CAPITAL PUNISHMENT – PAKISTAN’S DILEMMA
[with permission of author]
Capital punishment, also called death penalty, is defined as the execution of an offender sentenced to death after conviction by a court of law of a criminal offense (Encyclopedia Britannica). Preamble of the Constitution of Pakistan provides for international peace and happiness of the mankind. Constitution of Pakistan protects life, except in case of serious crimes. Article 4.2.(a) “no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;” In Pakistan, capital punishment is prescribed for over 27 different crimes, which include various forms of intentional murder, treason, blasphemy, kidnapping or abduction, rape, procuration and importation for prostitution, assault on modesty of woman and stripping of her cloths, drug smuggling, arms trading, and sabotage of the railway systemamong others.
Currently, 140 countries have abolished capital punishment or stopped practicing it, whereas 58 are still practicing it. The constitutions of the States of European Union have abolished death penalty and hence nobody can be sentenced to death and capital punishments cannot be imposed. The top most populated countries in the world China, India, USA and Indonesia have retained the capital punishment .
II. International Conventions:
United Nations was created in the aftermath of destruction and havoc wrecked by the World War II. UN charter reaffirmed faith in fundamental human rights, dignity and worth of the human person. Article 3 of the Universal Declaration of Human Rights of December 10, 1948 does not admit death penalty and states that every person is entitled to life, to freedom and to his own safety. Subsequently in 1966, the International Convention on Civil and Political Rights (ICCPR) was adopted by the UN General Assembly. According to Article 6(2) of the ICCPR “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”.
Additionally, in the years 2005 and 2007 the UNCHR approved Human Rights Resolution 2005/59 and the UN General Assembly (UNGA) approved Resolution 62/149 respectively calling all states to abolish the Death Penalty and establish a moratorium on executions in the meantime. Since then many international and regional organizations have adopted resolutions and made declarations advocating for a moratorium on executions as a step towards global abolition of the death penalty. Resolutions 1984/50 of Economic and Social Organization of 1984, has explained a number of principles for the countries where death penalty is still in use, and have advised them to apply it in cases of heaviest crimes only. The Conventions of Geneva of 1949 have elaborated upon the rightful treatment of the prisoners liable for the death penalty. Articles 100, 101 and 107 of the 3rd Convention serve as guiding principle for capital punishment of the war prisoners .
The international community has vowed to strive for complete abolition of capital punishment. International Federation for Human Rights and Amnesty International are the leading organizations promoting UDHR. Pakistan signed the declaration in 1948 and even criticized Saudi Arabia who did not sign the declaration claiming that it violated Islamic Sharia Law.
II. Historical Background:
Capital punishments for murder, treason, arson,and rape were awarded in ancient Greece under the laws of Draco (fl. 7th century bce), though Plato argued that it should be used only for the incorrigible. The Romans did exempt its citizens for a short time during the republic.
The three main Semitic religions Judaism, Christianity and Islam have taken varied positions on the morality of capital punishment. The official teachings of Judaism approve capital punishment but the standards of proof required for imposition of capital punishment are extremely stringent. The Roman Catholic Church has traditionally approved the capital punishment and considered it the only remedy available to defend society from the offender. Islam advocates the right to life of every human with an exception when a Court of Law demands it. Islam identifies mischief in the land as a crime punishable with death (Verse 5:32). Capital punishment applies in Islam in the case of the apostate, the married adulterer, the murderer who kills deliberately, bandits and the spies .
IV. Analysis of the Situation:
A. Internal Dimension/Dynamics
i. The number of death row prisoners: Pakistan is finding it increasingly difficult to come to terms with the changing global perspective on the capital punishment. Currently a large number of convicted prisoners are awaiting imposition of the death sentences in various jails of Pakistan. According to the Ministry of Interior, there are 7046 prisoners on death row, whereas Amnesty International estimates the number as more than 8000. This figure is one of the largest population of prisoners facing execution in the world.
ii. The Legal and Judicial System: The Legal and Judicial System of Pakistan has failed to administer quick disposal of justice and the lower courts have bogged down under the ineffective and delayed dispensation mechanism in place. The Police and Prosecution mishandle the cases and the investigation teams remain over occupied with the pending cases at hand. Most of the convicted prisoners languishing in jails of the country under capital punishment are convicted under willful murder, blasphemy, rape and terrorism charges.
iii. Conditions of Jails: The jails of Pakistan are in deplorable state. The slow and ineffective judicial system of Pakistan makes it increasingly difficult for the under capacitated jails to accommodate the large number of prisoners. These overcrowded jails were full with plethora of offenders due to non-submission of challans in the trial court on time. Since no execution has taken place since 2008, hence the jails are filled with prisoners sentenced under capital punishments. The breakup of the offences committed by prisoners indicates that over half of them have been convicted for murder. Human rights organizations have raised serious concerns with the status of jails in Pakistan .
