Saving Khizar: Mentally ill defendant faces execution in Pakistan

Khizar Hayat did not know how close he came to death earlier this month. It’s not as if nobody told him. He just cannot understand what an execution is.

In fact, even though he has been on death row since 2003, he does not know why he is in jail. The anti-psychotic medication he has been on has proven to be less and less effective with each passing year. Solitary confinement has only made his condition worse.

On Friday, Jan 11, the government of Pakistan issued Khizar’s execution warrant. He would be executed before sunrise on Jan 15. His mother, Iqbal Bano, was inconsolable. This is, unfortunately, not the first time Iqbal Bano has been dragged through this ordeal. Khizar was issued two execution warrants in 2015, one in 2017, and was about to earn the macabre status of being Pakistan’s first execution of 2019.

Every single one of those execution orders directly contravenes Pakistan’s international human rights obligations, domestic laws and expert medical opinion.

So why do they keep getting issued?

In April 2016, before he was chief justice, Justice Saqib Nisar told a room full of psychiatrists that the laws must be tightened to protect the mentally ill.

But in the same year, the Supreme Court dismissed the appeal of Imdad Ali, another death-row prisoner with a severe mental disability on the premise that schizophrenia is “not a mental illness”. Criticism stemming from the public’s more straightforward conception of mental illness saved Imdad’s life at the eleventh hour.

In May 2017, Justice Umar Ata Bandial also stated at a conference that it would “be unfair to punish the mentally ill”.

These were encouraging indicators that perhaps, finally, it was being recognised that mentally ill defendants lack the criminal intent to warrant the same punishment as the mentally able.

In April 2018, Chief Justice Saqib Nisar, while hearing the cases of Kanizan Bibi and Imdad Ali, made headlines across Pakistan by categorically ruling out execution for prisoners with mental disabilities. “Beyond sense or reason,” he rightly declared in open court, “that we hang the mentally ill.” He immediately ordered that Kanizan be transferred to a secure mental health facility to get the treatment she needs. Fresh medical reviews have been ordered for both, and the case has been dubbed “precedent-setting” for the rights of the mentally disabled.

While these two cases remain pending before the Supreme Court, in December 2018, the Lahore High Court dismissed a petition seeking Khizar’s transfer to a mental health facility. It stated that “emotional disorders of like nature were not viewed as factors sufficient enough to impede execution”. Not only did this clear the pathway to Khizar’s execution but also exposed demonstrably mentally ill prisoners like Kanizan, Imdad and Saleem to the same fate.

Luckily, the National Commission on Human Rights was quick to act. It issued an order restraining the relevant authorities from scheduling Khizar’s hanging until the matter is decided by the Supreme Court. Jail authorities were not only copied in the order that was issued, they were also present at the hearing. They were party to the statements. They cannot claim ignorance.

The government of Pakistan should use this case as an opportunity for introspection. When the jury was, quite literally, still out on the matter of mentally ill prisoners — how could the lower courts so openly disregard the Supreme Court? How were the orders of the Pakistani government’s foremost human rights body defied so blatantly by jail authorities?

This breakdown of communications can prove to be deadly. Had the campaign mobilised by Justice Project Pakistan not caught the attention of the chief justice, had voices of influence not been moved enough to amplify their platforms and privilege, had the deluge of appeals to the president to accept his appeal for clemency stemmed, Khizar would have been a dead man by now.

Every prisoner with a history of mental illness should have their sentences commuted without delay. This is the very least that Pakistan’s obligations under the International Covenant on Civil and Political Rights demand.

President Arif Alvi has Khizar’s mercy petition before him. It contains details of his mental illness, the laws that confirm that his execution would be wrongful, as well as a reminder of Pakistan’s international commitments. It makes for a useful and life-saving document.

The right to seek pardon belongs to the people. It is not just a private act of grace but a meaningful safeguard against any mistakes that might have been made during sentencing. And in Khizar’s case, it is exactly what justice looks like.

Rimmel Mohydin is regional campaigner for Amnesty International South Asia.

Twitter: @Rimmel_Mohydin

Originally published by Dawn, January 17th, 2019.

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Katie Young, Online Editor