For most people, engagement with the death penalty is limited to their expressing a vehement opinion about it based on their notion of Shariah, retribution, and as an answer to terrorism, and then moving on with their lives.
But the business of death and execution in Pakistan is messy, gruesome, and plagued by legal flaws, both procedural and substantive. Studies show it is not a deterrent and there is no effective way to ensure that it is carried out in a nondiscriminatory or humane manner.
It is in fact, the opposite of humane.
It is a cruel and unusual form of punishment; the last few days a prisoner spends on death row, the vagaries of the justice system and its reliance on Diyat as a form of last minute settlement, final hour phone calls of confirmation, the executioner’s testing the manila rope, all render the system a far cry from an eye for an eye – and more a pre-meditated, morbid and methodical murder.
Alarmingly, on Tuesday, Pakistan hanged 12 overnight. One of them included, Muhammad Afzal, who was 16 at the time of his alleged offence. The rapid pace at which the government is proceeding with these executions, including those of children, is enough reason for it to halt them all.
This speed and stealth deprives defendants and their lawyers to explore avenues of appeal and determine whether there were irregularities with the case. If lawyers are able to uncover procedural and substantive violations at trial, they will have little or no time to make a case, foster empathy for their client, or build a campaign to humanise them.
The case against the death penalty needs to be made simply and in legal terms – this debate has no room for uninformed rhetoric. Unless there is a systematic review of all aspects of law and process, the state must halt all executions.
Death is a draconian and irreversible punishment and the multiple flaws with the justice system that dispenses such judgments should be enough cause for us to re-think this final solution.
These are some of the flaws in the system – and by no means, an exhaustive list:
Judges often sentence defendants to death as they are bothered by low conviction rates and the larger narrative of militants and terrorists receiving judicial leniency and running amok.
Executions cannot be ordered or carried out to regain public confidence. That would be deciding a case not on its merits, but a general insecurity about the inefficacy of the justice system. Ironically, death to appease emotions or restore faith is indicative of judicial bias and a breakdown of law and order, rather than the opposite.
Qisas and Diyat laws privatise justice and place inordinate power in the hands of legal heirs of victims who may, in exchange for money, spare a defendant’s life, or scoff at a monetary offer and send someone to their death.
A system cannot be fair where the whims of bickering relatives, motivated inevitably by their share of the proceeds, determine whether a person lives or dies.
It is unequal and discriminatory; as a person convicted of pre-meditated murder may be excused, while someone like Shafqat Hussain, convicted of manslaughter, and 14 at the time of the alleged offence, may be executed.
Also read: Would we hang a 14-year-old 'terrorist'?
In their 2006 report “Slow March to the Gallows”, the Human Rights Commission of Pakistan (HRCP) suggest that these informal settlements are often a reason why Sessions Courts’ judges may not hesitate with the death sentence as their judgment does not bear the ring of finality.
While international law maintains that the death penalty be carried out only for the most serious crimes, Pakistan permits it for multiple offences, including harboring a hijacker. This section of the Pakistan Penal Code is overbroad and vague enough to condemn a person to death who simply allows an abettor to hijacking to meet at premises controlled by him.
Thus, in principle, someone twice removed from the offence of hijacking could face execution. As it stands, the death penalty is not compatible with international human rights conventions.
Criminal investigation in Pakistan is also deeply flawed. Custodial torture is a common and pervasive method of extracting a confession, and all confessions may be suspect.
Only recently did Pakistan move towards domestic legislation criminalising custodial torture in compliance with its ratification of the United Nations Convention against Torture. Whether this new law ultimately reduces custodial torture will depend on how well the provisions are implemented.
Unless there are systemic police reforms, evolution of investigative mechanisms including forensics, and cases are based on strong evidence beyond testimonies alone, use of torture is yet another reason to reinstate the moratorium.
According to another ratified convention, the International Covenant on Civil and Political Rights (ICCPR), criminal defendants must receive a fair trial. The hallmarks of a fair trial are listed in Article 14 of ICCPR and include an impartial tribunal, proper assistance of counsel, time to prepare the case, and a presumption of innocence.
Whether military and anti-terrorist courts guarantee these rights is doubtful.
Whether indigent defendants can receive adequate representation through state provided lawyers in a legal system where many feel a case’s outcome turns on the status or reputation of your lawyer is also doubtful.
Transcripts at Session Courts may not accurately reflect the proceedings and may be rough translations of proceedings largely held in Urdu. Yet, these transcripts form a major part of the record of proceedings which is the only evidence before the high court or the Supreme Court that confirms a death sentence.
Appellate courts can not re-try a case. Hence, the potentially unreliable nature of these translated transcripts compromise a prisoner’s right of appeal which is a fundamental aspect of the right to fair trial.
Then, there is the issue of substantive law.
The Justice Project Pakistan in their December 2014 report, “Terror on Death Row,” found that more than 800 of all those on death row in Pakistan were tried as ‘terrorists.’
The Anti-Terrorism Act, 1997 defines terrorism in an extremely overbroad fashion and includes, “the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society.”
Kidnapping can thus be found to be designed to intimidate a section of the community and the section could be as small as the family of the victim, and thus terrorism.
There is a rift between people’s real life perception of who terrorists are (i.e. TTP and LeJ) and the people who may be ultimately executed as terrorists.
This is relevant even if the state intends to execute all on death row – as its initial reinstatement of the death penalty was for those convicted of terrorism crimes.
The two conventions Pakistan has ratified, the International Covenant on Civil and Political Rights (ICCPR) and Convention on the Rights of the Child (CRC), both prohibit sentencing people to death who committed crimes under the age of 18.
The Juvenile Justice Ordinance, 2000 (JJO) also prohibits death sentences on those who were under 18 at the time of the commission of the alleged offence. With Muhammad Afzal’s hanging on March 17, the state has possibly violated its own law, as well as its international obligations.
Pakistan, like most societies, has within it potential for liberalism and obscurantism.
The government must set an example for people. It can reject human rights of the most disempowered (prisoners on death row) in some imagined zeal to restore law and order – or it can display restraint and compassion and reinstate the moratorium until it has reviewed whether executions are compatible with domestic and international human rights norms.
Going with the second guarantees our social and economic acceptance in the international community and will prevent any further miscarriages of justice.