 2021, reserved its verdict after marathon hearings on three appeals pertaining to as many mentally ill prisoners on death row amid a consensus from the amicus curiae and advocate generals that such inmates should not be executed.

The appeals had been filed on the behalf of Kanizan Bibi, Imdad Ali and Ghulam Abbas who have spent 30, 18 and 14 years on death row, respectively, while exhibiting acute symptoms of mental illness.

The petitioners were represented by Syed Iqbal Hussain Shah Gillani, Barrister Hashim, Barrister Jugnoo Kazim, Maria Kazmi, Qasim Ali Chohan, Chaudhry Muhammad Sarwar Sidhu, Dr Faria Munawar and Zahid Bhatti.

In its judgement, the court commuted the death sentences of Kanizan Bibi and Imdad Ali to life imprisonment.

Meanwhile, the court directed a fresh mercy petition to be prepared on behalf of Ghulam Abbas, stating that there was nothing on record to show whether mental illness was taken into consideration while dismissing an earlier plea.

The petition is to be prepared in accordance with the relevant Prison Rules and submitted to the president.

The court also directed the Punjab government to immediately shift the accused from prison to the Punjab Institute of Mental Health, Lahore, for treatment and rehabilitation.

The court also directed authorities to amend the Prison Rules to bring the jail manuals of all the provinces in harmony, and directed the federal and provincial governments to establish/create high security forensic mental health facilities at teaching and training mental health institutions .

"The federal government (for Islamabad Capital Territory) and each provincial government, shall immediately constitute and notify a medical board comprising of three qualified and experienced psychiatrists and two psychologists from public sector hospitals for examination and evaluation of the condemned prisoners who are on death row and are suffering from mental illness to ensure that such mentally ill condemned prisoners [...] are not executed," the judgement read.

The federal and provincial governments were also directed to launch training programmes and short certificate courses on forensic mental health assessment for psychiatrists, clinical psychologists, social workers, police and prison personnel.

The Federal Judicial Academy, Islamabad, and all the provincial judicial academies shall also arrange courses for trial court judges, prosecutors, lawyers and court staff on mental illness including forensic mental health assessment, the judgement added.

In its judgement, the SC clarified that not every mental illness shall automatically qualify for an exemption from carrying out the death sentence.

"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 judgement read.

In the judgement, the apex court observed that the terms “mental illness” or “mental disorder” are both used to refer to mental ailments and are defined by medical science.

"It is with the developing nature of medical science that scope of these terms may also evolve. Therefore, we are of the view that a limited definition of the terms 'mental disorder' or 'mental illness' should be avoided, and the provincial legislatures may [...] consider to appropriately amend the relevant provisions of mental health laws to cater for medically recognised mental and behavioral disorders as notified by the World Health Organisation."

The court also noted the use of "stigmatic labels" such as "unsound mind", "lunatic" and "insane".

"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.

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