On 10 February, 2021, a five-judge bench of the Supreme Court of Pakistan (SC) delivered its landmark judgement in Safia Bano v. Home Department (along with 2 consolidated cases). This judgment held that if a condemned prisoner, due to mental illness, is found to be unable to comprehend the rationale and reason behind their punishment, then carrying out the death sentence will not meet the ends of justice. Therefore, they should not be executed. Currently, Pakistan has the world largest death row population. The SC’s judgement is a promising start towards bringing reforms in the criminal justice system (CJS) as it turns the focus from retributive justice to rehabilitative care.
In coming to its decision, the SC observed that there is no express provision in any Statute or Rules, which places express restriction on the execution of a convict who is on death row and suffering from mental illness. The SC highlighted Section 3(e) of the Resolution 2000/65 whereby all the States who still sustain death penalty were urged “not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person“.
The SC held that not every mental illness will automatically qualify for an exemption from carrying out the death sentence. The exemption will only be applicable in cases where a Medical Board will certify that the condemned prisoner no longer has the higher mental functions to appreciate the rationale and reasons behind the sentence of death awarded to them.
The SC directed the Government to constitute a Medical Board and establish Mental Health Facilities for assessment, treatment and rehabilitation of prisoners and convicts. Further, the SC directed the launch of training programs on forensic mental health assessments for social workers, police and prison personnel.
The SC’s judgement is a promising start towards reforming the CJS. Over 33 crimes (including drug offences and blasphemy) carry the death sentence in Pakistan. On average, it has been sentencing one capital punishment per day since 2004. Currently, 4,688 prisoners are awaiting execution. These also include juvenile offenders, those with physical disabilities and those from economically disadvantaged backgrounds. Additionally, Pakistan’s prisons are often overcrowded with poor hygiene, inadequate food, lack of access to health facilities, etc. This is exacerbated due to the coronavirus pandemic.
As per a report, 83% of death sentences handed down by the trial courts are overturned by the SC and only 3% death sentences are upheld. On average, a prisoner waits for 10 years before their appeal is heard by the SC. The trial courts often fail to follow the law and guidance established by the SC and sentence defendants to death based on inadequate evidence that does not establish guilt beyond a reasonable doubt. As many as 1,828 prisoners on Pakistan’s death row could be innocent of the crime for which they were convicted and sentenced to death. Moreover, research indicates that there is no credible evidence that the death penalty has a greater deterrent effect on crime than imprisonment.
While Art 9 of the Constitution of Pakistan stipulates that, ‘’No person shall be deprived of life or liberty save in accordance with law’’, Art 10A grants the right to a fair trial and due process of the law. Additionally, Pakistan is a State Party to the International Covenant on Civil and Political Rights (ICCPR) which stipulates in Art 6, ‘’(1).. No one shall be arbitrarily deprived of his life…’’ and (2)’’… countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes…’’. Pakistan’s ratification of the ICCRP has created legally binding obligations that are enforceable under international law.
In view of the above, Pakistan should bring reforms in its CJS to remove the systemic flaws that result in tragic and irreversible injustice. This includes, training the lower judiciary, police force and prosecution, providing qualified defense lawyers and developing a scheme for reform or rehabilitation of the criminals. Pakistan should abolish the penalty for non-lethal offences as required under international law and consider reinstating the moratorium on death penalty.