Daily Times

Afzal Guru’s hanging raises many unpalatable questions. Why someone who was not even guilty beyond reasonable doubt became the victim of capital punishment? Was it justice or an act of vengeance? Was it done solely to satisfy the “collective conscience of the nation” or did anyone even think about honouring the fundamental human rights of this man?

This event has once again sparked debate about the use of death penalty to appease public anger and resentment. Death penalty or capital punishment is indeed quite a controversial issue and it requires a certain kind of chutzpah to condemn such an outrageous act. Recently Arundhati Roy penned down her thoughts on the Afzal Guru’s case declaring the act as a stain on India’s democracy, and she raises a conscience-awakening question asking if now the Indian collective morality is satisfied or is the cup of blood still only half-full.

The belief that death penalty or capital punishment entails inhumane treatment is gaining ground. One feels sorry for the victims of death penalty, as they are increasingly subjected to traumatising acts of stoning, beheadings, gas chambers, electrocution and lethal injections. Lethal injection has stirred a debate, some authorising it while others still condemning it. Lethal injection is currently the most common form of execution in the United States, Oklahoma was the first state to authorise it. However, now the pretence that lethal injection is a useful and painless way of executing prisoners is no longer sacrosanct. Human rights advocates are beginning to question why torment an individual and deprive him of his right to life when he can be punished through life imprisonment as well.

I am not criticising the important role that death penalty plays as a deterrent in some instances but what I am arguing here is that we need to prevent this phenomenon from being abused. The European Court of Human Rights repeatedly condemned the death row occurrence in the United States, as it constitutes brutal treatment. The court upholds the importance of safeguarding human rights. It does not talk about completely doing away with death penalty; rather, it believes that the manner of conducting public executions should be compatible with human dignity. Amongst the numerous death penalty cases surrounded by controversy was that of Saddam Hussein’s where the world bemoaned his execution. In response to such cases and atrocious incidents, the United Nations called for a moratorium on such executions. The moratorium for a while did play its role in curtailing painful executions, but with the passage of time, some countries despite the moratorium in place chose to revert back to the odious practice of sending people back to the gallows, once again leading to a major setback to the human rights discourse.

The most compelling argument against death penalty is that it is irrevocable and can be inflicted on the innocent. There have been instances where innocent people have been hanged; according to the Amnesty International, the development in the DNA research had led to the finding that a number of innocent persons in the US have been sent to the gallows. The Islamic position with regard to the ethics of capital punishment is that even though the death penalty is allowed in some instances, forgiveness is preferable, which bolsters the argument made here. Forgiveness, peace, value of human life, these are the principles that Islam highlights and the possibility of capital punishment should only be considered in cases of treason and apostasy.

The human rights discourse around death penalty is expanding. As one delves deeper into the international human rights law on death penalty, it appears that the Universal Declaration of Human Rights (UDHR), although not binding, has out rightly denied the legality of death penalty. On the contrary, the International Covenant on Civil and Political (ICCPR), despite being a universally binding international law, does not prohibit death penalty. The absence of prohibition does not mean it supports death penalty either, as has been explained by a leading death penalty expert. He argues that the ICCPR’s main aim is to eradicate the concept of death penalty but it was not made obligatory owing to ‘the prudence of its drafters, aware of its anomaly but fearful of alienating retentionist States and discouraging them from ratification’. Hence, it can be deciphered that both the ICCPR and UDHR, the principal human rights law, aim to do away with the death penalty. This has been articulated in the UDHR and Article six of the ICCPR: no one shall be denied protection from deprivation of life, as every human being has an inherent right to life.

History reveals that many leading academics and literati have criticised death penalty and justified their stance by arguing that it is certainly not acting as a deterrent. This to a great extent stands true and murder rate in most regions across the world is rising. On deterrence, Albert Camus is not convinced that murderers are put off by the news of their execution. The announcement of execution instead of having any impact on the accused ends up intimidating those in his family who are not even drawn to crime. The idea that death penalty is not a solution has been reiterated by George Bernard Shaw when he says, “It is the deed that teaches, not the name we give it. Murder and capital punishments are not opposites that cancel one another, but similar that breeds their kind.” Death penalty, hence, should be amongst the range of the options available and used as a last resort, not invoked to seek revenge.

Like it or not, but Iraq and Pakistan are among the countries with the largest populations of prisoners and inmates on the death row. It is believed that there are about 8,000 people currently on death row in Pakistan. Many such countries need to reform their criminal justice system and introduce legislation proposing an end to death penalty in all cases with the exception of repugnant acts of blasphemy and apostasy. The legal system in many countries is the only harbinger of justice; hence, it must allow recourse to fair trail to an individual. Every human being has a right to be heard and plead his case in a court of law. In a death penalty case, the aim should be to stay execution and to commute sentence from death to life imprisonment without the possibility of parole.

Death penalty not only fails as a solution but it is enormously expensive and a wasteful programme. Majority of the studies on the cost of capital punishment conducted by various experts conclude it is much more expensive than a system with life sentences as the maximum penalty. If a country like Pakistan surrenders death penalty, the economy will be relieved of the financial burdens, as for the implementation of death penalty huge funds are needed to support pre- trial and trial costs, appeals and state habeas corpus petitions, federal habeas corpus appeals and finally incarceration.

Pakistan must look into reforming death penalty laws in 2013. Such a reform is mandatory for not only Pakistan but also all other countries that are seeking membership of the European Union General Scheme of Preference in order to improve their trade and ties with the western world.

It is pertinent to highlight that the prevailing scenario in most of the less developed countries manifests that death penalty is inflicted on the poor and the marginalised, is arbitrary and unfair and the penalty claims innocent lives. Above all, it not only defies the international human rights standards but also fails to deter crimes, the sole purpose for which they are executed.

The writer is a lawyer and a human rights advocate based in Lahore and can be reached at sarashujat@hotmail.com