In his famous judgement Justice Manzoor Ahmed Malik cited that “if a condemned prisoner, due to mental illness is found to be unable to comprehend the rationale and reasons behind his/her punishment, then carrying out the death sentence will not meet the ends of justice”. But what if our justice system is so old and creepy that it can’t decide how to treat the offender who is mentally ill or can’t even decide who is mentally ill or not. In this article we’re going to discuss what mental illness is and what are legal considerations for mentally ill prisoners and defendants in justice system of Pakistan?
According to American Psychiatric Association mental illness are health conditions involving changing in emotions, thinking or behavior (or combination of these). Mental illness can be associated with distress and problems functioning in social, work or family activities. Around the world there are various categories of mental health disorders but we’re dealing with two types of mental health issues which are mental illness and insanity.
The mental health ordinance 2001 categorizes mental illness into three groups:
Mental impairment: Which can be described as mental state that has been retarded or incompletely developed and involves significant impairment of social functioning and aggressive behavior of the concerned person.
Severe personality disorder: This refers to a persistent disability or disorder of the mind that causes the affected person to act dangerously, irresponsibly and aggressively. This mental order may or may not include a severe impairment of intelligence.
Severe mental impairment: It denotes a mental condition of incomplete or retarded development of the mind, including a significant impairment of cognitive and social functioning, It is also associated irresponsible and aggressive behavior on the part of person in question.
Black’s law dictionary has given a definite definition of Insanity which is “ Any mental disorder severe enough that it prevents a person from having legal capacity and excuses the person from criminal and civil liability. Where as English law laid down two conditions that must be met for a person to be considered insane:
A disease of the mind.
It is caused by the defect of the reason at the time of the commission of an offence.
In Pakistan law where the whole Chapter 34 of Criminal code of procedure is about the insanity but specifically Insanity is defined in section 84 of Pakistan Penal Code which states that “ nothing is a offence which is done by a person who at the time of doing by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he doing what is either wrong or contrary to law.
History of laws for mentally ill defendants dated back to Act(1912) which was introduced during British rule. However, the 1912 Act had several flaws, including the use of outdated terms such as “lunatic” and “asylum.” The Mental Health Ordinance of 2001 aimed to rectify these issues by replacing such terms with more medically acceptable and relevant ones, like “health facility” and “mentally disordered person.”
One significant addition in the Mental Health Ordinance was a comprehensive definition of informed consent for the treatment of mentally ill individuals. The Ordinance stated that patients must be informed about the risks, alternative treatments, success probabilities, and treatment costs for their consent to be considered valid and informed. This was an important development since the previous Lunacy Act of 1912 did not provide for informed consent.
The Act of 1912 primarily focused on the punishment criteria for individuals with mental illness rather than their rehabilitation. In contrast, the Mental Health Ordinance of 2001 aimed to shift the focus from punishment to rehabilitation. For instance, while the Lunacy Act allowed for a maximum detention period of 30 days for assessment, the Mental Health Ordinance required necessary care, treatment, and psychiatric evaluation within 72 hours of arrest.
With the 18th Amendment to the Constitution of Pakistan, health became a subject under the authority of provincial legislatures. This led to the dissolution of the Mental Health Authority, and the responsibility was transferred to provincial assemblies. Sindh province took the lead by enacting the Sindh Mental Health Act in 2013, which mandated mental health assessments for mentally retarded prisoners and set requirements for their well-being. However, there are still significant gaps and loopholes in the legislation that impede the welfare of mentally ill individuals in the Criminal Justice System of Pakistan.
The existing legal framework does not provide adequate safeguards for mentally ill individuals detained under blasphemy laws, raising concerns among human rights organizations about their persecution. The Punjab Mental Health Act of 2014, enacted by the Government of Punjab, had minimal consultation with field experts and mental health professionals. Meanwhile, legal ambiguity persists in Khyber Pakhtunkhwa and Baluchistan provinces regarding mental health legislation.
Although mental illness is the issue of great importance but it always has been neglected in Pakistan. It took a long time to develop the laws on this subject . There are various report issued on this subject such as J. P Pakistan( 2021) and Zulfiqar(2018) which have discussed the latest developments on laws regarding mentally ill defendants and prisoners. They have also discussed the cases of Safia Bano , Khizar Hayat, Ghulam Abbas, Imdad Ali and Kanizan Bibi and their landmark judgments. These reports also discussed that how these prisoners were mentally ill and despite of this they were kept in Jail and no one believed that they are mentally ill.
With that Pakistan is the signatory of various conventions which include Convention on the rights of persons with disabilities(CRPD) , The United Nations convention against torture and other cruel, Inhuman or degrading treatment or punishment (UNCAT) The International Covenant on Economic, Social and Cultural rights( ICESR) and other which ensure the protection to mentally ill persons but despite being signatory of these conventions Pakistan has totally failed to implement and follow such conventions. When we look depressed into the International covenant on civil and political rights(ICCPR) it explicitly prohibits the states to award the death penalty to a person suffering from any mental or intellectual disabilities or to execute any such person . It emphasize the states to take proper measurements for the treatment and confinement of mentally ill prisoners.
Where an International covenant on economic, social and cultural rights (ICESCR) has also necessitates that it is the right of everyone to enjoy the highest attain standard of physical and mental health that’why it is the duty of state to take specific measures to give health facilities to citizens. It also specifies that government is obliged to give the health facilities to prisoners. General Assembly of United
Nations enacted (CRPD) who protects the rights of people who has mental and physical disabilities.
