Should Pakistan extend the moratorium on death sentences?
Soon after coming into power in 2008, Pakistan Peoples Party (PPP) put a five-year moratorium on executing prisoners on death row. The new administration in Islamabad, however, has decided not to continue the moratorium after it expired on June 30, 2013, sparking a nationwide debate on ending or retaining death penalty. The Herald put together a panel to discuss the issues arising out of the moratorium and its withdrawal as well as the legal, cultural and religious questions concerning death penalty.
Asad Jamal, one of the two jurists on the panel, is a leading advocate of the abolition of death penalty while Barrister Ehsanullah Shah, the other legal expert on the panel, champions capital punishment as the most effective deterrent to crime. The third member of the panel, Ali Dayan Hasan, is the Pakistan director for Human Rights Watch, a New York-based independent organisation dedicated to defending and protecting human rights worldwide.
Herald. What do you think about the government’s decision to withdraw the moratorium?
Ehsanullah Shah. Under our present circumstances, not extending the moratorium is not a bad thing. Death penalty, indeed, is a good deterrent. There isn’t much conclusive evidence to state otherwise.
Ali Dayan Hasan. The moratorium should continue. Death penalty is an inhuman punishment. Pakistan has one of the highest numbers of people on death row in the world — well over 8,000. Even if they are guilty of the crimes they have been convicted for, we have no way of knowing if their convictions are sound. Given how the criminal justice system works, most convictions do not meet international due process and fair trial standards.
Asad Jamal. All the reasons and factors which led to enforcing the moratorium remain as they were in 2008. Pakistan’s criminal justice system remains as flawed as ever; there is no assurance for due process and fair trial.
Pakistan must also fulfil its obligations under international law, especially the International Covenant on Civil and Political Rights (ICCPR) which states that, “no one shall be arbitrarily deprived of his life” [and] “no one shall be subjected to … cruel, inhuman or degrading treatment or punishment.” States today are heavily inclined towards putting a moratorium on executions and abolishing death penalty. According to Amnesty International, 140 countries have so far abolished death penalty either by declaring a moratorium on executions or by removing the punishment from statute books. The number of such countries was 123 in the year 2000 and just 79 in 1988. Even in states that want to retain death penalty – for example, India – there is a tendency to use it on the rarest of rare occasions.
Shah. There is a toss-up between convicting a potentially innocent man and letting go of a guilty man, the problem being that you are risking multiple other innocent lives who might suffer at the hands of the released guilty man.
I believe capital punishment is a necessary evil at the moment. Based on whatever little psychology I know, death penalty would be enough to make one think at least twice before committing a capital offence.
I fail to see how international conventions on arbitrary punishments apply to Pakistan. There is nothing arbitrary about legal procedure here. If death sentences could be handed out irrevocably by lower courts, then this argument would make some sense. But there is an exhaustive appeals procedure in place. That is anything but arbitrary.
Jamal. Arbitrariness in decision-making processes and unfairness of procedures and deliberate violation of due processes is an internationally recognised problem. This happens even in the best of systems.
Herald. In Pakistan, where Shariah laws are constitutionally and legally supreme over all other laws, is it even possible to talk about abolishing death penalty?
Shah. Now that the issue has been stirred, there will be a massive public backlash if the moratorium is not withdrawn. Like it or not, Pakistan is a democracy and the fact of the matter is that a majority of our population is pro-death penalty for various reasons. It would be highly undemocratic if the government were to not respect the mandate of the people. Tomorrow someone may decide that voting is not good for people and, before you know it, you are living in a fascist dictatorship. If one were to take a strictly legal argument, to not have death penalty – which is mandated by Islam – would be unconstitutional because Article 2A of the constitution states that Pakistan shall have no laws against Islamic injunctions.
Hasan. First, the entire business of ‘Islamic’ provisions trumping fundamental rights in the constitution is highly controversial. Secondly, even after accepting religious and cultural arguments, there is still room to ensure that death penalty is effectively not used. The issue is not of religious sanction but of constitutional protection of the right to life. Also, the number of offences inviting death penalty in Pakistan is staggering. Nothing prevents a reduction in the number of such offences.
Jamal. There is no consensus among different schools of Islamic jurisprudence and different Islamic states on the scope of death penalty. Even the Islamists have to take a utilitarian position on the effectiveness of death penalty. They cite perceived improvement in crime rate wherever death penalty is imposed.
Even if it is acknowledged that capital punishment is an element of Islamic tradition, it may be argued that Islam prescribes a more limited scope for death penalty. The demand for immediate executions to comply with Islamic ‘tenets’ sounds even less convincing when viewed in the context of Islamic concept of pardon by the family of a victim of bodily harm.
There is room within the Islamic tradition to reconsider death penalty. There is this concept of ijtihad — in a new set of circumstances, old traditions can be revisited and modified without violating the fundamental principles of Islam.
Let us assume that the moratorium is lifted today. How do we plan to execute all the death row prisoners whose convictions have become final? Would we like to execute all of them simply because we have blind faith in something which is, in fact, of limited utility? Reviving death penalty with more than 400 people under the threat of being immediately executed, Pakistan runs the risk of being seen as a killer state.
Shah. I am not in any way saying that we should have death penalty because Islam mandates it. I am simply stating that there will be a public backlash. With regards to the position that there is no evidence that capital punishment is a deterrent, there is also no evidence to support the contrary either. There are various studies that show that executing one murderer on average saves about seven lives. Other variants of this study support even higher numbers.
Jamal. Data shows that death penalty does not contribute to a reduction in crime rate. In Canada, for example, homicide rate per 100,000 people fell from a peak of 3.09 in 1975 – the year before the abolition of the death penalty for murder – to 2.41 in 1980. In 2000, homicide rate in Canada was 1.8 per 100,000 people and 5.5 per 100,000 people in the United States, where death penalty is still applied. Some American states that reinstated capital punishment during the 1970s have not seen their crime rates drop. On the other hand, the states which did not reinstate death penalty have not witnessed a rise in the crime graph.
Shah. Do you think that putting a person behind bars for the rest of his natural life is not cruel, or even unusual?
Jamal. I am not saying that there will be no problems attached to life imprisonment. Long-term imprisonment without the possibility of parole is being increasingly seen as cruel and inhumane and a recent decision by the European Court of Human Rights has held so. But to feign that there is no alternative to death penalty is misleading. Instead of reviving the death penalty, we should be more concerned about our criminal justice system, prisons reforms, police reforms and, above all, the prevention of crime through better social conditions.
Europe has a lower homicide rate despite the fact that the European states don’t have death penalty. Despite the fact that people there know that they will not be hanged for committing murder and, in fact, may be able to come out of prison after some time, they are still less likely to kill than those in a country like Pakistan which retains the death penalty.
Shah. It is not the absence of death penalty that leads to the fall in homicide rates, but vice versa. Crime rates in Europe fell before the countries there did away with death penalty.
Jamal. Which means you need to recognise that there are other factors which lead to lower crime and homicide rates. Why not work in that direction instead of executions?
Shah. How do you deal with a terrorist responsible for taking hundreds of lives? If you put him behind bars, the next day, his organisation will take a school bus hostage and demand his release. Are you willing to take responsibility for the lives of those children?
Jamal. The answer to that problem lies elsewhere — in the enforcement of the state’s writ.
Herald. Without abolishing death penalty, the moratorium on executions only prolongs the agony of those on death row…
Hasan. Yes. Being in legal limbo is abusive and unfair. But there is nothing more unfair than being put to death. It is irreversible.
*Should Pakistan extend the moratorium
on death sentences?
*The above question was posed to readers online during the discussion.
Maheen. Is abolishing death penalty possible?
Jamal. Apart from lack of direction and misconceived concepts about Islamic law, there is also international politics. Pakistan has since long aligned itself with the countries primarily based in the Middle East. Since 1980s, these countries have put up great resistance against international efforts to abolish death penalty. Professor William Schabas, in his article titled Islam and the Death Penalty, notes it was during Ziaul Haq’s regime that a lot of ‘scholarship’ was generated to establish Islamic roots of death penalty. The aim of the whole exercise by Zia was to create a constituency for himself and deprive the citizenry of its civil rights.
JT. What about terrorists killing people unabated? Will there be no death sentences for them either?
Jamal. Terrorism does not exist because we don’t execute the perpetrators but because we can’t investigate cases and can’t ensure convictions. Studies show that certainty of conviction rather than the harshness of punishment deters crime. The proponents of death penalty argue that many death row convicts involved in terrorism continue to operate terror cells from prisons. Is it because there is a moratorium on executions or is it because we have a weak state that cannot make its prison system foolproof? Does this mean that prisoners who are not on death row have not been operating and running gangs from prison? Are we arguing for instant extrajudicial killings by saying that terrorists shouldn’t be jailed? If the prisons cannot be secured to stop death row convicts from operating from them, then why we should have prisons at all?
Hasan. The idea that capital punishment is used – effectively or otherwise – against high-profile militants is not backed up by data. In any case, you do not deter or end terrorism by hanging people. You do that through effective counter-terrorism policies and by creating a rights-respecting rule of law. Also, the moratorium has not led to an increase in terrorist activity in Pakistan.
Javed. Islam adheres to the concept of ‘an eye for an eye’. What is wrong with that?
Jamal. The concept of an eye for an eye may have been an improvement on the popular concepts of justice in the pre-Islamic days because it introduced the concept of proportionality in the penal system. Today, such a concept has become an articulation of revenge rather than of justice.
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