The writer is an advocate of the Supreme Court of Pakistan and the managing partner of Qayyum & Associates at Lahore.
The recent judgement of the Supreme Court of Pakistan, declining to interfere with the death warrants of a man on death row, who had after his conviction been diagnosed as schizophrenic, has come in for much comment and criticism, nationally and internationally. To many it has seemed that the court has held that schizophrenia is not a mental disorder and cannot be grounds for suspending death warrants.
The judgement may perhaps be correct on the facts of the case, though there is some doubt as to that as well, but more unfortunately due to its ambiguous expression and weakly stated reasons, it has confused the state of the law and attracted criticism.
The question before the court was simply whether a convict who had become schizophrenic after being convicted could be executed. The court, instead of directly answering this question in law, has held that the convict Imdad Ali was judged not to be schizophrenic during trial and appeals, so he cannot to be treated as schizophrenic now and his death warrants cannot be suspended. What seems to have prevailed with the court is the impression, perhaps incorrectly, that the post-conviction finding by a medical board that Imdad Ali is schizophrenic was considered and rejected previously by the Supreme Court. In fact, the judgment of the Supreme Court upholding conviction does not mention that it considered the post-conviction diagnosis or that even that this diagnosis was brought to the Supreme Court’s notice.
Notwithstanding the judgement upholding conviction, to my mind, there is some doubt as to whether Imdad Ali got a proper defence: his doctor who had treated him before the offence refused to appear when he was summoned, and the court instead of compelling him to appear left it at that. Even the prosecution’s case seems to give some support to the belief that Imdad Ali, to my mind, may have been insane: the stated reason in the FIR for his shooting and killing his victim, a religious scholar had been that the said scholar ‘for 4/5 years, was.. [despite efforts] not giving him [spiritual] knowledge… rather was causing obstruction in the spiritual knowledge’ and thus the convict ‘wanted to teach him a lesson.’ Be that as it may, since the conviction had attained finality, it was unlikely to have been interfered with now.
However, that seems not to have been what was asked of the court this time around: this time around the court was told that after his conviction a government established medical board had adjudged Imdad Ali seriously schizophrenic and he cannot be executed in such a state. The court this time around declared that this stance appears to be a delaying device and seems to have ignored or presumably rejected the distinctly different stance taken in this second round before it, and in effect rejected the finding of independent medical specialists, presumably by not believing it. Perhaps, procedural fairness had required in this instance that an independent medical board been reconstituted to re-examine Imdad Ali, if there was any doubt in the court’s mind. In view of all of the above, there are still thus grounds for Imdad Ali to file a review against the latest judgement.
Had the court stopped there by only disbelieving Imdad Ali’s stance, the judgement would not have attracted as much comment or criticism. It is what the judgement further states by way of reasons and justification that has attracted an outcry, perhaps unmerited, due to ambiguity in its wording and strained authorities in support of its reasons.
In its judgement, the court, when it did not even need to address the point, begins by considering what precisely schizophrenia is. First, there appears to have been a mistake in method: instead of directly examining medical texts or seeking help through an amicus to consider what is schizophrenia, the court relies on dictionaries and a judgement of the Indian Supreme Court containing certain cherry-picked medical excerpts.
The said Indian judgement concerned a civil case in which a man was seeking to get his marriage dissolved by proving his wife was schizophrenic, and ostensibly the Indian Supreme Court was attempting not to readily hold a wife schizophrenic just to let a complaining husband get out of his marriage. Quite how this can be used as an authority in a criminal case against an accused, where the benefit of doubt should be given to the accused, is not easily understandable.
Next the judgement errs in its reasoning as even the quoted excerpts clearly state that schizophrenia is ‘more serious than other types of mental illness,’ is ‘[a] severe mental disorder.’ Yet our Supreme Court relies on only portions of the said excerpts to observe that schizophrenia ‘is not a permanent mental disorder, rather imbalance, …depending on stress.’ The court then goes on to state that ‘schizophrenia… is a recoverable disease, which, in all cases, does not fall within the definition of ‘mental disorder’ as defined in the Mental Health Ordinance, 2001.’
This last sentence is what has caused international furore. Most have taken it to mean that the court is suggesting that in no case can schizophrenia be considered a mental disorder; that it is OK in all cases to hang all schizophrenic convicts. What the court in my estimation may have been saying is that not all cases of schizophrenia amount to mental disorder and in fact the determination needs to be made on a case-by-case basis. That the case of Imdad Ali, even if it amounted to schizophrenia, was not of a type serious enough to rise to the level of ‘mental disorder’ which may have called for interference; this is why the Supreme Court earlier rejected his appeal against conviction.
The Supreme Court however does not clearly say so and most persons have proceeded to take it, as aforesaid, to mean that the court is saying that it is permissible to hang convicts with serious mental disorders.
Things could have rested here too, if somewhat uneasily, but the Supreme Court in its judgement goes further and quotes another judgement of the Indian Supreme Court from 1977 which seems to have held that there is no legal reason why a person once convicted, even if he thereafter goes insane, cannot be executed. Unfortunately, the Pakistani Supreme Court judgement does not state whether the Indian view is approved or not. One can query that if this was not the view of the Supreme Court of Pakistan, then why quote the Indian view. If so, then the comment and criticism on this point is perhaps merited. This is particularly so as the judgement our Supreme Court has relied on has been markedly departed from in Indian jurisprudence subsequently.
As stated, the Supreme Court at this point stops confusingly short, takes a step back and states that since the findings on the mental status of the convict have attained finality, so there is no reason for interfering with the death warrants, and leaves it at that.
In the end one is left with more questions than answers. However, for Imdad Ali, the answer, barring an improbable change of opinion by the Supreme Court in a review, is brutally final. In so far as the judgement as it stands on the general law, it needs to be clarified by the court at the earliest, if for nothing but for others that follow Imdad Ali.