Capital Punishment - Pakistan's Dilemma
CAPITAL PUNISHMENT –
PAKISTAN’S DILEMMA
[with permission of author]
I. Introduction:
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[1], treason[2], blasphemy[3], kidnapping or abduction[4], rape[5], procuration[6] and importation[7] for prostitution, assault
on modesty of woman and stripping of her cloths[8], drug smuggling[9], arms trading[10], and sabotage of the
railway system[11]
among 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 [1].
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 [2].
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.
III. 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[3]. 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 [4].
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 [5].
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 [6]. ?????
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” [10].
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 [7].
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 [8].
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. [9].
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 [10].
V. Conclusion
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.
VI. Recommendations
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.
Bibliography:
[1] 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-world
accessed on October 5, 2013.
[2]
International legislations on Human Rights,
available at http://library.thinkquest.org/23685/data/idichiar.html
[3] Tom, Head. “Christianity and the Death
Penalty”, Issues and Views at About.com, available at http://civilliberty.about.com/od/capitalpunishment/qt/dp_christianity.htm
accessed on October 5, 2013.
[4] 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.
[5] Pakistan – Rentionist, Hands off chains,
Against Death Penalty in the world, available at http://www.handsoffcain.info/bancadati/schedastato.php?idstato=17000454
accessed on October 6, 2013.
[6] 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.
[7] 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.
[7]
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
[8]
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
[9] 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
[10]
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
[11]
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
[1]Pakistan
Penal Code, 1860, sections 302, 303, 311, 312, 194, 396; Anti-Terrorism Act,
1997, sec. 7.
[2]Pakistan
Penal Code, 1860, sections 121, 132; High Treason Act, 1973, section 2A.
[3]
Pakistan Penal Code, 1860, section 295C.
[4]
Pakistan Penal Code, 1960, sections 164A, 365A, 367A.
[5]Pakistan
Penal Code, 1860, section 376; Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, section 5.
[6]
Pakistan Penal Code, 1860, section 366A.
[7]
Pakistan Penal Code, 1860, section 366B.
[8]
Pakistan Penal Code, 1860, section 354A.
[9]Control
of Narcotics Substances Act, 1997, section 9.
[10]Pakistan
Arms (Amendment) Ordinance, 1996, section 13A.
[11]
Railways (Amendment) Act, 1995, section 127.
Comments
Post a Comment