AMONG the first acts of the new rulers is their reported decision to roll back one of the most ennobling policies of the previous government — the moratorium on execution of death sentence. The folly of the move is simply appalling.
The four-year moratorium followed a policy decision that the government was considering the abolition of the death penalty. What prevented a logical culmination of that move is not known. However, throughout these four years there has been no significant public agitation for a resumption of capital punishment, except for a recent demand by some Karachi lawyers, backed most unfortunately by the honourable chief justice of the Sindh High Court at a non-judicial forum.
With due respect to them, reason does not support the view that resumption of hanging will turn the killing fields of Karachi into rose gardens.
The case for abolishing the death penalty has never been effectively presented. The concept of the death penalty is a hangover from the mediaeval period before humankind discovered the value of reformative justice. It has been demonstrated on numerous occasions that the killing of a human being in prison is as inhuman an act as murder.
The death penalty has also been opposed on the ground that instances of wrong conviction have been admitted even in countries with the most efficient systems of justice. The weaknesses of our system are too obvious to deny possibilities of miscarriage of justice. A 2007 study showed that in Sindh, 70pc of death sentences awarded by trial courts were set aside or commuted to imprisonment because of flawed investigation.
Capital punishment being irreversible, no remedy is available if a person’s innocence is established after his execution. One shudders to imagine what might have happened if the sentence of death awarded to Maulana Maudoodi and Maulana Abdul Sattar Niazi by a military court in 1953 had been promptly carried out. Fears of miscarriage of justice have persuaded most sensible Muslim scholars to follow the dictum that it is better to let a culprit walk free than hang an innocent person.
Pakistan has ratified the International Covenant on Civil and Political Rights (ICCPR). This and the ratification of the Covenant on Economic, Social and Cultural Rights mark Pakistan’s acceptance of the international human rights mechanisms. Islamabad cannot for long ignore the need to ratify the protocols to the ICCPR, the second of which calls for abolition of the death penalty.
That many people in Pakistan want the perpetrators of heinous crimes to be beheaded even without a trial cannot be denied. This only confirms the brutalisation of society as a result of the derogation of the law under military dictators and the many seasons of blood-letting under one holy banner or another.
The people, especially their dim-witted leaders, have been drained of the last vestiges of humanitarianism, tolerance and compassion. Those who protest day in and day out against the brutalising effects of drone attacks on terrorists cannot perceive that anti-Shia pogroms, butchering of people by militants, giving the people a licence to kill blasphemy suspects, and execution of convicts in jails have similar effects on society as a whole.
The arguments advanced in favour of the death penalty have been rebutted many times over.
The first argument is that capital punishment deters crime. Wrong. Europe began overcoming serious crime by relaxing the death penalty regime and the American states that retain capital punishment have failed to contain the crime rate.
In Pakistan itself, during 1999-2003, when the death penalty regime was fully operational, no less than 3,336 persons were awarded the death penalty, an average of 667 per year.
Meanwhile, as a result of the abuse of the Diyat law the number of convicts sentenced to death during 2004-2008 fell to 1,827 — an average of 366 per year. During the moratorium years (2009-2012) the number of convicts sentenced to death fell to 1,188, an average of 297 per year. A fall in conviction rate may not decisively prove that the moratorium does not breed crime but it is an important indicator.
The second argument is that abolition of death penalty deprives the victim family of appropriate satisfaction. Appropriate satisfaction cannot mean revenge killing. Providing a victim family adequate reparation is society’s responsibility.
It is wrong to blame a culprit alone for his crime and ignore society’s failure to create a climate conducive to good order. The victim’s family gets no material relief from any hanging. The remedy lies in creating a cover of social security for victims of murder or similar crimes.
The third and the most serious ground is that Islam enjoins the death penalty. Many learned religious scholars maintain that Islam provides for capital punishment for only two offences — murder and fasad-fil-arz (mischief in the land, perhaps equivalent to anarchy/ treason).
According to them there is no unanimity on death for blasphemy and nobody has proved that Islam prescribes death sentence for the 25 or so other offences that now carry capital punishment in Pakistan.
Indeed it is because of the abuse of the Diyat and Qisas law that the state allows those condemned to death to buy freedom by paying money to victims’ families or bullying them into forgiving them, which makes a further mockery of justice. That explains the low execution figures during 1999-2003 — an average of less than 33 executions per year.
During 2004-2008, the execution rate rose to an average of 60 per year but that had only a marginal effect on the crime rate. Those who use the religious argument to defend the death penalty may look at the havoc caused by the abuse of the Diyat law; in the hands of unscrupulous men it has become a licence to get women killed by their brothers who are then pardoned by their fathers. The Diyat law is consistently exploited to pardon the accused before they are convicted, in total breach of the law.
The new government will gain nothing but worldwide obloquy by resuming executions and that too without a public debate.