Daily Times

Having seen a continuous surge in the shocking and ghastlycases of child abuse in Pakistan, the members of the National Assembly were left with no choice except to resolve and vote for ‘public execution’ of culprits. The resolution passed with a majority vote. However, some parts of society’s intelligentsia expressed their resentment, considering it a violation of the right to dignity. Does the concept of public execution really violate the right to dignity?

Erin Daly in his book Dignity Rights: Courts, Constitution, and the Worth of Human Person expressly talks about the concept of dignity. Having a long history, the concept of dignity can be divided into two parts: first, the constitutional value, and second, not a constitutional value or right. “As to constitutional value, human dignity is the value of a person within the society.”Meaning thereby, it varies from constitution to constitution and as per the norms and mores of a society.

To consider each society’s norms and mores as one and arguing that the idea of public execution is against the norms and concepts of the United Nations and its laws is nothing but an attempt to undermine each society’s dignity. That is a separate debate. But the cruxis: dignity varies from society to society and morality. One’s morality may often become an offence for the other. Thus, it is an absurdity to consider the whole world’s morality and mores as one. The same goes for dignity.

As Aharon Barak said in the Forward of the above-mentioned book, “The concept of human dignity will be determined in accordance with the perspectives of the enlightened public in Israel, in accordance with the purpose of Basic Law…” Here the dignity must be interpreted as per our mores and norms.

The prime consideration should be the dignity of the child; why should it be the dignity of the offender

“At the centre of human dignity are the sanctity and liberty of life. At its foundation are the autonomy of the individual will, the freedom of choice, and the freedom of man to act as a free creature,”Barak stated in another constitutional case in the Supreme Court of Israel. So, dignity revolves around the concept of freedom, but freedom is not unbridled, and it is and was always ‘limited’ freedom. Unless one does not interfere in the freedom of the other, it is unlimited; it is limited as soon as one transgresses into others’ freedom. This is what the great proponent of liberty John Stuart Mill taught us.

Under Article 14 of the Constitution of the Islamic Republic of Pakistan, 1973, the concept of dignity is preserved as: “The dignity of man… shall be inviolable.”The Supreme Court of Pakistan in 1994, in a suomotu case on the question of public hangings, has held: “The dignity of every man is not subject to law but is an unqualified guarantee… inviolable and execution in public, even the worst criminal appears to violate the dignity of man.” But what is the purpose of punishment if it is really to save the dignity of the transgressor, the one who dreadfully violates the dignity of a child.What then is the value of the dignity of the child? Could the victim be satisfied if the perpetratoris punished respecting his dignity?

Needless to reiterate that liberty is not unlimited, and dignity is entangled with liberty.If one person violates the liberty and dignity of the other, they should be deprived of the dignity of their own. Dignity is inviolable, yes, but not when one transgresses and snatchessomeone else’s dignity. It is itself against dignity to let aperpetrator keep his dignity. The purpose of the punishment is retribution and satisfaction of the victim, not of society.

Amongst the five paramount purposes of punishment-deterrence, incapacitation, rehabilitation, retribution, and restitution- it isretribution that deals with a victim’s satisfaction. True, that a crime is considered against society,but it is a victim who is the most affected one. Everyone else can only empathise with a victim’s suffering. Therefore, it must be his satisfaction and his retribution.

The utilitarian concept of punishment is deterrence;it is rationalised as an exemplary act of the state so that habitual offenders may deter and refrain from their crimes. Jeremy Bentham is the chief proponent of this theory; he argued that sentences should be calculated to be sufficient to deter others from committing the offence.

Therefore, what are we achieving by not publicly executing transgressors, especially hardened, desperate and dangerous criminals, ones who violate the dignity of a child? The prime consideration should be the dignity of the child; why should it be the dignity of the offender? If one argues thatdeterrence and retributive punishments do not serve the purpose and do not diminish the crime rate, to those, the question is: does mere incarceration serve the purpose?Does incarceration-taking the last century as a yardstick-broughtforth positive results? Do habitual offenders change? Incapacitation, rehabilitation and restitution theories are not serving the purpose anymore. It is time to look at retribution and deterrence theories.

As per our norms and mores, Islam too has had the concept of retribution for punishment. As in retribution, the same injury is caused to the offender as a punishment.What if the injury is caused to the dignity? Should the same not happen to the dignity of the offender? It is pertinent to say here that injury is to the body, mind and reputation in criminal law. Can we extract the dignity from the term reputation? We cannot. The Quran states: “Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal.” (5:45).Here it should be: dignity for dignity.

The writer is an advocate of the high court and a columnist