“CARRYING out the death sentence will not meet the ends of justice” — so ruled a five-member bench of the Supreme Court on Wednesday on the question of whether mentally ill prisoners who cannot understand the rationale and reason behind their punishment should be executed. In doing so, the bench has commuted the sentences of two prisoners and ordered that a fresh mercy plea, including complete medical records, be filed for the third prisoner, Ghulam Abbas, included in the petition. The judgement also noted systemic criminal justice failures — from investigation, to trial and appeal processes — effectively undermining the rights of some of Pakistan’s poorest and most vulnerable citizens. Moreover, the apex court issued detailed instructions to review and harmonise existing laws and rules, and to build the system’s capacity to recognise, assess and treat mental illness among the incarcerated population.

Kanizan Bibi and Imdad Ali — who have cumulatively endured half a century on death row — will now be shifted to a mental health facility to receive dignified care. Unfortunately, it is too late for others like Khizar Hayat, who spent 16 years on death row, mostly isolated, before he died chained to a prison hospital bed in 2019. With around 4,000 prisoners awaiting execution, Pakistan has arguably the highest death row population in the world. Since the moratorium on the death penalty was lifted, over 500 people have been executed. These include Ghulam Sarwar and Ghulam Qadir, two brothers who were hanged before being exonerated by the apex court in 2016. Then there are those like Muhammad Iqbal, who was released last year after 21 years on death row, sentenced to be executed at the age of 17 years for a murder he confessed to under torture.

This judgement — the culmination of a decade of campaigning by lawyers, human rights groups and mental health practitioners, and a reaffirmation of our commitment to local safeguards and international law — is truly historic. But there is still so much work to be done. For example, a commission on prison reforms set up by the Islamabad High Court in 2019 reported last year that the Ministry of Human Rights had standardised and streamlined the process for mercy petitions. Unfortunately, since 2014, neither the PML-N nor PTI government has exercised the power of the presidency to grant clemency to people who should not in good conscience be on death row. We may never know the full scale of the miscarriages of justice — and the lives, families and communities shattered by them — that have occurred under this broken system. But the effective ban on executions of prisoners with mental illness can represent a monumental first step in reviewing the entire system of capital punishment. There can only be one logical, just end to a retributive act that has no deterrent effect and risks doing so much harm: the abolition of capital punishment in its entirety.

Published in Dawn, February 12th, 2021