IN the aftermath of the most heinous and horrible tragedy in Peshawar at the Army Public School, Sartaj Aziz, adviser on foreign affairs, rightly called the massacre of the students the ‘9/11 of Pakistan’.
However, I do hope we do not enter into a frenzy of unjustified killings like the United States did after 9/11 in Afghanistan and Iraq, which we know was to appease the American public and was ineffective in countering terrorism.
Terrorism has nevertheless increased in the last decade, and today the world is facing threats far worse than Al Qaeda, such as the militant group the Islamic State. Unfortunately, our policymakers and government seem to be treading the same path of violence in vengeance as the US, and have decided to execute those on death row as a starting point.
Shafqat Hussain was just 14 years old at the time he was charged.
The majority of those on death row in Pakistan have suffered serious miscarriage of justice during the trial process. Shafqat Hussain is one of those due to be executed at any time. In 2004, almost 10 years ago, Shafqat Hussain was convicted of murder and kidnapping in Karachi. He was sentenced to death by an anti-terrorism court. In the coming weeks, if all goes according to the government’s plan, he will be hanged by the neck until dead. This will go some way, we are told, towards making up for the horror in Peshawar.
Let us begin with the first salient fact about Shafqat: he was just 14 years old at the time he was charged. Pakistan signed the United Nations Convention on the Rights of the Child in 1990.
The convention explicitly states that no “capital punishment … shall be imposed for offences committed by persons below 18 years of age”. Thus, if Pakistan goes ahead and kills him, this will be a violation of international law.
The same UN convention also makes clear — as if it needed to be said — that “no child shall be subjected to torture.…” In upholding Shafqat’s conviction, the high court relied exclusively on the fact that he had “confessed” to his crime.
Shafqat has always maintained it was the bitter fruit of nine days of brutal police torture. He says he was beaten, electrocuted, and had cigarettes stubbed out on his arm. Young, scared, and alone, Shafqat was willing to say he did anything: “they could make you say that a deer was an elephant.”
Regardless of whether one believes Shafqat (his visible scars are eloquent proof of the cigarette burns), let us turn to the United Nations Convention Against Torture also signed by Pakistan.
This provides that when there is an assertion of torture the state “shall immediately make a preliminary inquiry into the facts”. No such inquiry has ever been made. Pakistan will be in violation of another international law if Shafqat is executed without being heard.
Without the torture-confession, there is no evidence that Shafqat is guilty. It hardly seems necessary to cite authority for the principle that we should not execute the innocent.
Innocent children were killed in Peshawar but it will not expiate that crime to kill another innocent child.
Surely, at the very least, the president should allow Shafqat a fair hearing on clemency — after all, Pakistan has signed the International Covenant on Civil and Political Rights, which provides that “anyone sentenced to death shall have the right to seek pardon or commutation of the sentence”. To do otherwise would be to violate yet another international obligation.
But let us turn to our own law. Shafqat has spent more than half of his life in a cramped death cell in Karachi’s Central Prison. Had he been sentenced to life in prison he would long since have been released. Thus, he has already served one sentence, albeit for a crime that lack of evidence shows he almost certainly did not commit.
Our own Shariat court has held that “[t]he current prison practice is already torture-oriented. …Prisons are being used only for the purpose of awarding physical pain and punishment in addition to mental torture”. Therefore, the judges opined, to execute someone after such pain and suffering would be double jeopardy.
Surely, then, civilised people can agree on two things: first, that Shafqat Hussain should be released immediately; and second, most obviously, that hanging him will not advance the cause of justice for the tragic victims of Peshawar.
What is practically required of us is a better system of governance where terrorists do not operate with impunity and operational liberty that enables them to carry out attacks like the one in Peshawar. The death penalty is neither a deterrent nor symbolic of our resolve to fight terror.
The writer is director Foundation for Fundamental Rights and Legal Fellow of Reprieve UK in Pakistan.
Published in Dawn, December 26th, 2014