ISLAMABAD: The Supreme Court has dismissed a plea seeking abolition of the death penalty in Pakistan on the grounds that miscarriage of justice is bound to happen in the presence of an ineffective and defective criminal justice system in the country.

A three-judge bench headed by Justice Mian Saqib Nisar had taken up the petition. Filed by Barrister Zafarullah Khan of the Watan Party, it had asked the court to order an end to capital punishment because it violated Article 9 of the Constitution and was therefore unconstitutional.

Authored by Justice Nisar, the judgment stressed the need for parliament to correct the deficiencies in criminal prosecution laws, if any, through an amendment.

Bench says petitioner may approach appropriate forum

Referring to the petitioner’s submission that the government should adopt a uniform policy on death penalty (since it granted a moratorium on capital punishment but then withdrew it), the verdict said the plea raised was not in line with the grievance propounded by Barrister Zafarullah and suggested he approach the appropriate forum in this regard.

The petitioner, the judgment regretted, neither challenged any statutory provisions of any law nor had he mentioned any law which prescribed the death penalty.

But when asked to refer to criteria on the basis of which laws prescribing the death penalty should be struck down, the petitioner could only refer to Article 9 of the Constitution, which says that no person shall be deprived of life or liberty, save in accordance with the law.

It was clear from the reading of Article 9, the verdict explained, that the right to life and liberty of a person was not absolute in nature. Rather the right was circumscribed and subject to law, meaning that a person could not be bereft of life and liberty, except in accordance with law.

Moreover, Article 4(2) of the Constitution, which says that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with the law, reinforces the legal position that a person can be deprived of his life and liberty if it is provided and prescribed by any law.

The verdict said the petitioner had failed to show how, on the basis of these two articles, the Supreme Court, while exercising its jurisdiction in terms of Article 184(3) of the Constitution — which deals with the enforcement of fundamental rights — could order the abolition of the death penalty and annul any law, the validity of which has not been challenged before. During the proceedings, the petitioner argued that Article 9 was not a properly worded provision of the Constitution and therefore parliament should make necessary amendments in this regard.

The judgment however explained that the Supreme Court while exercising its jurisdiction did not deem it appropriate to issue such a direction to the parliament, though it could make such suggestions.

The court also rejected the plea raised by the petitioner that the criminal justice system was unfair, unreasonable and convictions and death punishments lacked due process.

Also, Article 10A of the Constitution, which ensures fair trial and due process, provides a clear answer to the plea raised. Thus, if any convict is aggrieved on account of lack of fair trial or due process of law, he has the remedy before the appropriate forum in appropriate proceedings to challenge such trial and convictions, the judgment concluded.

Published in Dawn, May 31st, 2015

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