The hanging fields

The state trying to live by creating fear syndrome

 “An execution is not simply death. It is just as different from the privation of life as a concentration camp is from prison. For there to be an equivalency, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.”

Albert Camus, Reflections on the Guillotine, Resistance, Rebellion & Death

These days, the morning welcome on television is reading the count of people hanged in various jails across the country. The spectacle is enacted in all its gory details making one wonder how low have we sunk in reporting matters concerning human sentiments and pain.

This article is not a defence of crime. It, instead, is meant to spur a rational discourse with regard to the possible effectiveness or otherwise of the death penalty being a deterrent to crime.

The European Union, in a strong-worded statement released on March 18 has asked the Pakistan government to restore the moratorium on death penalty. The statement said: “At least thirty-nine people have been executed in Pakistan since December 2014 when the government lifted a moratorium on executions in place since 2008. Contrary to the government of Pakistan’s stated policy that only clearly identified terrorists would be executed, convicts not sentenced on terrorist charges are now being executed”. The statement concluded by “calling on Pakistan to reinstitute the moratorium and to respectfully all its international obligations, in particular the principle of fair trial”.

There are two distinct aspects of the case: capital punishment as an instrument of deterrence against crime after completing due process of a fair trial, and administering death penalty to those below eighteen years of age at the time of occurrence of a crime. Pakistan exercised moratorium for over six years, but lifted it in the wake of the approval of 21^st amendment in the constitution with the predominant intent of using it as a potent weapon in its war against terror

It also highlighted that article 6(5) of the International Covenant on Civil and Political Rights, to which Pakistan is a party, specifically prohibits the use of death sentence for crimes committed by persons below eighteen years of age.

The United Nations has also reminded Pakistan of its international obligations to ban capital punishment. In a statement released it said that, under the International Covenant on Civil and Political Rights as well as the Convention on the Rights of the Child, Pakistan was legally committed to ensuring due process and not imposing the death penalty. It further stated that, moving away from death penalty will contribute to human development, dignity and rights.

The government of Pakistan, on the other hand, has defended the capital punishment saying that it was not violating any international law: “Our constitution and legal system allow death penalty within legal parameters and the condition of a fair trial”.

In December, 2014 when the moratorium was initially lifted, the government had stated that criminals awarded death sentence for involvement in heinous acts of terrorism only would be executed, but death penalty has now been restored encompassing all crimes.

While the government was quick to lift the moratorium on capital punishment and start sending convicts to the gallows, even some necessary initial work on the envisaged initiatives to secure long-term gains and control the nurseries of indoctrination and extremism has not started yet, this because of a combination of factors including the oft-advertised paucity of resources and lack of moral authority and political will on the part of the ruling elite

According to updated figures, 58 countries of the world practice capital punishment, Pakistan being one of them, 98 have abolished it de jure for all times, seven have abolished it for ordinary crimes only and 35 have abolished it de facto for not having used it for at least ten years and/or are under moratorium. Amnesty International considers most countries abolitionist. Overall, it considers 140 countries to be so either in law or practice.

Practically all countries of the world except Saudi Arabia, Iran and Sudan prohibit the execution of individuals who are under the age of eighteen at the time of committing a crime. Executions of this kind are prohibited under the international law.

There are two distinct aspects of the case: capital punishment as an instrument of deterrence against crime after completing due process of a fair trial, and administering death penalty to those below eighteen years of age at the time of occurrence of a crime. Pakistan exercised moratorium for over six years, but lifted it in the wake of the approval of 21^stamendment in the constitution with the predominant intent of using it as a potent weapon in its war against terror.

The National Action Plan (NAP) listed twenty points that the government resolved to cover as part of this effort. Some of the envisaged steps including the lifting of moratorium on death penalty and the ongoing Zarb-e-Azb operation in the North Waziristan Agency were for securing immediate results, while some others were for addressing the nurseries of terror for long-term consolidation of benefits. These steps included:

1. Not allowing any armed organisation to operate;

2. Registering and regulating seminaries;

3. Eliminating of all sources of funding for terrorists and terrorist organisations;

4. Initiating action to stop religious extremism and protect religious minorities;

5. Stopping the banned organisations from operating under any other name;

6. Acting against literature, newspapers and magazines that are spreading hate, ideas of beheading people, sectarianism, extremism and intolerance;

7. Banning the airing of views of terrorists and terrorist organisations in the print and electronic media, and

8. Creating a special anti-terrorist force in the country.

While the government was quick to lift the moratorium on capital punishment and start sending convicts to the gallows, even some necessary initial work on the envisaged initiatives to secure long-term gains and control the nurseries of indoctrination and extremism has not started yet, this because of a combination of factors including the oft-advertised paucity of resources and lack of moral authority and political will on the part of the ruling elite.