Islam has also laid down various principles which dictates that insane person can’t be punished. According to Islamic principles to prove that certain crime is committed the Mens Rea (the criminal intent) must be determined but insane person due to his intellectual disability and competence lack such intent.
In Islam there are three characteristics to prove a person insane (Majnun in Shariah) which are ability to reason( Agil), the capacity for deliberate intent(amad), and the ability to be fully responsible (Mukallaf). If he lack these characteristics then he will be considered as insane( Majnun). Islamic law has protected the insane persons. The scholars of Islam are agreed on that a person who commits the crime in his unconsciousness is not liable for his actions. Islamic law is also against the capital punishment on the persons who are mentally ill and such persons can be executed because it will violate the principles of Shariah.
There are two land mark judgements which can be considered as turning point in development of laws on this subject of mental illness. These judgements were given in the case of Safia bano and Khizar Hayat, Ghulam Abbas, Imdad Ali and Kanizan Bibi. In these judgements Supreme Court said that the due process of law must be provided to the people suffering from mental illness at every stage of criminal justice system of Pakistan and mentally ill persons can’t be executed because they can’t understand the rationale behind the sentence . So following are the important developments which are helpful to mentally ill prisoners and defendants were made due to these judgements:
Firstly Supreme Court emphasized that when accused is presented before the Magistrate or Judge then such Magistrate or Judge must not depend on the subjective assessment of the mental state of the accused. The Judges must depend upon their own opinions and propositions with respect to defendant’s conduct and demeanor. Most important is that preference must be given to the objectivity and relevant material present before the court. Further Supreme Court said that the courts are not forbidden to establish that weather the defendant is suitable for the trail or not.
Secondly, the Supreme Court of Pakistan has directed trial courts to establish Medical Boards consisting of psychologists and psychiatrists from government hospitals to assess the mental capacity of defendants. This shift from subjective opinions to evidence-based evaluations is a positive step for protecting the rights of individuals with disabilities. However, Pakistan faces a shortage of forensic psychiatrists and psychologists, with limited facilities and funding for mental healthcare. The absence of a prescribed timeframe for forming Medical Boards may cause trial delays. Nevertheless, the constitution of Medical Boards will provide crucial medical evidence, ensuring fair trials and protecting the rights of mentally challenged defendants.
Thirdly, the Supreme Court of Pakistan expanded protection against execution for prisoners who develop mental illness while on death row. A separate medical board, consisting of psychologists and psychiatrists from government hospitals, is established to determine if a mentally ill prisoner is fit to be executed. However, the court did not provide a specific timeframe for conducting the assessment. It is recommended that the examination be conducted promptly when signs of mental disorders emerge before execution. The success of this process relies on sufficient resources, knowledge, and training to identify potential mental disorders.
Fourthly, The Supreme Court of Pakistan emphasized the importance of objective evaluation and access
to pertinent medical information in assessing the defendant’s mental health. Previously, such access was limited to mercy petitions, disregarding the rights of the defendant, legal counsel, and their families. This restriction violated the fundamental right enshrined in Article 4 of the Constitution. Public documents, including medical records, should be provided upon request, as stated in Qanun-e-Shahadat Order 1984 and the Right to Access to Information Act 2017. The Lahore High Court further established the right of defense lawyers to access relevant medical records in Khizer Hayat v. Home Department and others. Withholding such crucial information undermines fair trial rights, due process, and leads to a miscarriage of justice.
Fifthly, The establishment of forensic psychiatry facilities for mentally ill prisoners is crucial, and the Supreme Court’s commitment to this cause is commendable. However, the current reality is that very few prisoners are transferred to medical facilities for treatment due to a lack of training and resources in government hospitals. The demand for forensic psychiatry services is increasing, surpassing the available supply. Overcrowding in prisons and a high prevalence of mental illness among inmates highlight the urgent need for state-of-the-art forensic psychiatric facilities. Currently, most forensic psychiatric units are located in mental hospitals and prisons, with a lack of specialized and independent high-security units. To address these issues, the government must prioritize this field, allocate more funding, and demonstrate greater commitment.
Lastly, A crucial aspect of implementing the judgment is combating stigma associated with mental health issues through anti-stigma initiatives. This requires a collective effort involving all stakeholders, including religious seminaries and local psychiatric bodies. Raising awareness and disseminating factual information through various media channels, both print and digital, can help challenge public stereotypes and promote a more understanding and accepting attitude towards mental health problems.
The following are recommendations which can be proposed to address the issues related to mental health and the criminal justice system in Pakistan. Firstly, reforms are needed in the process of arrest, including adherence to legal procedures and psychological assessments at the time of arrest and admittance to prison. Secondly, an evidence-based approach should be adopted to evaluate mental health throughout the criminal justice system. Thirdly, mental illness should be considered during trial, and medical records should be provided to the defendant’s legal counsel and family upon request. Additionally, separate pre-sentence hearings should be conducted, and the exercise of the President’s power to grant pardons should be more transparent and consultative. Public awareness initiatives should be undertaken to combat stigma surrounding mental health issues.
In the last the SafiaBano and other cases have brought significant progress in safeguarding the rights of mentally ill individuals in Pakistan. These landmark judgments highlight the need for reforms in the criminal justice system, including the establishment of medical boards, access to medical records, and the training of stakeholders. While these judgments align with international standards and Islamic principles, the implementation of these recommendations remains a challenge. However, by fully implementing the suggested reforms, the rights of mentally ill persons can be protected, ensuring their exemption from criminal responsibility and promoting a fair and just system.
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