PAKISTAN: Supreme Court shows incompetence in dismissing appeal of mentally ill Imdad Ali

The Supreme Court of Pakistan has upheld the death penalty against a mentally ill person, Mr. Imdad Ali, thereby overturning a previous appeal and a court decision staying his execution. The Supreme Court decision arrives at a time when four United Nations human rights experts have urged authorities in Pakistan to halt the execution of Imdad Ali, a man accused of murder, who has advanced psychosocial disability; the UN experts have argued that Imdad Ali needs to be re-tried in compliance with international standards.

The Supreme Court in its September 27 decision dismissed Mr. Ali’s appeal of clemency and said that a large proportion of Pakistani prisoners suffer from mental illness and that they “cannot let everyone go”. The judges conceded that Imdad was mentally ill but concluded that they are dismissing the appeal because the case had already been considered by the court and, in their view, nothing has changed.

Mr. Ali was about to be executed on September 20 but his lawyer filed an appeal for clemency, given Mr. Ali had been suffering from schizophrenia at the time of his crime, and continues to suffer from the same. (See this letter for background)

The UN Rights experts say that a year before the killing, Mr. Ali had been examined by a doctor and referred to a mental health facility for treatment. His psychosocial disability was raised at his first trial, but his condition was not mentioned in the court ruling sentencing him to death.

The UN experts that have argued for a retrial in compliance with international standards are: Agnes Callamard, Special Rapporteur on extrajudicial, summary or arbitrary executions; Juan E. Méndez, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; Mónica Pinto, Special Rapporteur on the independence of judges and lawyers; and Dainius Puras, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

Mr. Harriet McCulloch, Deputy Director with human rights group Reprieve, has stated,

“It is indisputable that Imdad suffers from serious mental illness. There is therefore no doubt that, should Pakistan execute him, it will be committing a grave violation of both Pakistani and international law. It is shocking that the system has failed Imdad at every turn – right the way up to the Supreme Court. The Pakistan Government must immediately halt Imdad’s execution, and undertake a comprehensive review into how someone who is clearly mentally unfit to be executed has been allowed to come so near to the noose”.

Ali’s wife Safina Bano has also reportedly told that “My husband doesn’t know what’s going to happen to him, he has no sense where he is living and what he is doing,”

Reprieve says that Ali’s condition has deteriorated over the course of his imprisonment. He now faces a new ‘black warrant’, which could result in his being hanged as early as Tuesday next week.

The UN experts have said in their joint statement that the courts have disregarded medical reports asserting that the defendant has a psychosocial disability, and have not conducted an independent evaluation of his mental health status. “Implementing the death penalty under these conditions is unlawful and tantamount to an arbitrary execution, as well as a form of cruel, inhuman or degrading punishment”, state the UN experts.

The UN human rights experts recalled that persons with psychosocial disabilities frequently face the risk of being sentenced to death and executed, in breach of international standards.

“States must do their utmost to address this risk, including by providing accommodation during all phases of legal proceedings, and by granting adequate protection from any form of discrimination against them because of their mental health condition,” said the experts.

“We are concerned at Mr. Ali’s deteriorating psychosocial condition, among other things, due to lack of appropriate treatment and reasonable accommodation in detention,” the experts noted, highlighting that the denial of reasonable accommodation in detention can be considered a form of discrimination, as well as cruel, inhuman or degrading treatment.

The Asian Human Rights Commission (AHRC) deplores the decision of the Supreme Court to proceed with the hanging of a mentally ill man; it will set the wrong precedent in the annals of the judicial history and shall amount to judicial murder. How can the Court, being the guardians of the accused, allow such barbarity in the name of law? How can the State hang a person who is suffering from mental illness, worsened due to neglect by jail authorities?

The hanging will be a clear violation of the UN Safeguards guaranteeing protection of the rights of those facing the death penalty.

Paragraph 3 of the UN Safeguards provides:

“Persons below 18 years of age at the time of the commission of the crime shall not be sentenced to death. The death sentence shall not be carried out on pregnant women, on new mothers, or on persons who have become insane.”

Pakistan has a shameful history of hanging the mentally and physically challenged. For instance, Abdul Basit, a wheelchair-bound death row prisoner at Lahore Jail, was convicted and sentenced to death for murder in 2009. In 2010, he contracted tubercular meningitis in prison. Due to neglect of the prison authorities, he became paralyzed from the waist down. Despite a government-appointed medical board having confirmed the continuing severity of his condition, a “black warrant” was issued for his execution.

In the case of Abdul Basit, the Supreme Court also dismissed his appeal of clemency, but he was saved because of the jail problem of hanging a crippled man on his wheel chair. The jail staff was confused about making Basit stand for his hanging, and then they stopped it and sent an application to the President of Pakistan that till the jail authorities do not make special arrangements, they cannot hang him.

The State has been negligent in its duty of providing “due care” of prisoners and has been hanging them in utter disregard of international covenants and conventions. It is unfortunate that with the lifting of the moratorium on death penalty, the fundamental right to life has taken a back seat, giving way to arbitrary killings by the State.