iv. Women and child abuse in jails: The women and children incarcerated in jail are prone to severe violence, trauma, sexual harassment, rape and sodomy. They remain at the mercy of the jail authorities for provision of basic necessities of life. These authorities mete out similar treatments to criminals sentenced for capital punishments as well as the petty offenders. The juveniles are exposed to contact with the hardened criminals sentenced and hence any chances of reformation are lost . ?????
v. Human rights Concerns: The Human Rights Commission of Pakistan (1987) remains committed towards spreading awareness of human rights through collection of information and dissemination of knowledge about human rights abuses. It has repeatedly urged upon the government to keep the capital punishment in Pakistan suspended. It has criticized the trial system of Pakistan Judiciary and has voiced grave concerns over the large number of teenagers sentenced to death by various lower courts. Human Rights Watch and International Commission of Jurists have opposed the death penalty under all conditions as an inherently cruel and irreversible punishment that violates the right to life. They have written a joint letter to the Prime Minister and the President urging them that the “Government should instead declare an official moratorium, commute all existing death sentences and then abolish the death penalty once and for all” .
vi. Political and Religious divergent views: The state and society is divided among sectarian, ethnic and ideological lines. The left wing secular segments of the state and society remain unable to extend meaningful support to the abolition of capital punishment. The country has recently seen a five-year rule of the liberal leftist political parties spearheaded by PPP, MQM and ANP alliance. PPP lost its charismatic leader Zulfiqar Ali Bhutto in 1977 to a capital punishment administered by the dictatorial regime of Gen. Zia ul Haq. The right wing religious and fundamental sections of the society are in favor of the capital punishment since they strongly adhere to the principles of Islam. Any variations in the normal law of the land contrary to the Islamic Laws are strongly detested.
vii. Moratorium has not helped: According to a recently published news story in The Independent of October 03, 2013; contrary to its earlier statement the Government has decided to extend the moratorium amidst building pressure from international human rights organizations and threats of Taliban. The previous Government of PPP had imposed a moratorium on the execution of death penalty in 2008 just after coming into power. Not only that they were under pressure from the international community, they also were against the idea of capital punishment due to what they called illegal hanging of their leader, Mr Z.A. Bhutto. The moratorium was violated on November 14, 2012 when a soldier, Muhammad Hussain was hanged by Court Martial .
viii. Terrorists’ threats: The earlier decision of the Government wherein it has refused to extend the moratorium on abolition of capital punishment has drawn strong criticism from the militants and terrorists operating from settled areas of KPK and FATA. They have threatened the PML(N) government at Islamabad of grave consequences if their convicted members are sent to gallows. The Federal Government is dragging its feet over the peace talks with Taliban whereas they are striking at will inside the settled districts and breaking jails to rescue their convicts. The Government has accordingly backed out from its earlier decision and has decided to continue with the moratorium on capital punishment .
B. External Dimension/Dynamics
i. International Obligations: The International Covenant on Civil and Political Rights (ICCPR) has imposed a number of strict limitations on the imposition of capital punishment. Accepted by UN Assembly in 1966, ICCPR came in force on March 23, 1976. The Article 6 of the ICCPR and its subsequent protocols have significantly affirmed the spirit of Universal Declaration of Human Rights which advocates abolition of capital punishment. Pakistan ratified International Covenant on Civil and Political Rights in 2010. The move was welcomed by Asian Human Rights Commission with a call for speedy implementation. Accordingly Pakistan has to amend a number of domestic laws to bring them in conformity with the undertaking of ICCPR. Moreover, the implementation of the obligations committed under the said ratification will require legislative, judicial and administrative measures, along with appropriate financial allocations. .
ii. EU Pressure: Earlier the European Union had pressurized the government of Pakistan to ratify the ICCPR and UN Convention against Torture (UNCAT). Ana Gomes, the head of a European Union trade delegation warned that execution will seriously undermine Pakistan’s chances of obtaining lucrative trade tariffs. EU threatened Pakistan to withdraw its objections failing which the trade concessions coming Pakistan way will be in jeopardy as the Generalized System of Preferences (GSP) Plus status will be accorded to Pakistan by EU in 2014 .
The debate on Capital Punishment has resurfaced as Pakistan’s major dilemma in the aftermath of June 30, 2013 with the expiry of the moratorium on capital punishment imposed by a Presidential Order in 2008. A decision to abolish capital punishment is needed but not possible due to legal, administrative, security and political reasons. However the same concerns apply if these capital punishment would not be abolished. Pakistan is bound to adhere by its obligations under international covenants and declaration, since it is the member of the international community and cannot afford economically or diplomatically to be declared a pariah state.
