set out in Pakistan's Criminal Procedure Code. The Code provides a number of potential mental health
defenses, and requires that the magistrate and the Court of Sessions note and postpone further
proceedings pending a medical examination if there is “reason to believe that the accused is of unsound
mound” or “[i]f any person . . . appears to the Court at his trial to be of unsound mind.” Such
discretionary judgments, especially where the defense of mental illness was unsound mind 254. Such
discretionary judgments, especially where the defense of mental illness was not raised by defendant's
counsel, are inadequate to ensure mentally ill defendants are properly protected. Consequently, “given
the generally poor psychiatric services available in the country and the dearth of training in the provision
of expert psychiatric evidence in courts,”255 mental health defenses are rare. The Mental Health
Ordinance, enacted in 2001, provides for the establishment of special security forensic facilities for
mentally ill prisoners.256 However, in reality, they are rarely transferred to forensic facilities and instead are
kept in detention in death row cells without requisite treatment. Khizar Hayat was sentenced to death in
2003. He was diagnosed as a paranoid schizophrenic in 2008 by jail authorities and suffers from severe
delusions. Despite facing multiple attacks in prison, Khizar has not been transferred to a psychiatric
facility. Instead, he remains in effective solitary confinement in the jail hospital.
Muneer Hussein's experience with his counsel demonstrates how the impact of incompetent
representation is amplified for those individuals suffering from mental illness—and may even obscure a
defendant's mental illness from judicial notice for years to come. Muneer's trial counsel was assigned to
the case just before he was supposed to begin cross-examination. As a result, he knew nothing about
Muneer's family background or mental illness and did not move to have Muneer examined by a medical
board. Had Muneer's lawyer had the competence, or the time and resources, to reach out to the
defendant's family, he might have learned from other family members about Muneer's long history of
mental illness.
Even when an individual on death row receives a mental illness diagnosis, the death sentence may not be
lifted. During her incarceration, Kanizan Bibi's257 mental health has deteriorated significantly over the
twenty-six years she has been on death row. For the last eight years, she has been mute; at times, she is
unable to feed or clothe herself; and when family members visit, she does not recognize them. Yet, after
two medical boards diagnosed Kanizan as schizophrenic, the President rejected her mercy plea. She
could receive a black warrant at any time.
The dearth in mental health resources interacts troublingly with another critique of the capital
punishment regime in Pakistan: individuals who are mentally ill are overrepresented in the group of
defendants prosecuted under the blasphemy laws of Pakistan. As one scholar has noted, “[i]ndividuals
with psychotic disorders, such as mania and schizophrenia, can present symptoms of grandiose and
bizarre delusional systems of being of divine origin, behavioral disinhibition and lack of insight, which
place them at risk of prosecution under these laws.”258
A “MOST SERIOUS CRIME”:
PAKISTAN'S UNLAWFUL USE OF THE DEATH PENALTY 33
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