Should we abolish death penalty?

Ishrat Saleem

The decision of the federal cabinet to commute death sentence of 7,000 prisoners on death row in different jails across Pakistan into life imprisonment has been met with both fierce opposition and welcome relief. Prime minister Yousaf Raza Gillani had announced on the occasion of the birth anniversary of Late PPP Chairperson Benazir Bhutto that the government would recommend to the president to commute the death sentence of convicted prisoner into life imprisonment. This concession will not include the Indian prisoner Sarabjit Singh and those involved in other crimes of grave nature. The major supporters of death penalty are religious parties, who believe that abolishing death sentence will remove the deterrence which is helpful in preventing crime. The opponents of death penalty, however, believe that the matter is not that simple. Flaws and weaknesses in the judicial system make it possible that an innocent person is awarded death sentence. Moreover, data from countries which practice death penalty shows that it does not contribute to the prevention of crime in any way. Several organisations around the world and within Pakistan have done exhaustive work which suggests that more often, death penalty becomes a tool in the hands of the state and the powerful sections of society to exploit the disadvantaged and the poor. Apart from the hue and cry being raised by religious factions, another development in this regard is the suo mottu notice by the Supreme Court, demanding the government to submit a written explanation for this action till July 14.

The cabinet decision coincided with the visit of Executive Director of Human Rights Watch Kenneth Roth, who met Prime Minister Yousaf Raza Gillani as well as Nawaz Sharif, leader of the second largest party in parliament, the PML (N). One his contentions was that Pakistan should abolish death penalty from the legal system, or at least put a moratorium death penalty. Had it not been for the international pressure, it is questionable whether the Pakistani rulers would have been moved to take this measure, which is cosmetic to say the least. Barring a few human rights organisations, there is little or no awareness among the Pakistani public on the international discourse on the death penalty. But the fact is that a large number of countries around the world have come to the realisation that death penalty carries the chance irrevocable error and hence miscarriage of justice.

In December last year, the United Nations passed a resolution which asked the member states for “a moratorium on executions with a view to abolishing the death penalty.” According to Amnesty International, as of June 1, 2008, 92 countries abolished capital punishment altogether, 11 have done so for all offences except under special circumstances, and 34 others have not used it for at least 10 years or under a moratorium, while only 60 countries in the world actively retained the death penalty. In 2007, Pakistan was the second country in the world after China which awarded most death sentences. However, the number of executions in Pakistan is far less, as prisoners on death row keep languishing in jails due to flaws in the justice system.

The supporters of death penalty believe that it deters criminal elements in society from committing heinous crime. However, the deterrence value of execution has been established neither in Pakistan nor anywhere else in the world. In the words of the US Supreme Court Justice Thurgood Marshall, “The death penalty is no more effective a deterrent than life imprisonment… It is also evident that the burden of capital punishment falls upon the poor, the ignorant and the underprivileged members of society.” In the context of Pakistan, this is all the more true because of high expenses involved in achieving the ends of justice. As a matter of record, in Pakistan there was a 20.1 percent increase in crime last year, including those crimes that carry death penalty, thus falsifying the claim that it has a deterring effect. Moreover, in the presence of Qisas and Diyat laws, which allows the two parties to settle dispute outside court, death penalty becomes an enterprise in the hands of the wealthy, who could buy their freedom by paying blood money to the victim’s family in murder cases, while the poor have to pay by giving their lives. Moreover, submissiveness of the judiciary to the executive, corruption and political pressure all combined often lead to discrimination against the weaker party.

The basic argument of campaigners against death penalty is that it carries the chance of irrevocable error, because once an innocent person is hanged, it is impossible to correct that mistake. While the spirit of justice dictates that executing one innocent person is worse than letting a hundred guilty go scot-free. This is to suggest that there are other forms of punishment with which criminals could be dealt. Instead of eliminating those guilty of crimes, the focus should be on rehabilitating them. Moreover, without addressing the socio-economic factors that lead to crimes, the government cannot take the path of killing criminals to improve law and order.

Several cases in the judicial history of Pakistan are evidence of the fact that judicial and administrative weakness often lead to errors. The case of Mirza Tahir Hussain, who was sentenced to death for the murder of a taxi driver, clearly showed that our justice system is full of lacunae and contradictions. According to reports, Mirza Tahir Hussain, a Briton of Pakistani origin, then 18, came to visit relatives in Pakistan in 1988. Here he was charged with murdering a taxi driver and sentenced to death in September 1989 by a sessions court in Islamabad. He pleaded that the taxi driver, whom he had hired, had pulled out a gun and physically and sexually assaulted him and in the subsequent scuffle the gun went off, fatally injuring the driver. The Lahore High Court (LHC), however, overturned the sentence in 1992 due to serious discrepancies in the prosecution’s case, and sent the case back to the sessions court for retrial. The sessions court sentenced him to life imprisonment in 1994, but the LHC, on second appeal, again dismissed his sentence and acquitted him of all the charges in May 1996. A week later, the case was referred to the Federal Shariat Court (FSC) on charges including robbery involving murder. The entire case was reopened and the FSC sentenced Mirza Tahir Hussain to death in 1998, despite their acknowledgment that no robbery had taken place due to the taxi being hired. The FSC bench was split two to one and the dissenting judge, Justice Abdul Waheed Siddiqui, strongly recommended that Hussain be acquitted on the grounds that the prosecution case was inherently weak. Fortunately, after spending 18 years in jail, Mirza Tahir Hussain was pardoned by the president on the intervention of the British government.