The apathy and indifference shown by the various segments of the state and society indicate that the mighty and the powerful remain in a position to maneuver the legal and judicial system of the country so that they go scot free despite committing serious violations of the Public Law. The sordid criminal judicial system of Pakistan must be revamped so that the powerless, downtrodden segments of society do not languish in jails for years during trials in various courts of law. Their agonies and miseries must not remain unnoticed and the lack of will and awareness on part of public must be sensitizes so that public opinion is developed in favor of abolition of the capital punishment.
That the issue is critical and needs to be tackled immediately and seriously is not open to debate. It has remained on the back burner for far too long and needs to be given the right priority. A public debate needs to be initiated with wide ranging state and non-state actors and the civil society. Convergence of views by the two biggest political parties, PPP and PMLN must be capitalized on and a meaningful engagement must be ensured. A high level parliamentary committee must be tasked to discuss the issue thoroughly and put up proposals to the Parliament. Another technical level committee must review all the laws pertaining to capital punishment and propose a selective abolition of the punishment in phased manner. Needless to say, that any action on the national level must be preceded by wide meaningful consultations with all internal and external stakeholders.
 Simon, Rogers, April 12, 2013, The Guardian, “Death Penalty Statistics, Country by Country”, available at http://www.theguardian.com/news/datablog/2011/mar/29/death-penalty-countries-worldaccessed on October 5, 2013.
 International legislations on Human Rights, available at http://library.thinkquest.org/23685/data/idichiar.html
 Tom, Head. “Christianity and the Death Penalty”, Issues and Views at About.com, available at http://civilliberty.about.com/od/capitalpunishment/qt/dp_christianity.htmaccessed on October 5, 2013.
 Shaykh Muhammad Al Mujahid, “The Reasons for Capital Punishment in Islam”Islam Q&A, available at http://www.islam-qa.com/en/20824,accessed on October 6,2013.
 Pakistan – Rentionist, Hands off chains, Against Death Penalty in the world, available at http://www.handsoffcain.info/bancadati/schedastato.php?idstato=17000454accessed on October 6, 2013.
 Pakistan Journal of Criminology, Vol 1, No. 3, 2009, Special Issue on Child Abuse and Juvenile Justice, available athttp://pakistansocietyofcriminology.com/publications/Vol1No3Oct009.pdf accessed on October 6, 2013.
 AsadKharal, November 15, 2012,The Express Tribune, First in Current PPP tenure, Man hanged in Mianwali Jail, available at http://tribune.com.pk/story/466126/first-in-ppp-tenure-man-hanged-in-mianwali-jail/accessed on October 06, 2013.
 The Independent, October 3, 2013, “Pakistan backs down from reinstating death penalty amidst Taliban Threats”, available at http://www.independent.co.uk/news/world/asia/with-8000-prisoners-on-death-row-pakistan-backs-down-from-reinstating-death-penalty-after-taliban-threats-8856093
 PAKISTAN: AHRC welcomes the country’s ratification of the ICCPR and the CAT Convention and call for speedy implementation, available at: http://www.humanrights.asia/news/ahrc-news/AHRC-STM-093-2010
 The Nations, June 23, 2011, “Pakistan decides to withdraw most of reservations on ICCPR, UNCAT “available at: http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/national/23-Jun-2011
 Reforming Pakistan’s Criminal Justice System, International Crisis Group, Asia Report No. 196, December 6, 2012, available at http://www.crisisgroup.org/en/regions/asia/south-asia/pakistan/196-reforming-pakistans-criminal-justice-system.aspx
 Wilder Taylor (Secretary General ICJ), Ali Dayan Hassan (Pakistan Director HRW), Joint Letter Regarding resumption of Execution in Pakistan, available at http://www.hrw.org/news/2013/08/16/joint-open-letter-regarding-resumption-executions-pakistan
Pakistan Penal Code, 1860, sections 302, 303, 311, 312, 194, 396; Anti-Terrorism Act, 1997, sec. 7.
Pakistan Penal Code, 1860, sections 121, 132; High Treason Act, 1973, section 2A.
Pakistan Penal Code, 1860, section 295C.
Pakistan Penal Code, 1960, sections 164A, 365A, 367A.
Pakistan Penal Code, 1860, section 376; Offence of Zina (Enforcement of Hudood) Ordinance, 1979, section 5.
Pakistan Penal Code, 1860, section 366A.
Pakistan Penal Code, 1860, section 366B.
Pakistan Penal Code, 1860, section 354A.
Control of Narcotics Substances Act, 1997, section 9.
Pakistan Arms (Amendment) Ordinance, 1996, section 13A.
Railways (Amendment) Act, 1995, section 127.