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Friday March 29, 2024

A verdict for the vulnerable

By Sana Farrukh
February 11, 2021

In August 1989, a young girl was taken into police custody and ruthlessly tortured for 15 days. Her father, who was her only caretaker since the death of her mother in infancy, waited desperately outside the police station, unable to scrape together funds to apply for bail.

Tied, hung from the ceiling, and rats let loose in her trousers, Kanizan confessed to a crime she maintains she did not commit. Twenty-five years later, when we at Justice Project Pakistan had the privilege of taking her case, Kanizan was mute, severely inhibited by her active schizophrenia, and barely able to care for herself.

Yesterday, on the 10th of February, 2021, the Honourable Supreme Court of Pakistan announced its landmark verdict in the cases of three death-row prisoners with mental illness. One of these prisoners is Kanizan Bibi, Pakistan’s only woman on death row awaiting execution. Her sentence of death, which could not be executed due to her severe mental illness, and has resulted in her languishing in prison for over two life sentences, has now been commuted to life imprisonment. Having served the entirety of her sentence twice over, Kanizan will soon be a free woman.

Imdad Ali, who has been imprisoned for nearly 20 years, has also had his sentence commuted to life imprisonment, while in Ghulam Abbas’s case, the court has directed that a complete mercy petition be forwarded to the President and decided in light of this judgment.

The court’s judgment is forceful and direct. Justice Manzoor Ahmad Malik’s powerful opening paragraph reads: “The mental health of a person is as important and significant as his physical health. Unfortunately, it is often not given the importance and seriousness it deserves. Because of certain misconceptions, the implications of mental illness are overlooked and the vulnerability or disability that it causes is not given due attention.”

The court also addressed the grave procedural lapses in Imdad Ali’s case, condemning the trial court and high court’s approaches. The honourable justices also ordered that all the prisoners be immediately shifted to the Punjab Institute of Mental Health, that skilled Medical Boards be notified across Pakistan, and all stakeholders be extensively trained to ensure that no prisoner with mental illness is wrongfully sentenced to death.

In 2020, the Covid-19 pandemic resulted in a ban on prison visitation and the cancellation of hearings across the country – leaving the most vulnerable individuals without recourse. Despite the difficulties with lawyers visiting their clients, I was able to visit Kanizan in August. When I inquired if she preferred Lahore jail over the one in Rawalpindi, she began to cry and shake her head, gesturing as if she were wearing handcuffs. I asked Kanizan to try to write her responses to my questions. An hour-long effort resulted in a few broken, yet revealing, sentences from her:

“Those people who are cruel, why is it that not even mosquitos bite them? Those who murder are saved. Those who don’t murder live in jails like orphans. I have been in jail for 10 years.”

Kanizan’s mind does not process the temporal gravity of her sentence. She has been in jail three times as long as she thinks she has. Thirty years of incarceration has taken a lot from her, but it is apparent that nothing can dim for her the gross injustice she has faced. Here is Kanizan, who, despite her afflictions, holds on to her wrongful incarceration as one of the last facts she knows.

While nothing can recompense the injustices she has faced, the Supreme Court’s meritorious verdict not only halts further violations of her rights, but reiterates key safeguards protecting other prisoners with mental illness from suffering similar fates.

The judgment has highlighted the developing nature of medical science and, in their wisdom, the Honourable Justices have affirmed that legal jurisprudence must follow these advancements. The directions by the court to update our domestic legislation in accordance with the findings in this case, and in line with humanitarian and scientifically correct terminology, are extremely encouraging.

The judgment states, “we hold that if a condemned prisoner, due to mental illness, is found to be unable to comprehend the rationale and reason behind his/her punishment, then carrying out the death sentence will not meet the ends of justice.”

Since the lifting of the moratorium on the death penalty in 2014, Pakistan, through failure to implement safeguards against the same, has executed prisoners with mental illness. These deaths have been unlawful in light of the explicit bar on the execution of persons with mental illness under international law.

February 10, 2021 is an auspicious day not only for criminal justice and mental health professionals, but also for the citizens of Pakistan, who can anticipate a future where there is greater protection for those with psychosocial disability.

The writer leads the litigation team at Justice Project Pakistan.

Twitter: @sfarrukhsh