January Issue 2015

The arguments against the death penalty are so strong and convincing that only the most callous will refuse to be converted. Some of the arguments are peculiar to Pakistan and similarly underdeveloped countries.

The investigation and prosecution agencies in Pakistan are trusted neither for their honesty nor efficiency. In murder cases, they put the blame for the crime on the party that loses out in the bid for their favours. Our people have a tendency to name as accused, in addition to the killer(s), all young and old male members of their family. More people than required are thus tried by subordinate courts, whose low level of integrity and competence is one of the superior courts’ long-standing worries. And most cases are made out or ruined at the trial stage; mistakes at that level can rarely be corrected by higher courts.

The result of all this is that the conviction rate has been falling regularly. At present, it is estimated to be no higher than eight to 10 per cent. Many criminals are acquitted while innocent men and women languish in jails. In this situation, the chances of a miscarriage of justice are extremely high. In order to avoid hanging an innocent person, it is advisable to not sentence anyone to death, particularly because capital punishment is irrevocable. There can be cases in which the person responsible for a murder is found guilty after someone else has been executed for committing it. The dead man cannot be brought back. There is no remedy.

Pakistan’s death penalty regime has also been assailed for many other reasons. The number of offences punishable by death has been raised from two at the time of independence to 28 at present, without adequate justification or simply to suit the whim of dictators such as General Zia-ul-Haq. In some cases, the prescription of the death penalty for an offence induces criminals to cover up their crime by killing the victims (for example, in cases of sexual assault.) In some other cases, a law that lays down death as the punishment for certain offences is abused to get rid of business rivals or settle personal scores (for instance, the blasphemy law).

More than anything else, the death penalty regime has been made controversial by the Qisas and Diyat law. Following the enactment of this law, murder has been turned into a private affair between a killer and the victim’s family. If a murderer can pay blood money or intimidate the victim’s kith and kin into forgiving him, he can be set free at any stage of the case.

How this law has been turned into a licence to kill can be illustrated from a case reported some time ago. A man killed his daughter and asked his son to take the rap. The latter was arrested, but soon afterwards forgiven by his father, acting as wali (guardian) of the deceased. The accused walked out of prison a free man. There have also been cases of murderers being forgiven by families under threats of more killings in revenge.

Thus, under the present criminal justice system, ordinary people have come to believe that only the poor and the powerless will be led to the gallows. In view of the extremely severe nature of the punishment and its irreversibility, it has been suggested in many legal circles, and in Pakistan too, that after a court has found a person guilty, arguments should be heard afresh to determine the scale of punishment. This helps in checking errors in the exercise of the judicial officers’ discretion in choosing the level of punishment. The idea is worth exploring by Pakistan’s jurists.

It is also necessary to dispel the impression that hanging cannot be objected to because it is based on a judicial verdict. While it is true that a death sentence is confirmed after a judicial process of trial and appeal, hangings are generally possible only after the rejection of mercy petitions by the head of state. The latter’s power to pardon a convict or to commute his sentence has not been affected by the enforcement of the Qisas law. For one thing, Article 45 of the Constitution that gives the president the power to pardon has not been repealed and, for another, the receipt of mercy petitions by the president can only mean that he has the authority to accept them.

With a view to ensuring that a mercy petition is disposed of after scrutinising all aspects of the matter, such as a convict’s gender, age, health and the conditions he was tried under, some Indians have proposed the creation of a committee of non-official experts to advise the head of state in such cases. This move, too, is worth studying.

The long periods the condemned prisoners spend in death cells in Pakistan create two problems. First, many of them stay in prison for more than 14 years, which is the maximum period for which a person sentenced to life imprisonment is incarcerated. It has been argued that they have already completed a sentence that is awarded as an alternative to capital punishment, and executing them would amount to punishing them twice for a single offence, an idea hard to countenance.

Secondly, some of the convicts succeed in reforming themselves. One of the persons on death row is Dr Zulfiqar. During his imprisonment, he has acquired several academic degrees, including a doctorate. In addition he has taught a large number of prisoners and helped them attain academic distinction.

A similar case is that of Aftab Bahadur. He was only 17 when he was booked for murder 20 years ago, after being denied the opportunity of a fair trial because he was too poor to engage a defence counsel worth the name, and because the case received undue publicity and the prime minister called for instant retribution. Bahadur has learnt to paint during his prison hours.

If you hang Dr Zulfiqar and Aftab Bahadur, who will decide whether they are punished for the crimes they are alleged to have committed a long time ago or for having reformed themselves, for becoming better citizens than most of the people living outside prison?

While all these suggestions were meant to prevent the miscarriage of justice, more decisive arguments against the death penalty are based on theoretical formulations.

The main argument in favour of the death penalty, that it acts as a deterrent, has been proved wrong by the experience of many nations. The crime rate in developed countries came down after the number of offences liable to capital punishment was reduced. It is doubtful if the rate of heinous crimes in the states of the US that allow the death penalty is lower than in states that have abolished it. In Pakistan itself, the number of people sentenced to death came down during the moratorium years (2009-2014) and that disproves the theory that the abolition of the death penalty could increase crime rates.

A strong argument against the death penalty is that its justification is derived from the concept of retributive justice whereas humankind now subscribes to the theory of reformative justice. Under the new theory, an offender is punished only to the extent of enabling him to repent, go through a catharsis, and regain his place in society as a peaceful, law-abiding citizen. The death penalty, it is argued, is no punishment. Once a person is executed, he is in no position to realise the implications of the end of life. What he experiences before execution is fear or the rigours of imprisonment and that is not the same thing as punishment for his serious crime.

It has also been argued that punishing an offender is either evidence of society’s failure to raise him as a law-abiding citizen or a failure to prevent a person from taking the path of crime. Under this theory, criminals are not wholly responsible for their actions and society’s failure to educate them should be taken as a mitigating factor in their favour.

In the extraordinary circumstances faced by the people of Pakistan, defenders of the death penalty argue that terrorists who kill innocent people, children in particular, deserve no clemency or lenience. The demand that terrorists should be punished more severely than ordinary murderers is valid. But that does not affect the finding that the death penalty does not amount to making a culprit suffer for his misdeeds. Therefore, a terrorist may be given longer terms of imprisonment than other offenders and may be allowed fewer concessions (in terms of freedom from hard labour and remission) than the latter.

It goes without saying that the chances of a miscarriage of justice in cases of terrorism are extraordinarily high. Notions of threat to security of the state that often come into play in trials for terrorism create an environment in which the dispensation of justice could become difficult.

Further, the impact of hanging on society cannot be ignored. All executions brutalise citizens. They become less tolerant and ruthless in dealing with fellow human beings. Dialogue and restraint are replaced with violence as the first resort.

The impact on children’s minds is particularly chilling. They are seized by fear when terrorists kill anyone and even more so when the state kills. Not even the richest countries can afford the cost of responding to terror with terror, and Pakistan most certainly cannot.

This article was originally published in Newsline’s Annual 2015  issue.