THE government has not abolished the death penalty. That will need much more than an order by the chief executive. Yet the move to commute the death sentence to life imprisonment in many cases has given rise to a debate that is likely to be messy and bitter. A satisfactory conclusion will be possible only if discussion is objective and comprehensive.
For a variety of reasons Pakistan authorities have kept the people unexposed to the international discourse on justice, criminology and human rights. Thus whenever new standards in these areas are mentioned, people feel some fresh conspiracy has just been hatched against them. The reaction to the move regarding the death penalty cannot be any different.
The fact is that the movement against the death penalty had its origins over a hundred years ago in efforts aimed at replacing the medieval concept of retributive justice with reformative justice. These trends led to the realisation that capital punishment deprived the guilty of an opportunity for atonement and thus did not contribute to the establishment of justice.
Thus, in 1863 Venezuela became the first country to abolish the death penalty. By now, over 115 states have joined it. In the meantime, the United Nations has adopted a protocol to the International Covenant on Civil and Political Rights, just signed by Pakistan, which calls for the abolition of the death penalty. However, international humanitarian protocol only stipulates that offences carrying death penalty should be as few as possible and that this punishment should be awarded in extreme cases and then too after a trial that meets international standards, or in times of war.
In the process, two myths have been demolished. First, it was proved that the death penalty did not act as a deterrent; indeed crime rate generally fell in societies that shortened the list of capital offences. This finding is in accord with Pakistan’s own experience.
Secondly, the progressive human mind grew out of the notion that a criminal’s punishment alone could compensate the victim. Society came to be held at least partly responsible for each crime it failed to prevent and therefore compensating the victim became the responsibility of the state. When it was realised that miscarriage of justice could not be ruled out, this became an argument for avoiding a punishment that could not be reversed.
Unfortunately the discussion in Pakistan has been dominated by clerics who work themselves into holy rage at the slightest reference to any curtailment of the death penalty regime, as if Islam prescribes a single punishment for all offences — beheading.
The matter has been examined in detail by the Council of Islamic Ideology (CII). Although there is a difference of opinion among students of law on the application of belief to criminal laws, those who advocate enforcement of religious laws have no reason to question the advice of the CII. In a wide-ranging report issued in 2007, the council has reiterated the jurists’ consensus that Islam sanctions death sentence only in case of murder and fasad fil-arz (riot in the world).
In the same report the CII has argued that the final Islamic punishment can be awarded only when evidence against an accused is so complete that no doubt about his culpability is possible. Pakistan’s penal code says the same thing when it admits of the capital punishment only when the guilt of the accused is established beyond a shadow of doubt.
Given the state of the judiciary, the extent of corruption in society and the dearth of people learned in religious concepts, it is doubtful if the strict test prescribed for awarding death sentence can be met in Pakistan.
Thus, belief cannot be invoked to demand death penalty for most of the crimes that have been added to the list of capital offences. The need for interpreting fasad fil-arz narrowly and not broadly is obvious. While there may be reason to condemn the killing of innocent people by sectarian militants as fasad fil-arz, every violation of law cannot be put in this category.
Many victims of crime and their families are also quite vociferous in demanding death for culprits. This is the result of brutalisation of society during Gen Ziaul Haq’s reign of terror. It was in that period that the masses started loving the spectacle of human beings dangling by the gallows and worshipping rabble rousers who vowed to hang all offenders (especially their political rivals) by the lamp post.
All such people need to be convinced that justice is not promoted by clamouring for the head of an offender.
One of the most devastating attacks on the system of justice has been the enforcement of the Qisas and Diyat Ordinance and the way it is interpreted. Murder is no longer a crime against society; it is now a private affair between the killer and the victim’s family. If a murderer can persuade the victim’s family to forgive him either by accepting blood money or out of fear of further mischief by his party, he can go scot-free at any stage of the case.
This is contrary to law which clearly allows courts to punish murderers even if they win over the victim party. Besides, nobody becomes entitled to pardon unless he is found guilty. But such is the fear of challenging anything prescribed as dogma that resourceful criminals have been winning acquittal before they are tried.
A man killed his daughter, and asked his son to confess to the crime. Shortly afterwards the father, the killer, exercised his prerogative as the victim’s wali to forgive the accused and he walked out of prison a free man. In another case, a man who had been found guilty of killing his wife was not given a death sentence on the ground that he was his children’s wali.
The power of celebrated criminals to oblige families of their victims to forgive them was underscored when a woman led her children into a court and begged the judge to forgive the killer of her husband because she did not want her little ones killed.
Those who invoke belief to justify the death penalty forget the Islamic dicta that the execution of an innocent is far more reprehensible than the acquittal (for lack of evidence) of an offender, and that forgiveness is preferable to revenge-seeking.
All those interested in the subject should consider whether Pakistan has promoted justice by prescribing death penalty for 27 offences instead of two at independence, and whether anyone should be sent to the gallows when chances of miscarriage of justice are as great as everyone knows them to be. At the same time the government should learn to educate the people on its reform ideas instead of springing surprises on them.
Daily Dawn, 3/7/2008