THE death penalty is unpleasant and difficult to talk about. In an effort to perhaps make it seem like just another order of business, we have a prisons manual.
An entire chapter is dedicated to executions. The taking of a life is sanitised by laying out schedules for hangings according to the time of year. Rope length in proportion to body weight is discussed at length. If there is a ‘mishap’, a reporting procedure is outlined as well.
But having a ‘how-to-kill’ manual does not take away from the violence of the act. There is risk of protracted strangulation and decapitation. It is a deeply disturbing process that takes so much out of the people charged with carrying it out, a former prisoner has recalled that prison staff is often much nicer to inmates the day after an execution takes place.
Unfortunately, now there’s a risk of exposing a much wider audience to the same traumatising visual. There have been calls for a public execution for Zainab’s killer. They come from a place of anger. Anger at the state for not doing more to protect our children. Anger at a criminal justice system that has failed too many for too long. What happened to that little girl is unacceptable. There should be consequences. But where there is punishment, there must also be reform. A public execution is not it.
The CII’s recent one-page ruling is confusing.
Last month, the Senate Standing Committee on Law and Justice sent a bill to the Council of Islamic Ideology for review. The bill proposes an amendment in the Pakistan Penal Code seeking public execution of criminals charged with kidnapping a child under 14. The Council of Islamic Ideology was to determine if a change in the law was necessary to implement this. The advisory body is held in high regard by both stakeholders and the public. What it says matters.
At a news conference on Feb 8, the Council of Islamic Ideology advised against public hangings as generally understood. There was a sigh of relief. They had shown wisdom and outlined the right call to action, that is reform in our criminal justice institutions to increase the public’s trust. This is why their one-page ruling issued on Thursday is confusing.
In what appears to be a shift in stance, the Council of Islamic Ideology stated that Pakistan did not need to amend any laws to make way for a public execution. That under our current jurisprudence, hanging a convict in public would be legal. They have relied on Section 10 of the Special Courts for Speedy Trials Act, 1992 and Rule 364 of the prison rules.
But the reasoning behind that conclusion would seem to support the opposite conclusion. The legal provisions cited by the Council of Islamic Ideology do not exist in the case of the statute and do not authorise a public execution in the case of the prison laws.
Until 1996, Section 10 did indeed authorise public executions, allowing the government to specify the “place of execution … having regard to the deterrent effect which such execution is likely to have”. But parliament repealed this act by Act No. XI, 1996. A repealed act cannot be relied upon to allow a public hanging.
Rule 364 of the prisons manual is just as weak to lend legal support to their reasoning. Under this, a maximum of “12 respectable male adults” may be admitted to “witness an execution” either “inside a prison” or into “the gallows enclosure” where the latter is “outside the prison”. The “wali of the victim” may also be present.
If an execution were to take place in public, there would be more than 12 men who would come and watch. Whether or not everyone in attendance would be “respectable male adults” is also difficult to determine. If this is the rule they have relied upon, then essentially they are disallowing the government from staging an execution in a public space, which is remarkably different from a prison or a gallows enclosure.
In the ruling, the Council of Islamic Ideology brings up the definition of taifa as a “group of people present to witness the execution for the offence of Hadd-i-Zina … whose number can vary from three to 40”. Prison rules take this into account by allowing witnesses, but also consider security and other concerns of jail authorities in the administration of prisons to arrive at the allowed limit of 12.
But here’s where the ruling appears to advise against public hangings altogether: the Council of Islamic Ideology adds that modern media can achieve the same objective of deterrence if the news of the execution is reported, asserting that a public hanging is wholly unnecessary.
The Council of Islamic Ideology is demonstrably capable of influencing policy. It must exercise that influence with greater clarity on the law. The last thing we need is another set of instructions on how to hang a convict in public.
The writer is head of communications, Justice Project Pakistan.
Published in Dawn, February 18th, 2018