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.

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