Abdul Basit – The paraplegic death row prisoner

Abdul Basit, a former administrator at a medical college, was sentenced to death in 2009. On 1 August 2010, whilst in Central Jail, Faisalabad, Basit contracted tubercular meningitis which, due to the negligence of the jail authorities, has left him paralysed from the waist down. Despite being unable to stand, and reliant on a wheelchair, Abdul Basit has been scheduled for execution three times since July 2015; coming within hours of execution on each occasion.

On 24 November  2015  Basit’s  execution  (scheduled  for  dawn  on  25  November)  was stayed with just hours to go by the President of Pakistan. A statement issued by the Presidency on 24 November 2015 read: “The president has ordered an inquiry into the health condition of the convict” and added that. “The president said that the basic human rights must be upheld at all costs”. 1 Following the expiration of this stay, a further, three- month, stay of execution was issued on 25 January 2016. This stay is due to expire on or around 23 April 2016. If further action is not taken before this date, then Basit may once again face the hangman’s noose. Justice Project Pakistan (JPP) and Reprieve are calling on the international community to  directly  request  that  Abdul  Basit  be  granted clemency  and  his  death sentence  be commuted.

The legal basis for commutation

Article 45 of the Constitution of Pakistan provides that “The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.”  This power is absolute and can be exercised in any case at any time. The President’s power to pardon under Article 45 mirrors the provision of Article 6(4) of the International Covenant on Civil and Political Rights (ICCPR) which states: “Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.”

Were Basit’s execution to proceed it would constitute a serious violation of Article 7 of the ICCPR, which prohibits the use of torture and cruel, inhuman and degrading treatment   or   punishment,   a   prohibition   mirrored   in   Article   14   of   Pakistan’s Constitution. The Human Rights Committee has interpreted this right to mean that executions must be carried out in a manner that includes the least possible pain and suffering.

The Pakistan Prison Rules 1978 govern the manner and procedure to be adopted at the time of executing a condemned prisoner, and contain provisions specifically designed to avoid the possibility of a botched execution. The Rules contain procedures which simply cannot be carried out in respect of a disabled prisoner, so were the execution to go ahead on the basis of the Rules as they currently stand it would be arbitrary in the extreme, constituting a violation of the right to life, protected by Article 6 of the ICCPR and by Article 9 of the Constitution of Pakistan. There is simply no way that Pakistan can devise a procedure that will allow a paralysed prisoner like Abdul Basit to be hanged in a manner that complies with the requirements of Article 7 ICCPR and Article 14 of Pakistan’s Constitution. In light of this, and the violations of his basic human rights that Basit has already suffered at the hands of the jail authorities, whose negligence has led to his permanent disability, Basit’s execution cannot now be permitted to proceed. Commuting Abdul Basit’s death sentence once and for all is the only way Pakistan can uphold the President’s promise that “basic human rights will be upheld at all costs”.

Basit’s illness and treatment

Basit  was  first  arrested  in  2008  and  spent  the  first  18  months  of  his  detention  in Sahiwal Jail, before being transferred to Central Jail, Faisalabad in 2010. That same year riots broke out in Faisalabad Central Jail after prisoners started protesting against the use  of  torture  and  abuse  by  the  Jail  Superintendent.  As  a  result,  many  prisoners including Basit were confined to the infamous “punishment wing” for months, where they were held in fetters in filthy and unhygienic conditions. In August of that year, Basit became  ill  with  a  fever.  His  condition  went  untreated  for  several  weeks  until  it eventually became so severe that he fell into a coma.

When Basit was finally taken to hospital, he was diagnosed with tubercular meningitis. The illness caused him to lose all movement in his lower limbs, confining him to a wheelchair. A Medical Board conducted an assessment in April 2012 and concluded that he was suffering from paraplegia and long term complications of spinal atrophy. More recently a new medical board was convened at the order of the Lahore High Court. In a report dated 1st August 2015, the Board concluded that Basit was “permanently disabled…He is likely to remain bed-bound for the rest of his life.”

