National Commission for Human Right (NCHR) recently held a conference titled ‘Moving away from Death Penalty in Pakistan’. The issue is least discussed in Pakistan, as the country always favoured death penalty with the exception of a 7-month moratorium.
The world is divided in two camps: abolitionist and religionist. There were many common arguments both ways. But the reality is a large number of countries have moved away from death penalty by replacing it with life imprisonment, moratorium or they do not practice it at all.
In 1984, General Assembly passed a resolution specifying strict condition for the countries that have not abolished death penalty. The resolution prohibited the application of death sentence on persons below 18 years of age at the time of the commission of crime, pregnant women, and new mothers or on person who suffer from mental disability.
An accused should be given a fair trial and right to appeal or seek pardon. It further said pardon or commutation of sentence may be granted in all cases of capital punishment. The 1984 resolution was a milestone. 37 more countries either abolished or put moratorium on death penalty, increasing the number of countries without death penalty to 190. The list includes a number of OIC countries like Senegal, Tunisia, Morocco, Algeria, Maldives, Azerbaijan, Uzbekistan, Tajikistan, Kazakhstan, Turkmenistan, Brunei, Burkina Faso, Gambia, Mali, and Mauritania Niger. Pakistan and Turkey had put a ban on death penalty which was recently lifted.
Article 6 of the international covenant on civil and politics rights (ICCPR), to which Pakistan is a signatory, states, “Every human being has the inherent right to life. This right shall be protected by law.” It further states, “Nothing in the article shall be invoked to delay or to prevent the abolition of capital punishment by any state party to the present covenant. In 2008, the government of Pakistan had placed a moratorium and stopped execution of prisoners on death row.
Wrongful convictions are a common phenomenon. Even well-functioning legal systems have sentenced to death men and women who were subsequently proved innocent
After a brutal terrorist attack on Army public School Peshawar in December 2014, the voluntarily imposed moratorium was lifted first for terrorism-related cases and then in March 2015, for all capital punishment cases. Although Article 6 (2) of the ICCPR permits application of death penalty, it is restricted to the ‘most serious crimes’, in accordance with ECOSOC (resolution 1984) safe guard.
In countries like Pakistan where investigation and evidence gathering are fragile and conditions to fulfill the requisites of justice are non-existent, fair trial cannot be guaranteed. Sometimes the truth of the deceased being innocent never comes to light even decades later. Wrongful convictions are a common phenomenon. Even well-functioning legal systems have sentenced to death men and women who were subsequently proved innocent.
Recently, in nearly a dozen cases, the Supreme Court acquitted the accused, who had appealed against the high courts, confirmation of their death sentence. The accused had spent 8 to 20 years in prison. Their acquittal was on lack of adequate evidence or collusion between the complaint and the police. Political influence and corruption becomes a major obstacle in dispensation of justice. Even in a country like United States, more then 100 cases of wrongful convictions is a glaring example of erroneous judgement. Human Rights activists believe that it is better to pardon erroneously than to punish erroneously. The killings should not be driven by politics in any case.
In 1947, Pakistan set death penalty for 2 offences only, but now it is increased to 27 offences. Since 2014, 416 people were given death penalty and 425 in 2016. Out of 87 people executed last year, only 14 were terrorists. The argument that lifting of moratorium is to combat terrorism does not hold ground.
Eminent lawyer Faisal Siddiqui says that in reviewing jurisprudence, moratorium has no legal basis hence cannot be a permanent solution and that traditional remedies will not work.
The constitution of Pakistan is neither secular nor theocratic, but a hybrid. The state policy towards crime is to kill everyone who does not comply, which is why the society is completely traumatised and brutalised. There is a death consensus between state and society. The penal law is therefore militarised.
The new phenomenon of ‘mob-violence, to dispense justice is becoming part of our daily lives. Recent killing of Mashal is a case in point. Blasphemy law has been used time and again as a weapon to settle scores.
We need to get out of the stagnant situation and review mandatory death penalty in 27 crimes. The list can be curtailed to most serious offences, definition maintainable human rights standards. These procedures have been laid down by various human rights intuitions, international tribunals and officials. The right to be heard fairly in court, to have a legal counsel, no torture to extract confession and adequate evidence are some of the pre-requisites. The state is bound to provide a procedure for reviewing the court decision, and to arrow capital offenders to seek amnesty, pardon or commutation of death sentence. Juvenile offenders and mental disability cases should be treated according to the procedure laid down for them. The death sentence is not applicable to pregnant women or new mothers. These principles reflect profound universal sentiment.
Instead of mandatory capital punishment, judges should be given options for life imprisonment. One more factor which needs our attention is the lack of legal counsel for accused from poor background. Many death convicts are underprivileged and cannot have access to quality legal assistance. There is also an issue with due process of law. In a recent visit to Karachi jail by NCHR delegation, the common complaint from the prisoner was unavailability of competent legal counsel. Many complained the state council does not turn up on hearings.
Discrimination on the of basis of financial status, sex, ethnicity or political affiliation is a violation of human rights. In Pakistan, as someone remarked either the prime minister or the poor prisoners are sent to gallows. Former chief justice of India Justice Bhagwati once said, “In India, only the poor get death sentence.”
Fair trial means that accused and his lawyer get sufficient facilities and time for their defence. Some countries Like Pakistan and Bangladesh have enacted separate laws for trials of different categories of crimes to combat terrorism. Speedy trials or military courts do not fulfill the criteria of a fire trial. The presumption of innocence is not held in high regard either. It is a common sight to see accused handcuffed, maltreated and in degrading conditions.
In a number of cases, evidence is inadequate and faulty. Our Judicial system does not meet the universally acknowledged human rights standards in awarding capital punishment to offenders of the “most serious crimes.” It needs to be reformed as soon as possible to stop arbitrary arrests, enforced disappearances, torture, and unlawful detention.
The writer is a member of the National Commission on Human Rights
Published in Daily Times, July 20th , 2017.