• Says not every mental illness shall automatically qualify for exemption
• Commutes death penalty of two death-row prisoners on principle of life expectancy
• Orders replacing terms ‘unsoundness of mind’ and ‘lunatic’ with ‘mental illness’ or ‘mental disorder’ in PPC, CrPC and Prison Rules
• Rights organisations term verdict historic

LAHORE: In a verdict hailed by rights organisations, the Supreme Court has ruled that a condemned prisoner if found, due to mental illness, unable to comprehend the reasons behind his/her punishment qualifies for an exemption from the execution of death sentence.

“We hold that if a condemned prisoner, due to mental illness, is found to be unable to comprehend the rationale and reason behind his/her punishment, then carrying out the death sentence will not meet the ends of justice,” said a 51-page judgement announced by a five-judge SC bench at the Lahore registry on Wednesday.

The judgement, however, 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 a case where a medical board comprising mental health professionals certifies after a thorough examination and evaluation that the condemned prisoner no longer has the higher mental functions to appreciate the rationale and reasons behind the sentence of death awarded to him/her.

To determine whether a condemned prisoner suffers from such a mental illness, the verdict said, the federal and each provincial government shall constitute and notify a medical board comprising qualified psychiatrists and psychologists from public sector hospitals.

Authored by Justice Manzoor Ahmad Malik, the judgement came on three appeals pertaining to as many mentally ill condemned prisoners, including Kaneezan Bibi, Imdad Ali and Ghulam Abbas who have respectively spent 30, 18 and 14 years on death row while exhibiting acute symptoms of the illness.

The SC bench commuted the death penalty of Imdad Ali and Kaneezan Bibi into life imprisonment not on the ground of mental illness but on the principle of legitimate expectancy of life recently considered by the apex court in a case titled “Sikandar Hayat and another verses the State (PLD 2020)”.

However, in view of the medical opinion regarding the mental health condition of the convicts, the bench directed the Punjab government to immediately shift them from prison to Punjab Institute of Mental Health, Lahore, for treatment and rehabilitation.

It ruled that the convicts, on the completion of their sentence, shall be examined afresh by a medical board and shall be released from the hospital as and when the board opines they are fit for themselves and for society.

About Ghulam Abbas, the bench directed the prison officials to file a fresh mercy petition for the third time before the president mentioning the plea of mental illness taken by him along with his entire medical history/record, report of a medical board and a copy of this judgement.

“We expect that the mercy petition filed on behalf of condemned prisoner Ghulam Abbas shall be disposed of after taking into consideration all the circumstances, including the observations made by this court in the instant judgement,” stated the verdict.

The bench ordered the government to also shift Abbas, till disposal of his mercy petition, to Punjab Institute of Mental Health in accordance with provisions of Prison Rules for his treatment and rehabilitation. It further directed the federal and provincial governments to immediately make necessary amendments to the relevant laws and Prison Rules so as to bring jail manuals of the provinces in harmony.

The apex court noted that the evolution of medical science and human rights had sensitised society to stigmatic labels such as “unsound mind, lunatic and insane” and the latest legislations all over the world did not use such terms.

“Therefore, we consider it appropriate to direct that the terms ‘unsoundness of mind’ and ‘unsound mind’ occurring in PPC, CrPC and the Prison Rules be substituted with term ‘mental disorder’ or ‘mental illness’. The term ‘lunatic’ wherever occurs shall also be substituted appropriately,” said the ruling.

The SC bench directed that the terms “unsoundness of mind” and “lunatic” be replaced wherever they occur in the Pakistan Penal Code (PPC), Code of Criminal Procedure (CrPC) and the Prison Rules, with sensitised and updated language such as “mental illness” or “mental disorder”.

The federal and provincial governments have been directed to establish/create high security forensic mental health facilities in the teaching and training institutions of mental health for assessment, treatment and rehabilitation of under-trial prisoners and convicts who have developed mental ailments during their incarceration.

They have also been directed to immediately constitute and notify a medical board comprising three qualified and experienced psychiatrists and two psychologists from public sector hospitals for examination and evaluation of the condemned prisoners suffering from mental illness to ensure that such mentally ill inmates who no longer have the higher mental functions to appreciate the rationale and reasons behind the sentence of death awarded to them are not executed.

The governments have been ordered to constitute another medical board at each divisional headquarter of the provinces for examination, assessment and rehabilitation of the prisoners i.e. under-trial and convicts, if referred by the jail authorities. The federal and provincial authorities shall immediately launch training programmes and short certificate courses on forensic mental health assessment for psychiatrists, clinical psychologists, social workers, police and prison personnel, said the ruling.

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

Other members of the bench were Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah.

The federation and provinces had argued before the apex court that mentally ill persons should neither be handed down death penalty nor executed.

Professor Dr Mowadat Hussain Rana and Advocate Haider Rasul Mirza had assisted the court as amicus curiae with their medical and legal expertise. They had a similar opinion that mentally ill prisoners should not be executed and instead shifted to a psychiatric facility where they could be treated with psychotropic medications and psychological interventions.

Meanwhile, Barrister Sarah Belal, executive director of Justice Project Pakistan, an organisation working for prisoners’ rights, termed the judgement historic that validated her decade-long struggle to get the courts to recognise mental illness as a mitigating circumstance against the imposition of the death penalty.

The Human Rights Commission of Pakistan also welcomed the verdict for recognising that prisoners [with a mental illness] were among the most vulnerable and could not in good conscience be executed.

Published in Dawn, February 11th, 2021