My op-ed appeared in today’s Dawn here.
Imagine being on death row, facing your imminent execution. You are a murderer, convicted of killing an innocent man; the Supreme Court has rejected your lawyers’ appeal for clemency and a week-long reprieve they gave you is now up. Your execution date is to be set any day now. Perhaps by the time this column is printed, you will already have been hanged.
Will you be saved at any moment by a last-minute decision to commute your sentence? Or will you be unaware that you are about to be hanged to death because you are mentally ill and have no comprehension of what is happening to you but are still fully able to experience the terror of the noose being tightened around your neck?
This is the terrible situation for 50 year old Imdad Ali, a Pakistani prisoner who suffers from paranoid schizophrenia. Ali has spent the last fourteen years on death row, awaiting execution for murdering a religious leader back in 2002. His family has been desperately trying to prove to the authorities that he is suffering from one of the worst forms of mental illness, and that this illness was a major factor in the murder. Even though prison doctors have declared him legally insane, the courts have not heeded them, and Ali’s “black warrant” could be signed any day now.
Pakistan has had a chequered track record with regards to human rights visa-vis state executions since last year’s lifting of the moratorium. A paraplegic, Abdul Basit, was nearly hanged but allowed a reprieve after human rights groups pleaded with the state not to make a man in a wheelchair go to the gallows. The case of Shafqat Hussain was another troubling spot on Pakistan’s human rights record as his age at conviction was disputed up until the end; Hussain was eventually hanged to protests from human rights groups both in Pakistan and abroad. Now, with the possibility that a mentally ill prisoner may be executed, we seem to have hit the trifecta of judicial missteps.
When sentencing a prisoner to death, courts must look at two things: the seriousness of the crime, but also the ability of a prisoner to understand fully what he has done. This is a clear-cut line in the case of minors — juveniles do not suffer punishment as harsh as adults for this reason. For prisoners who suffer from mental illness, it is an even more complex issue because of the lack of education in Pakistan regarding the various mental disorders, the progression of the diseases, and how they affect mental functioning, including the ability to reason and understand the difference between right and wrong.
Then there is the burden of having to prove to a court of law that a prisoner is indeed truly mentally incompetent at the time the crime was committed, and unwell enough to undergo execution, processes which take a great deal of time and money. Imdad Ali’s family is extremely poor, so his wife was unable to provide the expert witnesses that could have spoken on behalf of Ali in his initial trial in 2002. While Ali was kept in jail, his mental condition became worse because he was not given proper care or treatment. A medical report in 2012 found that he was actively suffering from paranoid schizophrenia. But this report was ignored by the Supreme Court, and Ali lost his appeal.
Mental illness is a big problem in prison populations, with many criminals suffering from various mental disorders, but legal experts around the world are in agreement that those who are declared insane should not be put to death. This violates international and Pakistani law, and it is also considered cruel and inhuman punishment. While human rights organizations like Amnesty International assert that the mentally ill must be protected, the stigma against the mentally ill in Pakistan reduces empathy towards those prisoners. Even members of the legal community are not blind to prejudice against the mentally ill, and may label mentally ill prisoners as manipulative or vicious, if not outright lying about their condition or making up its symptoms in order to escape punishment.
The Supreme Court wants to avoid the precedent of extending mercy to other mentally ill defendants on death row, stating in their final judgment that “lots of prisoners have mental illness”; all cannot be set free. Yet it’s obvious that the justice system had a duty of care to Ali and other prisoners like him which they failed. They have ignored medical reports, denied Ali proper medical and mental care, and kept him in solitary confinement for the last three years, which would have certainly made his condition much, much worse. These serious allegations are all violations of legal procedure which would point to a miscarriage of justice, as well as the violation of Ali’s human rights. A mistrial would be the obvious conclusion, not an execution.