SINCE rumour is generally true in Pakistan one hopes the new president will announce within a few days the government’s decision not to resume the execution of condemned prisoners for the time being.
Such an announcement, like the informal moratorium kept in force by the previous government, will not amount to the abolition of the death penalty. But it should mark the beginning of a search for a rational resolution of the controversy over the country’s death penalty regime. This effort should have been made earlier and if the present government wishes to avoid its predecessor’s lapses it should welcome a thorough public discourse.
The government has been urged to extend the moratorium on hangings by different quarters. Civil society activists who had been demanding abolition of the death penalty for years have been joined by international human rights organisations and no government should ignore the international opinion. The government is also aware of the economic cost of retaining the death penalty. There is pressure on it to stay the executioner’s hand in order to keep the door to talks with militants/terrorists open.
At the same time the honourable chief justice of the Sindh High Court has deemed it appropriate to make an outside-the-court plea for mandatory execution of hardened criminals.
This underlines the need for judicial authorities to exercise restraint while making off-the-cuff observations that could land them in unwelcome controversies. Whatever may be happening in Karachi or elsewhere, Pakistan cannot afford to opt for the mediaeval concept of a retributive dispensation.
Apart from whatever has been said for or against the death penalty over the past few weeks, the case for a moratorium on hangings commands respect on merit and needs to be presented over and over again.
The advocates of the death penalty build their case on four main grounds:
— The death penalty acts as a deterrent to serious crime.
— The ends of justice demand capital punishment for capital offences.
— The victim’s family does not receive justice if perpetrators of heinous crimes are not hanged.
— Since the death penalty has been prescribed in the Holy Quran it cannot be abolished in a Muslim state.
All these arguments have been found non-maintainable in any serious discussion.
That the death penalty is no deterrent can be proved from the crime record of many countries, from China to the US. In Pakistan killing of women for ‘honour’ has increased and so has kidnapping for ransom despite the prescription of death as punishment for these crimes.
The incidence of terrorist attacks and sectarian massacres has increased after the promulgation of anti-terrorist laws. All studies confirm that harsh laws and punishments alone have nowhere suppressed serious crime; that objective can only be realised through non-penal social engineering.
As for the demands of justice they operate in favour of the victim and the offender both: justice for one must not mean injustice to the other.
Since the death penalty is a punishment that cannot be reversed the degree of certitude required for awarding this penalty to anyone demands not only a high level of efficiency on the part of investigators, prosecutors and court authorities but also a society that has acquired maturity for truthfulness and fair play. There is a national consensus that these conditions are not met in Pakistan. Hence the risk of miscarriage of justice is abnormally high.
There is a great deal of hypocrisy in the argument that hangings are necessary to console and compensate the victims’ families. The most effective form of consolation is payment of diyat and the state should arrange for that. The clamour for hanging is the result of the brutalisation of society. No criminal is wholly responsible for his acts and society must accept a part of the responsibility for his having gone astray.
Finally, the religious argument. The Quran lays down death punishment for only two offences — murder and mischief in the land (fasad-fil-arz). There is no religious sanction for awarding death for 26 of the 28 offences that carry the death penalty in Pakistan .
Besides, the objective of punishing a wrongdoer in a civilised society can only be his transformation into a peaceful law-abiding citizen. What should be the fate of a person on the death row who proves by his conduct that he has purged himself of all criminal tendencies and has learnt to serve his fellow beings? If executed, such a person will be punished for having reformed himself and not for his original offence.
All these issues need to be debated freely and in keeping with the traditions of earnest discussion and over a considerably long period. That is the purpose of a moratorium. If only executions are put on hold and matters are pushed under the carpet, Pakistan will make its present imbroglio more and more intractable.
Tailpiece: The pleasant taste of the denouement in the Imran Khan contempt case should stay on our palate for quite some time. It is not every day that one hears of judicial notice being taken of a politician’s status. The judge who craved for respect and not praise has given us a quotable quote of permanent value. But it was the attorney general who settled the issue of contempt of court, hopefully once and for all.
Where non-compliance was not an issue, he stated, what anyone said for or against a judge was of no consequence to the latter or his court. Let this be the guiding principle for deciding all contempt cases.
Correction: The title of Abdullahi Ahmed An-Naim’s book referred to in this column last week was not correct. The correct citation is Islam and the Secular State: Negotiating the Future of Sharia; Harvard University Press, USA/Viva Books, New Delhi.