Among the innumerable defences put forward to abolish the death penalty, the lack of equivalency factor is the most telling. In Pakistan, award of death penalty is also based on what are generally perceived to be flawed laws. The blasphemy law is one such aberration which has been responsible for the killing of scores of the accused at the hands of the religious fanatics, even inside prison houses. The state has failed to impose its writ to ensure provision of equitable justice to its citizens, most importantly those hailing from the impoverished and the underprivileged segments of the society. The criminal justice system of the state has practically collapsed

There are two examples that would amplify the forfeiture of responsibility within the state and the ruling elite. The first is the case of Mumtaz Qadri. The man was accused of murdering the former governor of Punjab Salman Taseer in cold blood. He even confessed to his crime. He was awarded the death penalty at the lower court level. The judgement given in the high court upheld the death penalty, but removed the anti-terrorism clause, thus freeing the state of any responsibility with regard to guiding the case to its logical end. It is now like another simple matter to be sorted out between the two concerned parties. But, there is another factor that needs consideration: that of the growing, and often violent pressure by the mostly proscribed religious organisations to force the aggrieved party to come to a settlement under the diyat law, thus allowing the killer to walk away a free man. Refusal by the aggrieved party to comply usually has a violent ending, the state again remaining an uncaring and unconcerned spectator.

The other case concerns Shafqat Hussain who was allegedly a minor at the time when he is accused of having killed a child. Shafqat is a poor person who could not afford to hire a lawyer. During the process of hearing the case, the concerned judge is reported to have pointed out the aberration and, from among those present in the courtroom at that instant, asked one of the lawyers to represent him. This particular lawyer, though having agreed to do the needful, is reported to have taken no interest in the case. When he did not appear on behalf of the accused child on three consecutive appearances, he was sent a notice. The lawyer appeared before the judge and excused himself from the case. So, the poor child, having had to go through the motions of the case without any legal support, was sentenced to death for the alleged crime. It is, therefore, obvious that there was a dereliction of duty by the state in this matter and the process of law was not duly followed. It was a simple case of miscarriage of justice and the state alone bears the responsibility.

As long as the state cannot ensure, without a shadow of doubt, the impartiality of its legal institutions and machinery in the matter of handling criminal cases transparently and justly and, as long as it cannot ensure provision of compatible aids to those who cannot afford these on their own, it loses the legal and moral right to inflict capital punishment. Unfortunately, the state of Pakistan has been recurrently guilty of this crime, and there does not appear a prospect for it to remodel its approach. That does not mean that it should virtually reduce the vast swathes of the country into insensate hanging fields

The interior minister’s statement on the floor of the national assembly further perpetuates this dereliction of responsibility. He said that the government had made every endeavour to establish the age of the accused, but the provincial government in Sindh had not extended any help. Now, irrespective of who is to blame for the government’s inability to establish key facts regarding the case, it defeats the very basis of the award of the death penalty. Even if there remains an iota of doubt with regard to the age of Shafqat, its benefit must go to the accused which should result in postponing the execution and initiating credible steps for a transparent ascertainment of age. But there is more. If, even after all its efforts, the government cannot establish Shafqat’s age, it cannot execute him as that would be tantamount to judicial murder. Capital punishment, if at all, can only be administered when there is not even a shadow of doubt remaining in the award of the extreme punishment.

Among the innumerable defences put forward to abolish the death penalty, the lack of equivalency factor is the most telling. In Pakistan, award of death penalty is also based on what are generally perceived to be flawed laws. The blasphemy law is one such aberration which has been responsible for the killing of scores of the accused at the hands of the religious fanatics, even inside prison houses. The state has failed to impose its writ to ensure provision of equitable justice to its citizens, most importantly those hailing from the impoverished and the underprivileged segments of the society. The criminal justice system of the state has practically collapsed.

As long as the state cannot ensure, without a shadow of doubt, the impartiality of its legal institutions and machinery in the matter of handling criminal cases transparently and justly and, as long as it cannot ensure provision of compatible aids to those who cannot afford these on their own, it loses the legal and moral right to inflict capital punishment. Unfortunately, the state of Pakistan has been recurrently guilty of this crime, and there does not appear a prospect for it to remodel its approach. That does not mean that it should virtually reduce the vast swathes of the country into insensate hanging fields.