Until recently, Basit’s conditions of confinement were truly appalling. He was confined to lying on the floor of his cell, reliant on Jail officers to assist him with even the most basic personal hygiene. His lawyers have found that he is not regularly moved and as a result has suffered from bedsores. He also suffers from fecal and urinary incontinence. Despite the horrendous conditions which Basit endured on a daily basis, he strived to maintain his humanity, occupying himself by practising calligraphy, copying out verses from the Qur’an.

Three execution warrants in five months

Basit was sentenced to death in 2009 for the murder of the uncle of a woman he was in a relationship with. He has always maintained his innocence. The first warrant for his execution  was  issued  in  July  2015,  scheduling  his  hanging  for  29  July  2015.  The execution  was  stayed  at  the  eleventh  hour  by  the  Lahore  High  Court,  after  Basit’s lawyers  filed  a  writ   petition  challenging  the  legality  of  Basit’s  execution.  After arguments  were  heard  in  the  case,  the  petition  was  eventually  dismissed  on  1 September 2015. In the judgment, the Lahore High Court refused to hear arguments based on human rights principles, even going so far as to say that “international laws should be set aside” in determining whether to proceed with the hanging.

A new warrant scheduling Basit’s execution for 22 September was subsequently issued, but that execution was also stayed by the judicial officer and medical officer deputed to oversee the hanging. On 21 September, the Supreme Court of Pakistan had issued an order disposing of an appeal from the order of the High Court. The Court stated that the execution could only be conducted in strict compliance with the Pakistan Prison Rules – which set out the procedure for carrying out executions. The jail authorities determined that there was no way to carry out the execution in accordance with the Rules and stayed the execution pending further instructions on how to proceed.

Following this stay of execution, a mercy petition to the President was been submitted on Basit’s behalf by his counsel at the Justice Project Pakistan. The petition argued that Basit’s execution, which has been twice scheduled and twice postponed, cannot be conducted in accordance with existing Pakistani law and if the hanging proceeds Basit is at risk of a botched execution and a horrendous death. Basit’s current fate is rendered even worse by the two previous attempts to hang him – the last ending just hours before his death was scheduled to take place, with Basit looking up at the gallows from which he was set to hang, his hands tied behind him as he sat on his wheelchair.

On 15 October 2015, a letter was forwarded to Basit’s counsel from the Presidency, which  requested  that  the  Ministry  of  Interior  consider  the  pending  mercy  petition, which it described as “self explanatory”. No further correspondence has been received dismissing the petition. Following the third attempt to hang Basit, requests for mercy have once again been repeated by his family, his lawyers, civil society and the international community. Basit has already suffered too much at the hands of the State and his suffering must now be brought to an end.

The Government of Pakistan’s Policy on Clemency

When the resumption of executions was originally announced in December 2014, a statement indicated that the Prime Minister and President had agreed that mercy would not be granted in a single case.3 Over the past fifteen months, JPP and Reprieve have been monitoring the use of the Presidential power to pardon under Article 45 and have not identified any cases in which clemency was granted and a prisoner’s death sentence fully commuted.  More recently, a source in the Ministry of Interior confirmed during the course of an informal conversation that the Government of Pakistan has a formal policy of denying clemency in all cases. The source mentioned that Abdul Basit’s case was the first that has been given any consideration for clemency. The source noted, however, that no clear decision has yet been taken on that case and it is still not clear what will happen when the current stay of execution expires on or around 23 April 2016.

International  jurisprudence  has  confirmed  that  in  order  for  states  to  comply  with Article 6(4) of the ICCPR noted above, they must provide prisoners with a “meaningful” opportunity  to  seek  pardon.  Clearly, the  Government  of  Pakistan’s  blanket  policy denying all petitions for mercy falls well short of this standard. Moreover, although the President has broad discretionary powers under Article 45 there is nonetheless also a requirement in Pakistan’s domestic law that where a discretionary power is exercised it must be exercised reasonably and that reasons must be given for decisions. Clearly, by dismissing the mercy petitions of hundreds of prisoners out of hand without giving any consideration  to  the  merits  of  each  individual  case  the  government’s  policy  also breaches these requirements. The Government of Pakistan must now overturn their illegal policy and give fair consideration to mercy petitions, beginning with that of Abdul Basit.