A FEW 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, including renowned psychiatrist Professor Dr Mowadat Hussain Rana, who acted as amicus curiae, the court declared that carrying out the death penalty in the case of a mentally ill prisoner incapable of understanding his punishment violated the principles of justice.
The ruling ordered the formation of medical boards to conduct comprehensive evaluations, resulting in some death sentences being commuted to life imprisonment.
It also ordered legislative amendments and a review of prison rules to ensure fair treatment and adequate care for mentally ill prisoners, including the establishment of specialized forensic mental health centres and training programmes for judicial staff. By setting a precedent for considering serious mental illness as a mitigating factor in capital cases, the decision more closely aligned Pakistan’s legal framework with international human rights standards, emphasizing a fair and humane approach to persons with mental illness within the criminal justice system.
Clear protocols are needed in the trial of prisoners with mental illness.
In the cases of Imdad Ali, Kaneezan Bibi and Ghulam Abbas, Pakistan’s judicial system was faced with complex issues of mental health and criminal accountability. Imdad Ali, who was initially facing the death penalty for a murder in Burewala, had his sentence commuted to life imprisonment because he suffers from schizophrenia. Kaneezan Bibi, convicted of multiple murders in Toba Tek Singh, also had his death sentence commuted to life imprisonment because he suffers from schizophrenia. Ghulam Abbas, convicted of murder in Rawalpindi, had his execution stayed after a medical board identified cognitive impairments and psychotic symptoms.
These cases underlined the need for clear protocols for handling mental incapacity claims during trials and highlighted the crucial role of psychiatric evaluations in ensuring fair judicial decisions, reflecting a growing awareness of mental health in Pakistan’s legal system.
In 2016, a three-member bench of Pakistan’s Supreme Court, headed by Chief Justice Anwar Zaheer Jamali, issued a verdict imposing the death penalty on Imdad Ali. The verdict, which posited that schizophrenia did not qualify as a mental disorder, sparked a great deal of controversy and legal debate. The verdict highlighted the ambiguities and shifting perspectives within Pakistan’s judicial framework regarding mental health issues. The verdict was later overturned.
Prior to Partition, Pakistan’s mental health laws were based on colonial-era statutes such as the Lunacy Act of 1912 and provisions of the Indian Penal Code of 1860, while retaining outdated views through Chapter XXXIV of the Criminal Procedure Code. Despite the replacement of the Evidence Act of 1872 by the Qanun-i-Shahadat Order in 1984, terms such as “lunatic” and “unsound mind” persisted, impacting post-independence mental health practices. It was not until 2001, under the administration of General Musharraf, that the first mental health ordinance emerged, subsequently 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, some critical aspects of mental health and forensic psychiatry in Pakistan have remained stagnant. The creation of a specialised forensic psychiatry service, crucial for assessments of medical colleges, remains unfulfilled due to lack of initiative from the state, the Higher Education Commission and academic institutions.
Furthermore, there have been no efforts to reform prison rules in a uniform manner across Pakistan or to establish specialised forensic centres for offenders suffering from mental health problems. Capacity-building initiatives for judicial officers, legal professionals, security personnel and others involved in mental health cases have also been conspicuous by their absence.
This stalemate is alarming, given the Supreme Court’s explicit recommendations. The failure of the legislative and executive branches to implement necessary reforms reflects a worrying disregard for mental health in Pakistani society. The disconnect between judicial directives and their practical implementation underscores the pressing need for immediate action to address these systemic shortcomings and uphold the rights and well-being of people affected by mental health issues in the criminal justice system.
The author is secretary of Pakistan Psychiatric Society, Punjab Chapter.
Published in Dawn, July 24, 2024
