THE report that the federal government has at last been persuaded to review the laws under which capital punishment can be awarded for 27 offences will be welcomed by all those who have been calling for such action for many years.
The government decision follows official initiative at two levels. The Pakistan mission at Geneva drew the Foreign Office’s attention to the international community’s growing concern at the excessive use of the death penalty in this country. The criticism of Pakistan’s conduct in this regard became more and more strident when the country’s performance under the various human rights instruments was discussed by the relevant implementation bodies.
On the basis of the submission made by the permanent mission at Geneva, the Foreign Office put up a summary to the prime minister in which it supported a reduction in the death penalty scope and suggested a longer period of life imprisonment for serious offences as an alternative.
It is difficult to believe that the mission at Geneva became aware of Pakistan’s non-compliance with UN instruments only in 2016 because such complaints against Pakistan have been piling up for many years.
In 2013, Pakistan took the unusual and quite impolite decision to reject seven of the 167 recommendations made at the conclusion of the Universal Periodic Review and six of them had called for a review or repeal of death penalty provisions, especially of laws that provided for a mandatory death sentence.
Retention of capital punishment for 27 crimes amounts to jeopardising the citizens’ right to life.
The UN Human Rights Committee that made its final observations on Pakistan’s initial report under the Covenant on Civil and Political Rights in July last asked the government to reinstate the moratorium on the death penalty and to seriously consider its abolition.
It called for guarantees that death is awarded only for the most serious crimes, that it is never mandatory; that pardon and commutation are available in all cases, that it is never imposed by military courts, and that no child under 18 and no one suffering from psychological or intellectual disability is sentenced to death.
The government has also been asked to ensure that “Pakistani migrant workers subjected to death sentence overseas are provided with sufficient legal and consular services throughout their legal proceedings”.
It will not be politically correct to maintain that Pakistan is thinking of moving towards a humanitarian dispensation only and entirely due to foreign goading. The government will make its task of abridging the death penalty regime easier by acknowledging the campaign towards this end that Pakistan’s legal experts, young lawyers and civil society activists have been waging for many years.
The main reason for the state’s failure to adopt a rational attitude regarding the death penalty has been its morbid obsession with the idea of a deterrent and absolute punishment. Whenever the government has been asked about any plan to restore the moratorium or abolish the death penalty, the answer usually is that the restoration of the moratorium is not under consideration and the question of abolishing the death penalty simply does not arise.
The fact is that the case for restricting the scope of the death penalty and putting a moratorium on any execution is quite strong.
Quite a few of the laws under reference were made to suit the whim or fancy of self-appointed rulers without any mandate from the people or reference to them. In some other cases, poorly drafted manmade laws were presented as religious injunctions and thus protected against due scrutiny.
The need for good laws is established by the judiciary and lawyers when they find the laws in force inadequate to deal with certain situations. The political parties, academics and civil society organisations can also derive justification for new laws from the experiences of the people. These requisites of sound lawmaking were not met when death was prescribed as punishment for many crimes.
We also saw that sometimes a law made ostensibly to protect women in fact made them more vulnerable. When rape and gang rape were made punishable by death, ie put in the category of murder, the criminals were given an option to eliminate the most important witnesses without enhancing their criminal liability.
A most powerful argument to trim the death penalty regime has been presented by the evidence that chances of miscarriage of justice in Pakistan have greatly increased. The three-member Supreme Court bench that has been hearing murder appeals has acquitted since Jan 1 this year at least 26 men whose death sentence had been confirmed by the high courts.
In most cases, the Supreme Court passed strictures on the prosecution and the trial courts because it found that the accused had been convicted on the basis of insufficient evidence, or the witnesses were unreliable or contradicted each other. In one case, the accused was a boy of 15 at the time of occurrence.
This year we also had the case of Khizar Hayat, a man suffering from schizophrenia, whose execution was stopped at the last moment by a high court.
With a system of justice so deeply flawed as revealed by these cases, retention of death penalty for 27 crimes amounts to jeopardising the citizens’ right to life.
The death penalty also adversely affects the psychology of the masses in several ways. It has a brutalising effect on society and strengthens the tendency towards violence and revenge.
The government must also accept the blame for failure to remove the impression that the death sentence for all the 27 crimes under discussion enjoys Islamic sanction whereas all religious authorities concede that Islam provides for death penalty only for two offences, murder and fasad fil arz. We may put aside these two crimes and start removing death as the punishment for the other 25 crimes.
The government will do well to abridge the death penalty regime and bring it into harmony with progressive concepts of reformative justice in society’s best interest.
Published in Dawn, October 26th, 2017