January Issue 2015

 In an unprecedented response to the ghastly death of 134 children at the Army Public School in Peshawar on December 16, Prime Minister Nawaz Sharif lifted the de facto moratorium on the death penalty for terror-related cases that had been in place since 2008.

There are more than 8,000 prisoners on death row across Pakistan, for various charges including drug trafficking, blasphemy and terrorism. 

On December 19, the masterminds behind the attack on the Pakistan Army headquarters in 2009 and the attempted assassination of former president, General (retd.) Pervez Musharraf, in 2003 were hanged. Two days later, four more militants met with the same fate. 

The debate surrounding capital punishment has a long and convoluted past. Abolitionists claim that the death penalty can be awarded incorrectly thereby causing an irreversible miscarriage of justice. On the list of inmates to be hanged, 24-year-old Shafqat Hussain is just such an example. He was convicted for kidnap and murder at the age of 14, only confessing after several days of brutal torture. 

Newsline asked veteran human rights activist, I.A. Rehman, and senior journalist, Amir Zia, to put forward their case for and against the death penalty in Pakistan.

It’s a Deterrent

The December 16 massacre of schoolchildren at the Army Public School in Peshawar finally forced the government to partially lift the moratorium on the death penalty. Imposed by the Pakistan People’s Party (PPP) government in 2008, the moratorium gave relief to convicts involved in heinous crimes such as terrorism, murder, child abuse, kidnapping for ransom and drug peddling.

The Sharif government’s decision to scrap the ban on the hanging of convicts involved in terrorism came more as a knee-jerk reaction to ward off the intense public grief and anger over the barbarity in Peshawar, rather than a well thought out strategy aimed at removing the dichotomy in the country’s legal system that allows courts to hand down death sentences on 27 different counts, but the executive arm of the state to block their implementation in an open breach of the Constitution.

Although this partial lifting of the ban on the death penalty remains a small welcome step in the right direction, it has failed to address the fundamental contradiction in which the executive still appears reluctant to uphold the Constitution and facilitate the dispensation of justice as required by the law of the land. By continuing with the moratorium on the death penalty — on cases other than terror convictions — the government has again benefited the criminals at the cost of the victims and their families.

We still see a small minority, comprising mainly so-called liberals and human rights activists, campaigning against the execution of terrorists and challenging the very concept of capital punishment, without taking into account the objective conditions of Pakistan where terrorism, crime and lawlessness remain endemic.

They cite examples of the European Union and scores of other countries which have abolished the capital punishment. However, they fail to mention that none of these countries have witnessed nearly 60,000 people, including thousands of soldiers and officers, martyred in relentless terror attacks since 2002, when the Pakistani security establishment abandoned its support for the Afghan Taliban and tried to clamp down on non-state actors using our country to foment violence and terrorism both here and abroad.

These campaigners also ignore religiously-motivated targeted killings,  and the soaring crime rate including murders, kidnapping for ransom and child-abuse cases in their zeal to take a ‘politically correct’ position favoured by their donors and the European Union, which is once again pressing Pakistan to halt the execution of terrorists.

They also discount the fact that those countries which have abolished the death penalty remain far ahead of Pakistan in terms of socio-economic development and education. None of them face the kind of internal existential security challenges, instability and turmoil that Pakistan is confronted with, where the writ of the state remains weak and its legitimacy is challenged by various militant extremist and nationalist groups.

Yet, this small section of anti-death penalty campaigners manage to confuse the issue — thanks to their dominance in the English-language press where a handful of writers, journalists and lawyers connected with various NGOs keep pushing an agenda that stands in stark contrast to Pakistan’s reality. In doing this, they are either demonstrating blatant intellectual dishonesty or their ignorance and lack of understanding. But despite their well-oiled propaganda machine both in the traditional and the new media, these rights groups form only a tiny part of the larger problem that stems mainly from the conduct, lack of vision and flawed policies of the two successive civilian governments regarding this vital issue.

If the former PPP and the present Pakistan Muslim League-Nawaz (PML-N) governments were sincere in their intent to abolish the death penalty, they should have amended the Constitution. However, they could not take this path mainly because of three factors: fear of a backlash from the country’s religious forces which see any such step as violating the tenets of Islam; opposition from the country’s top judges in the high courts, Supreme Court and the security establishment; and the overwhelming public support for capital punishment in our society. Therefore, these two successive governments took the easy course of banning executions through an executive order that created legal and constitutional complications.

In Pakistan’s context, capital punishment can play a vital role in acting as a deterrent to crime and terrorism and send a strong message that the state stands committed to justice. This would be the first step in combating the twin ghosts of terrorism and extremism. Here, no sane mind is denying the importance and need of mid-to long-term policies aimed at socio-economic development, the creation of more employment opportunities and reforms in the education system, particularly seminaries. But the short-term measures of quickly bringing perpetrators of atrocious crimes and terrorism to justice remain as important as long-term policies.

Many critics of capital punishment point to flaws in the country’s policing, prosecution and judicial system which, in their view, can result in the hanging of an innocent. But this criticism holds little ground given the fact that our courts, especially the superior courts, remain extra-vigilant in handing down the death sentence. The main complaint of the law enforcement agencies is that our judicial system acquits many of the hardened criminals and terrorists rather than convicts them. Our legal system allows multiple appeals at every stage of the trial and when it comes to handing down the death sentence, our honourable judges have a tradition of showing restraint.

Nevertheless, reforms in the judicial system remain the need of the hour. Currently, most cases drag on from grandfather to grandson. This delay in the dispensation of justice is the greatest injustice. The government needs to provide more resources to increase the number of judges at every level. It should also take steps to provide security to judges, prosecutors and witnesses, especially in terrorism-related cases.

There also remains a need for necessary changes in the laws to set up special courts for the speedy trial of terrorists. The government, opposition parties, religious scholars and clerics, as well as the leaders of public opinion, must not allow the European Union to dictate terms or criminal rights campaigners to dilute or confuse the issue. Pakistan is at war. Steps need to be taken on a war-footing to defeat the  enemy within. There is no room for wavering. The terrorists must be confronted with the resolute might of the state and the law.

Additionally, the government must review the Qisas and Diyat laws which are grossly misused by the rich and powerful to extract pardons from the families of the victims in routine murder cases and even in the so-called honour killings. To begin with, the state should be the aggrieved party in all the honour killing cases and must ensure that any man, who ordered the killing of his daughter, wife, mother or sister, is not allowed to pardon any blood relation who executed the murder.

Capital punishment must not be seen, or come into force, as a mere reaction and act of vengeance for the Peshawar tragedy. It should be part and parcel of a well thought out strategy to combat all heinous crimes and terrorism, towards which the two successive governments have so far shown criminal negligence. There is no doubt that the death penalty is not to be taken lightly, but the question comes down to whether the state is ready to stand by the victims and their families or is it skewed in favour of the criminals and terrorists. The choice could never be clearer.

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