Although the government’s step to commute the death sentence of 7,000 prisoners into life imprisonment is commendable, it has not introduced any change in the legal or judicial procedures of the country, nor will it prevent the judiciary from awarding death sentence in future. Given that the matter is subjudice, it is not even certain that this decision will take effect at all. However, it is hoped that a fruitful debate will follow among the supporter and opponents of death penalty and the public will be made aware of why death sentence does not meet the ends of justice in a country like Pakistan. This may lead the government to sign a moratorium on death penalty, which will halt the use of death penalty in Pakistan. The second step after that would be to minimise the number of offences that carry death penalty, which currently stand at 27.

The Frankenstein’s monster

 

Ishrat Saleem

 

One may find stark similarities between the story of Frankenstein by Mary Shelly and the current situation obtaining in NWFP. In the novel, Victor Frankenstein builds the creature through science and alchemy. The creature is so repulsive and ugly that Frankenstein flees from it in horror and disavows his experiment. Abandoned, frightened, and completely unaware of who or what he is, the monster wanders through the wilderness searching for someone who would understand and shelter him. All his attempt to find a friend are met with horror and disgust at his ‘accursed ugliness’. Heartbroken, he renounces all of humankind and swears revenge on his creator, Frankenstein, for bringing him into the world.A stream of news reports appearing in the press reveals that the situation in the NWFP is extremely alarming. Sixteen Christians were kidnapped by the Taliban from Banaras Town in Peshawar (later released on the intervention of a jirga). Ten girls’ school were set on fire and a soldier was killed and three injured in Swat. Eight drivers who were part of a food convoy were found dead in Kurram Agency last week. The Tehrik-i-Taliban are handing out leaflets warning transporters and drivers of grave consequences if they truck supplies to the Christian army in Afghanistan. Militants in Khar, Bajaur Agency killed two Afghan nationals in public on charges of spying – these are just a few of the recent incidents. Precisely, we are reaping the harvest of what we have sown over the years.

Finding it weak and vulnerable, the Taliban seem bent upon overthrowing the state. They have been carrying out their activities with ease and confidence in Swat, Khyber Agency, North and South Waziristan, Parachinar, Mohmand Agency, Bajaur Agency, Kurram Agency, Khyber Agency, Orakzai Agency, Darra Adam Khel, Tank district and even Peshawar. The other day a news report suggested that the fall of Peshawar into the hands of militants was a matter of time and once that happens the rest of districts will fall like ninepins.

When the military establishment headed by General Ziaul Haq decided to become part of the ‘great game’ to defeat the Soviets, who had invaded Afghanistan in 1979, it could never have imagined that one day it would have to face the demons it helped the US create back in 1980s. Having been compelled to withdraw from Vietnam in 1975 after facing defeat, the US had chosen to fight a proxy war in Afghanistan. The US as well as some countries in Middle East funded a network of militant jihadi organisations. A worldwide campaign was launched to induct recruits from the Muslim communities for jihad against Soviet infidels. These would-be jihadis were brought to Pakistan and trained to fight the invading army in Afghanistan. Finally, when the Soviet forces withdrew in 1989 and the Soviet Union collapsed shortly afterwards due to internal political and economic weaknesses, a huge victory was celebrated. Smug to emerge as a sole superpower, the US left the mujahideen in the lurch and spared little thought to rehabilitating war-ravaged Afghanistan. Infighting between various factions raged during most of the 1990s.

Numerous accounts confirm that the ISI, with chests swelled that its intelligence had brought a superpower down to its knees, believed that India was a fair game and could be bled to death in the same manner, hence the sudden upsurge of militancy in the Indian-held Kashmir. There were simultaneous insurgencies in countries of origin of the mujahideen, including Xinjiang province of China, Central Asia, Africa, Philippines and elsewhere. With militant networks intact, Islamabad decided to facilitate the installation of a friendly regime in Kabul acting on the doctrine of ‘strategic depth’. Thus the Taliban government was installed which was recognised only by Pakistan, Saudi Arabia and UAE. The Taliban were the children of the madrassas. Indoctrinated in extremist Islam, they had little exposure to human values of modern society and believed in the archaic interpretation of religious texts, which favoured returning to the social set-up of the 7th century which saw the advent of Islam. They believed in imposing their narrow interpretations of Islam through the force of the gun.

