LAST week’s hanging of a former army employee has caused anguish and dismay at home and abroad, especially to all those who have been struggling for the abolition of capital punishment, and has revived debate on the subject.
Much informed discussion has already been held on the reasons for repudiating the concept of capital punishment: that the world should prefer reformative justice to the eye-for-eye theory; that killing by the state is no better than murder by a criminal; that the death sentence is irreversible and no remedy is possible for an unjust execution; that in a country like Pakistan where the justice system is admittedly flawed the possibility of miscarriage is exceptionally high, and so on. These arguments need not be repeated here, at least for now.
An important issue today is that the latest hanging has caused a setback to moves for adopting a rational position on the question of the death penalty that began with the imposition of an informal moratorium on executions in January 2009.
The government announced in 2008 that it was working on recommendations to abolish the death penalty. In the following year, the prime minister told the National Assembly that he had asked the interior minister to submit a summary to the president to convert the death sentence of condemned prisoners into life imprisonment.
The president apparently decided to develop a stronger consensus while no execution was allowed after December 2008. The Sindh Assembly was informed in October 2009 that the president had asked the provincial governments to file their views on the commutation of death sentences. The federal government was to take a decision after receiving suggestions from all the four provinces.
What the provinces conveyed to Islamabad is not known but in February 2010 the interior minister told the National Assembly that a law was being drafted for abolition of the death penalty and that this law could be enforced before the year ended. He, however, indicated that the death sentence would continue to be awarded for certain offences.
In the following month, the law minister asked his ministry to move for removal of the death penalty provision from the control of the Narcotics Substances Act 1997 because, he said, awarding capital punishment under the act was “uncalled for, harsh and un-Islamic”.
Other related developments include the judiciary’s interest in the subject. The Supreme Court took suo motu notice of official references to commutation of death sentences to life imprisonment but no regular hearings were held. In 2011, a petition was moved in the Supreme Court calling for abolition of the death penalty but it is as yet to be disposed of.
More disturbing than the breach in the moratorium is the statement of an adviser to government that the idea of abolishing death penalty has been dropped. Besides, the government seems in no mood to generate a discourse. As a result, conservative elements are free to mislead the people that the prescription of death penalty for 28 offences in Pakistan is protected by divine sanction whereas Islam provides for death only in two cases — murder and criminal commotion (fasad-fil-arz).
The fact that the man hanged last week had been convicted by a military tribunal, like the one hanged in December 2008 before the moratorium began, raises two serious questions that cannot be brushed aside.
The first issue is whether trial by military tribunals, which may be described as another parallel system of justice, is in accord with the contemporary values of a fair determination of criminal liability. The military may be entitled to punish its personnel for violations of discipline. But can it legitimately claim exemption from the universal conventions and constitutional guarantees for the right to life and dignity of person while awarding absolute punishment?
The Supreme Court only the other day called for an amendment to the procedure for military trials whereby the accused is not allowed the facilities that are considered an essential part of due process. Last year also the court had asked for a review of the system of military trials. Besides, the task of reviewing the amendment of the Army Act of 1952, that provides for trial of civilians under a law meant exclusively for servicemen, has been pending for quite some time. The provision is hit by all the arguments employed by the superior judiciary while restraining the state from setting up military courts to decide cases of serious crime in certain situations.
The argument for barring civilians’ trial by military tribunals receives strength from the scheme envisaged by the Official Secrets Act. This law was designed largely to deal with spies operating against security (military) interests but the trial, even for offences punishable with death, is to be held by a normal civilian court. (That it is a bad and outdated piece of legislation and needs a thorough revision is another matter).
In any case, it seems necessary not only to bar military tribunals from trying civilians but also for giving serious thought to the possibility of transferring the military tribunals’ jurisdiction in criminal cases to normal civilian courts.
The second issue is whether cases of capital punishment awarded by military tribunals are excluded from the purview of Article 45 of the constitution which grants the president the power to pardon a person condemned to death or to commute his sentence.
This constitutional prerogative of the president has not been extinguished but successive heads of state have been too timid to exercise it. And we are faced with a strange anomaly that while the president is told that he cannot pardon a death row convict the army chief is not subject to any such constraint.
The point at issue is not unimportant — it involves a matter of life and death for some people, however small their number. Instead of going into lengthy debates on the powers of military tribunals to award the death penalty and the practice regarding commutation of the death sentence and the impact of the Qisas law on pardon, it would be much easier, better and safer to abolish the death penalty.
A phased reform programme is possible. Let the moratorium be revived and the offences for which Islam does not provide for death penalty deleted from the list of capital crimes. Then proper studies should be carried out to determine how the Qisas law has turned murder into a crime for which only poor persons and those who are not gangsters can be punished. That will lead to a constructive discourse that Pakistan urgently needs.