A little over 10 years ago, I founded a non-profit legal action firm to protect prisoners. Many in the legal profession who I looked up to thought, “pagal ho gai hai” (she’s lost her mind).
At the time, Justice Project Pakistan (JPP) set out to help prisoners on death row — and those who had been wrongfully sentenced. Pakistan’s death row was, and still is, crammed with prisoners with psychosocial disabilities. Which is why we heaved a huge sigh of relief earlier last month, when a landmark judgment by the Supreme Court of Pakistan finally outlawed the use of capital punishment on severely mentally ill prisoners.
But it hasn’t been an easy journey to go from convincing people that I wasn’t pagal or insane for trying to tell every court in the land the same about my clients, some of whom had severe mental illness and no business being in jail, let alone on death row.
This, I hope, is the beginning of the end — the end of the trial of a “lunatic.”
THE CASES OF KHIZAR HAYAT AND KANIZAN BIBI
JPP has come a long way since it first started off in terms of its scope of work. We now also represent Pakistanis jailed abroad, victims of torture, juvenile offenders, and those with physical and psychosocial disabilities. According to JPP’s research, Pakistan has the world’s second-largest death row population, and so our work on death row usually intersects with some or all of these categories.
I became aware of the nexus between mental illness and death row quite early on, when I met my second client after founding JPP, Khizar Hayat. During a visit to the jail, his mother had walked up to my colleague and I and pleaded for us to meet her son. Confused and misunderstood in prison as well as the world outside, he had been violently assaulted by his fellow inmates when I first laid eyes on him. His face was scarred.
Khizar suffered from acute schizophrenia and would have directly benefited from this judgment, were he still alive today. But after surviving four execution warrants as well as several assaults in prison, he died in 2019, shackled to a hospital bed with his mental and physical faculties completely ravaged.
That the Supreme Court of Pakistan now recognizes the suffering of prisoners like Khizar and Kanizan is a momentous occasion. The directives issued by the court aim to ensure protections for all prisoners with mental illnesses, not just those facing the death penalty.
We were heartbroken. Many lawyers and investigators at JPP had spent countless hours with Khizar visiting him in prison or sitting by his bedside at the hospital. His mother was inconsolable. Who wouldn’t be? She had dreamt of Khizar taking care of her when she grew old and frail. Instead, she was made to live through the nightmare of burying him.
Losing Khizar strengthened our resolve to continue fighting for other mentally ill prisoners on death row, like Kanizan Bibi. She is one of the three prisoners mentioned in the Supreme Court petition and was arrested as a juvenile, severely tortured in police custody, and then forced to confess to murder. As a result, Kanizan has spent thirty years on death row. Even though she was eventually diagnosed with schizophrenia in 2000, she never received the necessary medical treatment. Over the past decade, she has been unable to speak because of the trauma she has endured in prison. It’s important to note that a life sentence in Pakistan equals 25 years and is often reduced to 15 years with remissions. Under the directives of the Supreme Court, she will now be shifted to a psychiatric facility where she can be provided proper mental healthcare till she is well enough to be released into the care of her family.
THE COLONIAL LEGACY
That the Supreme Court of Pakistan now recognizes the suffering of prisoners like Khizar and Kanizan is a momentous occasion. The directives issued by the court aim to ensure protections for all prisoners with mental illnesses, not just those facing the death penalty. The judgment also states that the federal and provincial governments conduct training aimed at increasing awareness of mental health issues for all actors involved in the criminal justice system, such as social workers, police, and members of the judiciary.
Mental illness carries an immense stigma in Pakistan. We hope these trainings will help sensitize stakeholders to people with psychosocial disabilities: how to recognize some of them, what to do with them (i.e., refer them to a specialist), and understand why they are viewed as less culpable and more deserving of protection. Once put into place, these protections will lessen the number of indigent prisoners who slip through the cracks due to lack of knowledge and acceptance of their mental illness by those meant to protect them.
The jail manual in use today is based on the laws of the 1984 Prisons Act and the 1900 Prisoners Act, both pieces of legislation dating back to when the sub-continent was still a British colony. These two laws, which collectively recommend the Prison Rules, are reflected in the jail manual, and refer to mentally ill prisoners as “filthy” and “noisy,” also stating that all mentally ill prisoners are inherently dangerous until proven otherwise.
Britain’s Lunacy Act of 1845 was brought into Indian law in 1912, which remained in place in both India and Pakistan well after the 1947 Partition of the sub-continent. In Pakistan, this draconian law regarding mental health remained in place until 2001, when the Mental Health Ordinance came into effect. These colonial laws impacted Pakistani legislation and documents to a great extent, with the word “lunatic” being used to describe mentally ill prisoners in both of Pakistan’s primary legislatures dealing with criminal offenses, such as the Pakistan Penal Code (PPC) or the Code of Criminal Procedure (CrPC).
THE LANDMARK DECISION
The recent Supreme Court judgment acknowledges that these terms may evolve with the developing nature of medical science. Recognizing the importance of language to reduce the stigma is a huge step — one we hope will resonate through our society in general.
This judgment not only impacts the lives of mentally ill prisoners currently on death row, but also sets a precedent by outlining guidelines to protect those with psychosocial disabilities to be handed the death penalty in the future. It brings Pakistan in line with the recommendations of the UN Human Rights Committee that oversees Pakistan’s compliance with the International Covenant on Civil and Political Rights (ICCPR), which Pakistan is a signatory to.
In the days following the judgment, my colleagues and I have felt a surge of emotions ranging from elation to relief. We only wish it could have saved Khizar.
Khizar, this one’s for you.