The tailor-made madrassah students were good for fighting jihad in Afghanistan, but nobody seems to have spared a thought that they were innocent people, who had the right to education and a chance to lead a normal life. Even after they went out of business, these elements were used by one party or the other to promote their cause. But promoting retrograde values to serve vested interest has its own costs. Feeding a monster also runs the risk of its turning against one’s own self, and this is what seems to have happened.

The Soviet withdrawal had a deep ideological impact on the jihadis, making them believe that they were responsible for this feat. Internationally, militants networks consolidated, the leading being al Qaeda, and carried out successful terrorist attacks around the world, the most notable being one in the US on September 11, 2001. Finding itself under attack, the US decided to take out al Qaeda hideouts in Afghanistan, which had the Taliban government’s protection. It was then that Pakistan had to take a difficult decision of severing close links with the Taliban and throw in its lot with the US. Pakistan was also compelled to launch an operation in the tribal area to take out militants using the area as a base to launch attack across the border.

There may have been many tactical as well as strategic mistakes in a U-turn in this policy, which has landed us into the current situation. Lt. Gen. (retd.) Orakzai, who oversaw the first deployment of troops, was in favour of negotiations to carry out the operation in collaboration with local supporters. However, this strategy was abandoned in favour of a full-fledged military operation, but soon the military found itself surrounded by the hostile populace and no sources of intelligence. It suffered heavy casualties and bombed indiscriminately whenever it did. Anti-American sentiments raged in the area and the local breed of Taliban systematically decimated the pro-maliks, who were crucial to the system of governance in the Federally Administered Tribal Area (FATA). While on the one hand, the government was busy making enemies of its erstwhile friends, on the other hand, after the initial crackdown on militant outfits in the country, the government allowed them to resurface and operate with new names. It also embarked upon a campaign to defend the institution of madrassa in the West. Analysts and close watchers of the situation argued that the government followed a dual strategy – saving the Taliban (with whom it had close ties) and taking out al Qaeda (the foreign elements). The government failed to calculated that touching al Qaeda would automatically evoke reaction from their hosts, the Taliban. The Lal Masjid incident in Islamabad should have served as an eye-opener that the erstwhile protégé had become independent of the mentor’s tutelage and was out to take on its creator. The much-delayed and the ill-conceived military operation on Lal Masjid and its fallout in the form of suicide bombings throughout the country have revealed that the mosque administration was closely associated with Baitullah Mehsood in NWFP. They were armed with sophisticated weapons and were confident that the government would not dare touch them. It was due to this confidence that they openly kidnapped ordinary people as well as security personnel in the heart of the capital. The situation is made much more complex by the fact that the militants in NWFP have been accused of using the area as a base to launch cross-border attacks on the coalition forces in Afghanistan, which has irked the US and Afghan government to issue threats of hot pursuit.

Unfortunately, at the time of Soviet-Afghan war and subsequently during Kashmir insurgency, so much investment was made to prepare the people to support and volunteer for jihad within Pakistan that they are still unable to make a distinction between lawful and unlawful. There are deep fissures in government, the media as well as the people’s perception on the issue of militancy. The jihadis have support among religious and right-of-centre political parties, the media, the government institutions, including the army itself. This is evident in their outreach and ratio of success in suicide bombings, which saw a steep rise after the Lal Masjid operation. They have struck at the place and time of their choosing, including the assassination of Benazir Bhutto. They have taken the entire society hostage. But the Pakistani public in general has still not been able to make up its mind that militancy is unlawful and dangerous. It runs the risk of decimating moderate sections of society by the force of gun, just like the Taliban rule in Afghanistan. There is also the perception that Pakistan is fighting a foreign war. This inherent confusion about the role of militants and now a fear of their demonstrated ability of persecution seems to be weakening the resolve of law enforcement agencies to fight them.

In this situation, the elected government finds itself in a fix. This is exhibited in the lack of coordination between the central and the provincial governments and conflicting statements by various government functionaries. The government is still holding out an olive branch to the militants in the province, who know they are negotiating from a position of strength. One may find solace in the government’s announcement of a three-pronged strategy of using political influence of elected representatives for holding peace talks, military effort to deal with recalcitrant elements and socio-economic uplift of the militancy-prone areas to isolate extremist elements. However, it is difficult to say whether the inherent confusion and divisions among our state institutions, political parties, media and the public will allow any efforts to curb militancy to succeed.

 

To conclude, it is the responsibility of the state to provide security to the citizens against militant activities. But do the powers-that-be recognise the dangers they have posed to the society and even the state itself by letting the monster of militancy grow out of proportion? One might ask whose interests are the militants serving when they go out and burn girls’ schools and CDs and barbers’ shops? Is the government (read the establishment) sincere in its resolve to fight extremism and militancy it once promoted with zeal?