ALTHOUGH mental illness may be as debilitating as, or worse than, any physical ailment, it is not visible to the eye. Later this week, when Imdad Ali walks to the gallows, the world will see his body being punished but not his paranoid schizophrenic mind or the delusions, hallucinations and perceptual disturbances that impaired his judgement.

Whilst it is Imdad Ali’s tragedy that the Supreme Court preferred not to exercise leniency and delay his execution, it is a greater misfortune for the country that mental health issues remain as misunderstood and underexplored, by medical and legal professionals alike, as they are pervasive.

Imdad Ali’s particular legal history is both complicated and sad. In 2002, a court in Multan sentenced him to death for murdering a religious teacher. In 2008, the Lahore High Court and then in 2015, the SC rejected his appeals. Earlier this year, he filed a mercy petition before the president, which was also rejected. Then his wife filed a petition before the high court to have his execution delayed, however, this too was dismissed. The present order has been passed in her appeal to the SC.

Courts subordinate to the SC may rely upon the recent ruling as a precedent in determining other similar cases.

At each step in the proceedings, Ali and then his wife pleaded his insanity, first as a defence and then as a ground for delay of execution. In terms of Section 464 of the Criminal Procedure Code, if on consideration of the evidence of an independent medical examiner, the trial court had formed the view that Ali was of unsound mind — ie his judgement was sufficiently impaired to prevent him from understanding the nature or legal implications of his act — then under Section 84 of the Penal Code he could not have been held liable for murder. At each step, however, the courts formed and affirmed the view that despite his illness, Ali was not entitled to take this plea.

The fact that Ali had been independently examined, found to be suffering from paranoid schizophrenia and still not considered a lunatic for the purposes of the law, or committed to a hospital for treatment before he could be tried, speaks volumes for the legal attitude towards mental illness in Pakistan.

The SC’s present order is no exception to this general trend. It states that schizophrenia is “not a permanent mental disorder, rather imbalance increasing or decreasing depending level of stress. It is a recoverable disease … which … does not fall within the definition of mental disorder....”

The court’s dismissive attitude is further evident from the fact that in arriving at this conclusion, it refers to the definition of ‘mental disorder’ in a defunct Mental Health Ordinance 2001 and interprets it in light of definitions in English rather than medical dictionaries and 1977, 1988 decisions of the Supreme Court of India, rather than recent decisions of more medically advanced jurisdictions.

It may be argued that the court’s somewhat cursory treatment of schizophrenia is due to successive courts having already addressed this issue. However, it is also indicative of the inadequate, outdated and fragmented state of mental health laws in Pakistan, which prevents the legal system from developing a meaningful understanding of underlying issues.

Whilst the joint efforts of Pakistani psychiatrists to update the Lunacy Act 1912 had led to the promulgation of the Mental Health Ordinance 2001, the law was rarely invoked. After the 2010 18th Amendment, responsibility for mental health devolved upon the provinces. However, presently only Sindh and Punjab have enacted mental health laws.

Unfortunately, even this weak legal framework has not been implemented. Presently, Pakistan has no recognised authority either for ensuring the welfare of patients or addressing the concerns of psychiatrists, even in an emergency.

Government facilities for mental patients are limited at best. The large number of private in-patient facilities are not registered with any authority and, therefore, unaccountable for the quality of their performance. Consequently, not only does the care of patients remain the responsibility of their relatives but they are also vulnerable to abuse at the hands of charlatans.

Given the situation, it falls to the courts to devise guidelines to balance the need to protect a person who is innocent but unfit to defend himself due to unsoundness of mind, and the need to protect the public from a person who has committed an act which would be a crime if it had been done with the requisite intention.

The UK Mental Health Act 1983 provides a precedent for striking such a balance. In terms of this law, if the sanity of an accused is questioned in any proceedings, he may be remanded to a hospital for evaluation or treatment and the trial may only proceed once he has recovered. Only in more serious mental health cases, does the question of fitness to defend arise.

The Court of Appeal of England & Wales has also laid down guidelines in R. v Bird (1990) for cases in which it becomes necessary for the court to sentence a mentally disordered person. It stipulated that in arriving upon a decision in this regard, courts should consider whether the offender is sufficiently dangerous and culpable to a degree that merits a custodial sentence or whether it may be more appropriate to commit him to a hospital for treatment along with a community sentence.

Disappointing as the SC’s assessment of paranoid schizophrenia and its inability to consider Imdad Ali’s welfare along with his culpability may be, the greater danger lies in the fact that courts subordinate to the SC may rely upon this judgement as a precedent in determining other similar cases.

This merely increases the responsibility of the judiciary to address future cases involving the mentally ill with greater sensitivity and to devise legal tests for determining their liability under criminal as well as civil laws, so that guilty or not, the mentally ill may be treated with the dignity and compassion that is their legal and human right.

The writer is a barrister and an advocate of the Supreme Court of Pakistan.

amber.darr@gmail.com

Published in Dawn, October 31st, 2016