SOME years ago, in a landmark ruling, the Supreme Court issued a transformative decision in the Safia Bano case, significantly advancing the integration of mental health considerations into the country’s criminal justice system.

Led by a five-member bench, with renowned psychiatrist professor Dr Mowadat Hussain Rana serving as amicus curiae, the court declared that carrying out the death sentence in the case of a mentally ill prisoner incapable of comprehending their punishment violated the principles of justice.

The ruling mandated the formation of medical boards for comprehensive evaluations, resulting in the commu-tation of some death penalties to life imprisonment.

It also directed legislative amendments and prison rule revisions to ensure fair treatment and proper care for mentally ill inmates. This included establishing specialised forensic mental health facilities and training programmes for judicial personnel. By setting a precedent for considering severe mental illness as a mitigating factor in capital cases, the decision aligned Pakistan’s legal framework more closely with international human rights standards, emphasising a just and humane approach to mentally ill individuals within the criminal justice system.

Clear protocols are needed in the trial of mentally ill prisoners.

In cases involving Imdad Ali, Kaneezan Bibi, and Ghulam Abbas, Pakistan’s judiciary grappled with complex issues of mental health and criminal responsibility. Imdad Ali, initially facing death for a murder in Burewala, had his sentence commuted to life imprisonment due to schizophrenia. Kaneezan Bibi, convicted of multiple homicides in Toba Tek Singh, also had her death penalty changed to life imprisonment because of schizophrenia. Ghulam Abbas, convicted of murder in Rawalpindi, saw his execution halted after a medical board identified cognitive impairments and psychotic symptoms.

These cases underscored the need for clear protocols in handling mental incapacity claims during trials and highlighted the crucial role of psychiatric assessments in ensuring fair judicial decisions, reflecting a growing awareness of mental health in Pakistan’s legal system.

In 2016, a three-member Supreme Court of Pakistan bench, presided over by chief justice Anwar Zaheer Jamali, issued a verdict imposing capital punishment on Imdad Ali. The judgement, which posited that schizophrenia did not qualify as a mental disorder, elicited substantial controversy and juridical discourse. This ruling underscored the ambiguities and shifting perspectives within Pakistan’s judicial framework concerning mental health issues. The judgement was later reversed.

Before Partition, Pakistan’s mental health laws were rooted in colonial-era statutes like the Lunacy Act of 1912 and provisions from the Indian Penal Code of 1860, maintaining outdated views through Chapter XXXIV of the Criminal Procedure Code. Despite the supersession of the Evidence Act of 1872 by the Qanun-i-Shahadat Order in 1984, terms like ‘lunatics’, ‘unsound mind’ persisted, impacting mental health practices post-independence. It wasn’t until 2001, under Gen Musharraf’s administration, that the first mental health ordinance emerged, later affected by the 18th Amendment. Provincial legislation in Sindh (2013), Punjab (2014), Khyber Pakhtunkhwa (2017), and Balochistan (2019) aimed to modernise mental health laws.

Since 2021, despite clear directives from the Supreme Court in the Safia Bano case, critical aspects of mental health and forensic psychiatry in Pakistan have languished. The esta-blishment of speci-alised forensic psychiatric expertise, crucial for medical board evaluations, remains unreali-sed due to a lack of initiative from the state, the Higher Education Comm-ission, and acade-mic institutions.

Furthermore, no efforts have been made to reform prison rules uniformly across Pakistan or to create specialised forensic settings for mental health offenders. Capacity-building initiatives for judicial officers, law professionals, security personnel, and others involved in mental health cases have also been conspicuous by their absence.

This stagnation is alarming given the Supreme Court’s explicit recommendations. The failure of both the legislative and executive branches to implement necessary reforms reflects a concerning disregard for mental health within Pakistani society. The disconnect between judicial directives and practical implementation underscores a pressing need for immediate action to address these systemic shortcomings and uphold the rights and well-being of individuals affected by mental health issues in the criminal justice system.

The writer issecretary, Pakistan Psychiatric Society, Punjab chapter.

X: @AliBurhanMustfa

Published in Dawn, July 24th, 2024