Death by Law

It is unbefitting the project of an ideal society

An antiquated common law tradition, sparingly followed in the modern times, dictates that whenever a judge passes an order that condemns an accused to death penalty, the judge proceeds to break the nib of the pen used to sign the said order. It has been argued that the reason behind this seemingly needless act is to ensure that a pen that has ‘killed’ a human being be not allowed to do any further act. This, in many ways, is lesser of the reasons. The primary reason for breaking the nib, in my opinion, is to register a protest and express disgust at the idea of ‘law’ being used as an instrument to extinguish a human life. This idea, of sending someone to the gallows under the authority of law, militates against the ethos of a just, compassionate and forgiving society – one that believes in the rehabilitation of the crooked, not in the cleansing of sins through blood.

Death penalty is a controversial issue across most modern democracies. And not because the killing of a murderer is not ‘just’ – of course, under the principle of an eye-for-an-eye, it is just and equitable. Instead, the argument against death penalty, for all intents and purposes, lies outside the gates of black letter law, and in the murky field of moral philosophy and the elusive idea of creating an ideal society.

The issue of death penalty has suddenly emerged in our national discourse in light of the decision of the government to temporarily stay the carrying out of executions. Since 2008, Pakistan had a five-year moratorium on death penalty, which ended in June of this year. The new government had initially decided to scrap the moratorium, as part of a larger bid to cleanse our society of militancy. However, in light of TTP’s threat that any execution of militants would result in retaliatory attacks on the prime minister and his brother, the government seems to have backed-down a little, and no final decision has been made on the issue yet.

It is also pertinent to note that in Pakistan, capital punishment is prescribed for 27 different offences, including blasphemy, sexual intercourse outside of marriage, kidnapping or abduction, rape, assault on the modesty of women and the stripping of women’s clothes, smuggling of drugs, arms trading and sabotage of the railway system. Pakistan, with almost 7,000 people on death-row, also happens to be one of the few countries across the world (which list includes the United States) that has not completely abolished death penalty, either in law, or in practice.

Is death penalty a just and appropriate punishment? Does it ‘fix’ the wrong, in a society? Does it appropriately compensate the victim’s family? Does it deter future offenses of a similar nature? Or does it only succeed in, momentarily, making us feel better?

In order to assess these questions, we must get a few issues out of the way: The first and foremost argument in favour of death-penalty is a religious one. The Islamic law and more generally the monotheistic religions have no trouble with death penalty. In fact, in all Abrahamic religions, death penalty is the prescribed punishment for murder (though other alternatives such as blood-money exist). The Holy Quran goes a step further to declare that in the very act of condemning a murderer to death (Qisas) lies the salvation of humankind (2:179). And the argument is that we are nobody to second-guess God.

The second, non-religious argument in favour of death penalty is one of equality: a person should be done unto as he has done unto others. Fair enough. The third argument in favour of death penalty is sociological: some people and their actions are just so heinous and beyond salvation that killing them is in the best interest of the society. The next argument, an emotional one, is that killing a murderer compensates the pain of the victim’s family and the society at large. And the final argument, a cautionary one, is that death penalty can serve as an effective deterrence to the possible commission of similar crimes in the future.

There can be no cavil with the idea that religion allows for death penalty. However, in line with the spirit of the Quran, forgiving someone is more ‘afzal’ (superior) than extracting retribution. And in this way, while death penalty is permissible in Islam, one could easily make the argument that the law of society should aspire to forgive (read: spare) the life, and find other ways (imprisonment?) to punish the culprit. Especially, in a criminal justice system that is prone to errors and wrongful convictions.

As for the death penalty having a deterring effect, it is perhaps important to be reminded that all empirical data points to the contrary. In fact, a comprehensive survey conducted for the UN Committee on Crime Prevention and Control in 1988 and later updated in 1996 and 2002 concluded that research ‘has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment’.

What we are left with, thus, are the emotional and sociological arguments.

I will be the first one to accept that any time I hear of heinous acts of terror, or imagine a harm befalling any of my loved-ones, I imagine the most inhumane, cruel and unusual manner of torturing and killing the person responsible. But that is my human (weak) desire. I hope that the society as a whole, and its law, can rise above our individual animal instincts to find a ‘better’ punishment – an alternative that recognises that each one of us is more than the worst thing that we have done. That a thief is not just a thief, an assaulter is better than the punch he threw. And even a murderer, while being punished appropriately, can have some part of him or her that is virtuous. And that salvageable part, regardless of how infinitesimal, should be the endeavour of law.

Vengeance is mine, sayeth the Lord. The brute act of settling a score, especially when this score entails the killing of a human being, must not be left to the flawed judgment of mere mortals. In any case, even if such a judgment could be justly rendered, it should not be the purpose of law. It is unbefitting the project of an ideal society … in which we ‘purge’ the killer from inside the human being, without taking a life.

Society has a right to protect itself, but it does not have a right to be vengeful. Law of the society has a right to punish, but it cannot be given the right to kill. And I hope that this will be our political, legal and judicial value, going forward.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected]