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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.


Long march: a symbol of hope or a fading struggle?


Ishrat Saleem



The issue of the restoration of judges waiting the elected government’s action does not concern restoring individual judges. It is no longer the issue of the independence of judiciary only. The question is whether or not the government installed after the election of February 18 considers the measures taken by the president on November 3, 2007 when he imposed emergency – as a result of which 60 judges of the high courts and the Supreme Court, including the Chief Justice, refused to take oath under the Provisional Constitutional Order (PCO) – as illegitimate.


Even after the passage of about four months since coming to power, it is unclear that the government led by the PPP has the will and power to undo actions taken on November 3, compelling the lawyers to march up to the capital. The purpose of the long march that started on June 10th and came to an end peacefully in the wee hours of June 14, 2006 was to compel the coalition government to fulfill the promise it made in the Murree Declaration on March 9. Lawyers, students, political activists, civil society members and ordinary citizens participated in the march with great zeal to demand the restoration of the judges through a resolution of parliament. The participants of the long march exceeded by far the numbers that were present in a gathering called by Musharraf cronies on the same venue on May 12, 2007, where the president had claimed that the killing of 42 innocent citizens was a ‘reaction’ of the people on the arrival of the Chief Justice of Pakistan in Karachi. State machinery had been employed to herd people, mostly staff of government institutions and people who wanted a free meals and free ride to the capital. However, more than the numbers, the long marcher’s commitment and passion and the initiative of organising such a huge protest without any political organisation or state machinery at their back deserves the highest praise. People of all hues and backgrounds tried to capitalise on this occasion to make their point. Thus the issues of provincial autonomy, missing persons, power shortage, unemployment and inflation resonated during the march along with the restoration of judges.


As the long march coincided with the presentation of the national budget, it captured the media spotlight that is usually reserved for the discussion of the budget. The government quietly used this occasion to introduce an amendment in the Judges Act to increase the number of judges from 17 to 29 through the Finance Bill. When President Supreme Court Bar Association Chaudhry Aitizaz Ahsan announced the end of the long march without staging a sit-in before parliament, bigwigs of Pakistan People’s Party (PPP) heaved a sigh of relief. The long march had managed to send a very strong message to the ruling party. It remains to be seen whether the political forces have their fingers on the pulse of the people and act accordingly or prefer behind-the-scene dealings over the mandate of the people.


There is no dearth of cynics who dismiss the momentous struggle sustained by the lawyers as the handiwork of the vested interests. There are also those who think that the entire lawyers’ movement is a matter of ego of one person, i.e. the deposed Chief Justice Iftikhar Mohammad Chaudhry. But the consistency and commitment with which the lawyers continued their struggle in extremely hostile conditions, being beaten by law enforcement personnel and even forgoing their incomes by boycotting the courts have earned them credibility and the respect of the people.


Talking to Vista in March last year, then president Supreme Court Bar Association Munir A. Malik had said that the leadership of lawyers wanted to raise awareness at three levels: first among the masses, second among the superior judiciary and third among the political forces. The lawyers’ leadership wanted to educate the masses on the concept of the rule of law, the supremacy of the constitution and their rights as stipulated in the constitution. The superior judiciary which colluded with unconstitutional governments and legitimised their rule throughout the history of Pakistan needed be made aware of its independent position and power to be able to stand for the people and uphold the sanctity of the constitution. The lawyers’ movement also sought to push the political forces to become the true representatives of the people, respect their rights and exercise the authority vested in them by the people rather than playing second fiddle to unconstitutional forces.


The lawyers’ struggle seems to have succeeded in the first two of its three goals to a great extent, as evident from the surfacing of an ‘activist’ class among students and young professionals throughout the country. The media too has played a crucial role during the struggle by disseminated the news, opinions and objectives of the lawyers’ movement to a wider audience. One may compare it with the consciousness of identity and self worth that Zulfikar Ali Bhutto inculcated among the masses when he launched the PPP during the anti-Ayub movement of 1968-69. Harking the revolutionary programme of the PPP, the people associated their hopes and aspirations with the party, despite the fact that the leadership of the PPP failed them more than once. At a time when people were completely disillusioned with political parties, the lawyers’ movement raised a voice against the illegitimate rule of one man and induced a hope among the masses. However, the political forces failed to take cue. It seems that the lawyers have a long way to go before they could convince the politicians to rise above their vested interests and steer the nation towards progress and prosperity.


By all measures the PPP-led government has failed to come up to the people’s expectations. It has now become abundantly that the PPP’s conduct is all but transparent. So far the government has not fulfilled any of its commitments it made to the nation since it was sworn to the office. The PPP has launched a constitutional package, which includes a formula for the restoration of judiciary, but in the absence of the requisite majority in Senate, it may well be an attempt to postpone the matter indefinitely. Moreover, the recent statements of the PPP co-chairman bespeak of an egotistic, feudalistic style of politics unsuited to the genius of the people of Pakistan. He dismissed the long march by stating that his party could put up a better show of strength. On the one hand, he say Musharraf is a ‘relic of the past’, on the other he refuses to impeach the president. More recently, addressing a public gathering of party activists at the Governor House in Lahore, he claiming that soon the presidency will be controlled by the PPP. This lack of consistency is strengthening the perception that the PPP is once again busy in negotiation a deal with the establishment. However, it is not without a cost; the PPP is fast losing its credibility.


Although Pakistan Muslim League-Nawaz leadership expressed support for the long march, it lacks the requisite numbers in parliament to annul the decisions of November 3, 2007. Smaller parties such as Pakistan Tehrik-e-Insaf and Jamat-e-Islami, which have no stakes in parliament since they boycotted the elections, found it expedient to make their presence felt. Apart from the PPP, conspicuous by its absence from the long march was Awami National Party (ANP). Being a coalition partner and holding the reins of the provincial government in NWFP, which is in the grip of an insurgency-like situation, ANP’s stance on the restoration of judges is of crucial importance, and for the moment it seems to be riding along with the PPP.


The other day, Nawaz Sharif and Asif Ali Zardari met for what now appears to be umpteenth time to iron out their differences over judges’ restoration, but failed once again. After a second meeting in three days between the two leaders, Asif Ali Zardari was able to convince Nawaz Sharif to support the Finance Bill introduced by the PPP, seeking amendment in the Judges Act to increase the number of Supreme Court judges from 17 to 29. The inclusion of the amendment in the Finance Bill circumvents the normal legislative procedure to amend a law that requires passage by simple majority in both houses of Parliament. The Finance Bill contains budgetary provisions and is voted only in the National Assembly. The controversial amendment is being hotly contested as the lawyers’ leadership has rejected it on the ground that it is meant to accommodate the judges who took oath under the PCO. Nawaz Sharif too now seems to regret his decision as he has been disqualified from contesting elections by the full bench of Lahore High Court.


The failure to settle the basic question associated with the restoration of judges – what kind of political system Pakistan is going to have post-Musharraf – is distracting attention from other aspects of governance. At this point, it is essential to decide whether we want to continue with the old system of the elected government sharing power with the ‘establishment’ or shift the balance of power towards the people.

Continuing disagreements among political parties on the issue of restoration will benefit the unconstitutional forces, which want to maintain their hold over power. In the current scenario, if the political actors think they can carry on by pandering to the invisible actors rather than working to alter the configuration of power in favour of the people, they are heading for a disaster. It was hoped that time in exile/incarceration had induced some maturity among them to unite against the extra-constitutional forces, whose prime strategy has been to keep the political forces, disorganised, weak and subordinate. At least initially, this was the message that came when the PPP and PML (N) decide forget past rivalries and join hands to form the government. But if political parties give an impression that they are trying to fool the masses and in reality pursuing the vested interests once again, they will lose face in public.

Had these events happened a decade earlier, it would have been perfectly easy for the government to hoodwink the public outcry, but not this time. It is going to be difficult for both the elected government and the invisible, but ubiquitous ‘establishment’ to ignore the biggest stakeholder in the power configuration – the people. The successful holding of the long march on Islamabad should leave no space for doubt that people are alive to their stakes in the political system that governs the country, they are organised and ready to fight for their cause. Whether or not the lawyers sustain the struggle for the restoration of judiciary, the very fact that there are sizable numbers among the populace who are keenly watching and discussing the government’s conduct leaves little space for manoeuvring.