Daily Times

My argument is that ‘rope is not a social saviour’. The modern and advanced capitalist country, Britain of continental Europe, abolished capital punishment for murder in 1964, and in 1998 abolished for all offences and introduced mandatory sentence of life imprisonment. Now, in Britain the reasonable section of society demands the reinstatement of capital punishment for intentional murder, which seems to me impossible to happen in the 21st century especially in the 19th century’s superpower Britain. The fact is that the movement against capital punishment had its origin over 100 years ago in efforts aimed at the medieval concept of retributive justice with reformative justice. Thus, in 1863 Venezuela became the first country in the world to abolish the capital punishment. There are 62 countries in the world that still maintain death penalty, while 92 countries have abolished it completely. There are 10 countries that retain it, but only for the crimes committed during war times.

In this article I will put together my analysis and justification to abolish capital punishment in Pakistan. The discussion will go on to demonstrate whether Pakistan should abolish capital punishment. I hold lots of questions that I always ask my friends who are in favour of capital punishment. I would like to put those questions such as that killing by the state is no better than murder by a criminal; that the death sentence is irreversible and no remedy is possible for an unjust execution; that in a country like Pakistan where the justice system is admittedly flawed the possibility of miscarriage is exceptionally high, and so on.

At the outset, it seems pertinent to briefly outline the history relating to capital punishment in Pakistan. When Pakistan came into being after the partition, there was two capital punishment offences: intentional murder and mutiny. As time has progressed this number has increased to 27, which is too high in modern age when countries around the world are abolishing capital punishment.

Now in Pakistan, intentional murder, blasphemy, robbery, smuggling of drugs, child abduction, arms trading, rape, prostitution, assault on modesty of woman and stripping of her clothes, etc have been made capital crimes. Islamic Socialist, Zulfiqar Ali Bhutto, when came to power in 1970 made a crucial turn that he increased the life imprisonment from 14 years to 25 years with the intention to wholly abolish capital punishment in the years to come. However, General Ziaul Haq who has the credit of the Islamisation of Pakistan did two crucial things: one strengthening the ideology of Pakistan through his ill will, and second retained 25-year life imprisonment and as well as death penalty. As per research, there are about 5,378 appeals pending in provincial high courts, 1,031 in apex court prima facie. The number of appeals are high here and it can be said that the justice system of Pakistan has no propensity to settle all those appeals quickly. If we see the number of appeals pending in each province it is alarming, for instance, the death row prisoners in Punjab, 4,981; Sindh, 266; Khyber Pakhtunkhwa, 102; and Balochistan, 29. Meanwhile, 532 mercy applications are pending before the president. The President of Pakistan can award pardon to any prisoner in death row by virtue of Article 45 of the Constitution. It has also been learnt that the president has stopped the implementation of 78 capital punishment sentences, whereas the GHQ has pending with it appeals of six military personnel, while the Federal Shariat Court has 21 appeals.

The fact that it is a norm to award death penalty by judges primarily from the lower courts, the judiciary is widely criticised by human right activists and lawyers defending prisoners on the death row. The high number of death sentences by lower courts do not get approval from the High Court add weight to the argument: abolish capital punishment. The conservative elements in Pakistan argue that abolishing of death sentence from 27 crimes in Pakistan are sanctioned by religion, whereas Islam provides death for only crimes such as murder and criminal commotion. The rightwing entities and clerics misguide the general public as the majority of citizens are illiterate and many do not even try to enquire about the issues.

It is noteworthy that any move to abolish or abandon death sentence in Pakistan would certainly be a violation of the Constitution of Pakistan 1973. The constitution of Pakistan expressly declare that no law can be enacted that is repugnant to the injunctions of Islam as laid down in the Holy Koran and Sunnah Article 227. The Supreme Court of Pakistan had to intervene and question the legitimacy of federal government’s move for the commutation of death sentence. However, the article nine of the constitution stipulates ‘right to life’; here it appears that the article nine and article 227 are in conflict. This conflict needs to be addressed and the apex court should intervene to clarify the issue in course.

In the year 2008-2009, the law ministry of Pakistan advised the prime minister against the commutation and pardon to the death penalty awarded to 70,000 to life imprisonment would be a violation of the Islamic law contrary to the rulings of the Supreme Court, and in disregard of the grief and agony of those whose loved ones had been murdered. When the government of Pakistan was weighing the option to pardon the sentence death, President Asif Zardari promulgated the legislation the Prevention of Electronic Crimes Ordinance on November 6, 2008 in which cyber crime was made a capital crime. Isn’t it too harsh? Here, it appears that the abolishing capital punishment is a political issue not religious. The State of Pakistan has always been motivated by clerics to gain political benefits. The State of Pakistan has always appeased clerics. Since 2008 no positive effort has been made to abolish capital punishment as I believe fundamentalism has increased in Pakistan. The assassination of Governor Salmaan Taseer shows that Pakistan is in the verge of radicalising and it has reached a point where tolerance no longer exists in society.

The United Nations has adopted a protocol to the International Covenant on Civil and Political Rights, which has been signed by Pakistan. It calls for the abolition of death penalty. However, international humanitarian protocol only stipulates that offences carrying death penalty should be as few as possible and that this punishment should be awarded in extreme cases, and then too after a trial that meets international standards, or in times of war. In the classic doctrine of natural rights as expounded by for instance John Locke, and Blackstone, it is important to believe that right to life can be forfeited. I personally do not think that this justification for capital punishment is acceptable in modern age. To demand abolition of capital punishment is fair in the 21st century, as it is argued that capital punishment leads to miscarriage of justice through the wrongful exception of innocent persons. Many people have been proclaimed innocent victims of the death penalty.

The death penalty is irrevocable. Miscarriage of justice is possible even in the most judicially advanced countries. The glaring deficiencies in Pakistan’s justice system are well-known. Nothing can be done if a person is found to be innocent after he has been hanged. The death penalty is unfair because it is more likely to be applied to the poor and underprivileged than to the affluent and privileged. In Pakistan, the Qisas and Diyat law ensures that only poor and weak persons are sent to the gallows. At the very end, I refer back to my above mentioned justification that rope is not a social saviour.

The writer is a freelance columnist