Reviewing the death penalty

Iqbal Bano is tired. For a 77-year-old woman with chronic joint pain, insomnia and limited means, the weekly visit to Kot Lakhpat Jail – which she has been making for the last 16 years – has debilitated her.

When she can, Iqbal Bano takes a rickshaw from her house to the jail. But even then, the tight security arrangements around the prison leave her with no option but to walk at least a mile to enter the jail premises and visit her only son, Khizar Hayat.

Khizar, who is now 50, has been on death row since 2003 for killing his best friend. He has been in jail for the last 16 years. Over time, Khizar’s health has deteriorated. During most of Iqbal Bano’s visits, Khizar struggles to recognise his mother. Schizophrenia does that to a person. Even your own mother becomes a stranger and – on bad days – resembles an enemy.

In January, the government set Khizar’s third execution date. When Iqbal Bano told him, he did not understand what an execution warrant was and decided to ask the walls of his cell for an explanation. It is difficult to comprehend that you are about to be hanged when your mental illness prevents you from even understanding that you are in jail.

Defendants who are suffering from mental illnesses often lack the criminal intent required to commit an offence. More often than not, their mental illnesses can lead them to commit crimes. This makes their death sentences all the more problematic.

And yet, Khizar’s is one story among many about Pakistan’s death row prisoners. The exact number of prisoners suffering from mental illnesses is unknown. Owing to the lack of treatment for mental health issues and the dearth of a proper evaluation of the matter under the criminal justice system – especially in Pakistan – many prisoners have never been diagnosed.

We do know that Khizar is not the only one facing this ordeal. Before him, the case of Imdad Ali exposed the flawed conception of mental illness under the criminal justice system. The Supreme Court’s ruling that schizophrenia was “not a mental illness” attracted criticism. It felt like an insult – not only to Imdad’s suffering but to the millions of people who suffer from the disease across the world. Had it not been for the national and international outcry that ensued, Imdad would have been sent to the gallows without knowing why he was being punished.

Before Imdad, there was Munir Hussain. Munir earned himself the macabre achievement of being the 100th person to be executed in Pakistan after the moratorium on the death penalty was lifted. The number of executions now stands at 423.

International law explicitly bans the execution of prisoners who are suffering from mental illnesses. If Pakistan were to abide by its international human rights commitments, Khizar and Imdad would have undergone rehabilitative treatment – under conditions where they pose no danger to anyone – and Munir would not have been hanged.

Prisoners suffering from mental illnesses are among the many victims who have borne the brunt of Pakistan’s broken criminal justice system. In December 2014, the government announced that it would only lift the moratorium on the death penalty for those convicts who faced terrorism charges. But on March 10, 2015, the state, without offering a clear explanation, resumed executions for all 27 death-eligible crimes.

The current number of executions in Pakistan paints a haunting picture which becomes all the more frightening if we consider that it also includes juvenile offenders and, worst of all, those who are innocent of the crimes they have been charged with. Two brothers, who had been in Central Jail Bahawalpur for 11 years, were acquitted by the Supreme Court in November 2016. When the notification reached the jail authorities, a sheepish response revealed that they had been executed in 2015 after President Mamnoon Hussain rejected their mercy petition in October 2015. While the president responded to their petition in time, most mercy petitions that are sent to his office remain unanswered.

This case, like that of Imdad and Khizar, is not exceptional. These are the victims of a system that has been rigged against those who need it the most. There are up to 8,000 prisoners on death row in Pakistan. The only common factor is that they are poor and therefore unable to afford lawyers who can prove them innocent. There are no millionaires on death row.

In principle, capital punishment must only be reserved for the most serious crime, with convictions resulting from a fair and legitimate process that protects a defendant’s basic rights and offers a meaningful appellate process. The legal infrastructure is faulty, mired in red tape and beholden to power. This creates a permissive environment for the routine miscarriage of justice.

At the 33rd Session of the UN Human Rights Council, a representative of the Permanent Mission of Pakistan to the UN said that the country is willing to undertake some reforms in the criminal justice system – especially with respect to reducing the number of death-eligible crimes.

It is this self-awareness of the structural flaws within its criminal justice system that makes the continued use of the death penalty even more difficult to stomach.

Calling for anything short of a complete moratorium on executions endorses the continued killing of people whose rights have been repeatedly violated from the time they are arrested to the point when they are convicted. Sending even one innocent person  to the gallows should have prompted this step. Until a detailed review of the death penalty is conducted, the government of Pakistan must bring back the moratorium.

The writer works with Justice Project Pakistan, a human rights law firm based in Lahore.