Imdad Ali is a mentally ill prisoner who has spent the last 15 years on death row in District Jail, Vehari. On 26th August 2016 the Lahore High Court dismissed a petition filed under Article 199 of the Constitution of Pakistan which argued that Imdad could not be executed on the basis of his mental illness without looking into his actual medical condition and the extenuating circumstances that had aggravated his mental condition during his lengthy time on death row.
An appeal was filed against the decision of the High Court to the Honourable Supreme Court and was dismissed on 27.09.2016 on the basis that the case had previously reached finality and all appeals had been exhausted.
Imdad Ali suffers from mental illness
On 19th September 2016 Imdad Ali was visited by consultant psychiatrist Dr Tahir Feroze Khan, who came to know that a black warrant had been issued when he arrived at the jail. After examining Imdad, Dr Tahir Feroze Khan along with the Jail Medical Officer examined Imdad and declared that he was “not mentally fit”. In the report, it was noted that he was suffering from “irrelevant and incoherent speech (Neologism), auditory hallucinations, bizarre ideations, paranoid delusions, and totally absent insight.” On 27th September 2016, four Human Rights Experts of the United Nations issued a statement calling upon the Government of Pakistan to halt the execution of Imdad and retry him in accordance with international human rights principles. The UN Experts termed the imposition of capital punishment on “individuals with a psycho-social disability” as a “violation of death penalty safeguards” and that his execution was unlawful and could amount to “a form of cruel, inhuman or degrading treatment”.[2]The Law in Pakistan
A number of Constitutional principles and other statutory provisions can be read to prevent executions of mentally ill prisoners such as Imdad Ali.- Constitutional rights
“The dignity of man…subject to the law…shall be inviolable.”Article 9 of the Constitution enshrines the principle that:
“No person shall be deprived of life or liberty, save in accordance with law”.These articles, which are designed to promote the very same values of respect for human dignity, integrity of person, and freedom from arbitrary execution as the Articles of the ICCPR, can clearly be interpreted as supporting the contention that the execution of the mentally ill is contrary to Pakistan’s law. This interpretation is strengthened by the principle that given Pakistan’s status as a signatory to the ICCPR, domestic legislation should, insofar as possible, be interpreted in line with their international commitments.
2. Right to a fair trial The right to a fair trial is enshrined in Pakistani law, in particular Article 10A of the Constitution of Pakistan:
For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.The right to a fair trial requires the court to consider medical evidence of mental disability in sentencing, and conduct an independent evaluation of the person’s mental health status. Article 464(1) of the Code of Criminal Procedure stipulates:
When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined by the Civil Surgeon of the district or such other medical officer.[3]A court that fails to follow this procedure before handing down a sentence of death is in violation of due process guarantees and therefore in breach of Article 10A of the Constitution.
3. Mental illness extinguishes criminal responsibility Article 84 of the Penal Code of Pakistan dictates that a mentally ill person cannot be found criminally responsible for an offence:
“Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”[4]If there is any evidence to suggest that the accused is suffering from mental illness, the court is under an obligation to assess his mental state.
Pakistani courts are therefore under an obligation to consider mitigating medical evidence, and to refrain from holding mentally ill defendants criminally responsible for an offence. In such cases, a death sentence is unlawful. Further proceedings against the accused must be postponed. The Pakistan Prison Rules 1978 also support the contention that mentally ill prisoners should not be executed. Rule 107 sets out instructions for the submission of mercy petitions.“If any person before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently Incapable of making his defence, the Court shall, in the first instance, try the fact of such unsoundness and Incapacity, and if the Court is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case”[5]. Article 465 of the Code of Criminal Procedure
“In case where the condemned prisoner takes plea of young or old age, unsound mind or ill health, two copies of the Medical report by the Medical Officer, of the prison shall also be submitted, stating therein the correct age, ailment, infirmity, etc., as the case may be.” Rule 107(iv)
4. Procedural rights
Compliance with procedural rights requires that the accused understand the proceedings brought against him. Rule 362 of the Prison Rules sets out the procedures that must be gone through immediately before the execution, which include details of the prisoner’s sentence being read out in a language the prisoner understands and the prisoner signing a will before the Jail Superintendent.“The Superintendent and Deputy Superintendent will visit the condemned prisoner in his cell a few minutes before the hour fixed for execution. The Superintendent shall first identify the prisoner as the person named in the warrant and read out a translation of the warrant and sequence of rejection of appeal and mercy petitions in national or regional language to the prisoner in the presence of the Coordination Officer. Any other document requiring signature by the prisoner, such as his will, shall thereafter be signed by him and attested by the Coordination Officer. The Superintendent will then proceed to the scaffold; the prisoner remaining in his cell. In the presence of the Deputy Superintendent the hands of the prisoner will next be pinioned behind his back and his fetters (if any) removed.” Rule 362(i)Under Section 29 of the Mental Health Ordinance 2001 (as amended by the Punjab Mental Health (Amendment) Act 2014), a person suffering from mental illness cannot sign a will (or otherwise dispose of property) without a guardian being appointed by the Court of Protection. It’s clear that the procedures in Rule 362 envision the prisoner being sufficiently mentally competent to understand the nature of their sentence and to order their affairs before their execution. In the case of prisoners suffering from severe mental illness, these requirements simply cannot be followed.
Endnotes 1 Based on decision announced in open court. Full order not yet issued from the Supreme Court. 2 “UN rights experts urge Pakistan authorities to halt execution of man with disability,” UN News Centre, 27 September 2016, available at http://www.un.org/apps/news/story.asp?NewsID=55142#.V- uwX0YrK2w. 3 Pakistan Code of Criminal Procedure, as amended by Act No. 2 of 1997, sec. 341, Jul. 1, 1898. 4 Pakistan Penal Code, as amended by Criminal Laws Amendment Act of 2012, sec. 84, Act No. 65, Oct. 6, 1860, http://www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html, last accessed Aug. 17, 2015. 5 Pakistan Code of Criminal Procedure, as amended by Act No. 2 of 1997, sec. 341, Jul. 1, 1898. 6 See Dawn, June 2015, ‘Mentally unstable woman among 65 whose mercy pleas rejected’ http://www.dawn.com/news/1189934/mentally-unstable-woman-among-65-whose-mercy-pleas- rejected
