Daily Times

The Supreme Court of Pakistan decided last week that the state could proceed with the execution of 50-year-old paranoid schizophrenic patient, Imdad Ali. His lawyers said that they would ask the Supreme Court to stay the execution and to review the case on grounds that Imdad Ali was mentally incompetent, and that executing him would violate his constitutional rights. The court must review the case. Issues at stake are not only Ali’s life but also two differing interpretations of what constitutes competence, the other is the Supreme Court’s verdict that schizophrenia is not a permanent mental disorder.

The US Supreme Court ruled in 1986 that it is unconstitutional to execute someone who lacks the “ability to comprehend the nature of the penalty.” In 2007, the court clarified that a “prisoner’s awareness of the state’s rationale for an execution is not the same as a rational understanding of it,” and that evidence of psychological dysfunction may result in a “fundamental failure to appreciate the connection” between his crimes and his execution.

Yet this is not the way Pakistan Supreme Court sees it. The honourable bench has taken a different view: “The prognosis has been improved with drugs, by vigorous psychological and social managements, and rehabilitation.” It [schizophrenia] is, therefore, a recoverable disease, which in all cases does not fall within the definition of a ‘mental disorder’.

It can be interpreted hence that law requires only ‘awareness’, and Ali has recovered from schizophrenia and knows he committed a murder. On that basis, a three-judge bench of the Supreme Court, led by Chief Justice Anwer Zaheer Jamali, found that Ali is competent and could be executed, and upheld that view stating that no “stricter standard” of competence or definition of mental disorder is required. Ali’s lawyers, however, say he does not understand crime or punishment, and his doctors say he is delusional, hears voices in his head, and suffers from a persecution complex.

Supreme Court’s “recovered and hence punishable” test is plainly inadequate because it assumes that Ali has a kind of understanding of his situation that his delusions mentioned in the psychiatric evidence make impossible. Mistaken findings of competence and reserved opinions about mental illnesses like these have allowed countries to execute scores of people with severe mental illnesses, including schizophrenia. Whether or not authorities execute a schizophrenic man is not simply about that man and his crimes. It is about the moral ground on which Pakistan’s legal system rests. Beyond the Supreme Court’s ruling is the law of the diminished responsibility, which should be applicable to Imdad Ali. The court now has a solemn obligation to explain why courts’ standard clearly violates the definition of schizophrenia as a mental disorder, and to block this execution.

That is essentially what the United States Supreme Court ruled in the 1986 case of Ford v. Wainwright. Citing centuries of English common law precedent, the court pronounced that a civilised society could not condone the execution of a person with so weak a grasp on reality that killing him has questionable retributive value, presents no example to others, and thus has no deterrence value, and simply offends humanity. Whether the aim is to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the case remains that in doing so it would violate Pakistan’s obligations under the United Nations treaty, the International Covenant on Civil and Political Rights. The entire mental health professional fraternity forbids it as a cruel and an unusual punishment.

In many countries, there continue to be conflicting opinions and mechanisms regarding the appropriateness of treatment or punishment for mentally ill individuals who commit crimes. Should mentally ill individuals who commit crimes be referred to psychiatric treatment or should they be punished? Although this outcome may be legally possible if the mental state of the patient has improved, and potential danger and threats to public safety remain primary concerns. There is no easy solution to this dilemma. The judges determined that Imdad Ali was mentally ill but guilty, because he understood the nature and meaning of his actions, and he knew his actions were wrong. Guilty but mentally ill is not a defence, but rather a court ruling that the individual is guilty and a candidate for punishment. The emphasis is on punishment and consideration of public safety and not psychiatric treatment. So how do judges decide whether a schizophrenic prisoner is too delusional for a civilised society to execute? Often, it turns out, they rely on psychiatrists whose recommendations seem to have little basis in science that otherwise would seem to contradict the dictates of the Supreme Court.

In this case, it seems that the intentions of the court concerned allocation of criminal responsibility to a schizophrenic patient. Over time, the pendulum has swung between punishment and treatment, between complete exemption from responsibility and limiting the insanity defence; however, testimony regarding mental state is still permitted and mens rea must still be proved.

How then can the matter of treatment versus punishment be settled, and the right of the patient to be treated versus the right of the public to be protected? Medically, there is room for the narrow approach when there is clear evidence that the crime is directly related to the mental illness. However, this could create a situation in which a person who is no longer psychotic would have to remain in a secure hospital.

The dilemma is of how to treat a forensic patient who suffers from paranoid schizophrenia (since forensic psychiatry is a missing discipline in Pakistan), and had committed a crime and was found responsible for his actions after his recovery from the psychotic state, and to prevent mental relapse with danger to the public. In Pakistan, there is no legal recourse for prevention, a subject that may necessitate legislation. If the individual is no longer ill but is still dangerous, should he or she remain in the hospital or be sent to the death row? The opinions are divided, although many believe hospitalisation is most appropriate since the core of the problem is the illness.

The writer is a professor of psychiatry and consultant forensic psychiatrist in the UK. He can be contacted at fawad_shifa@yahoo.com