But thanks to the International Federation for Human Rights (FIDH) and the Human Rights Commission of Pakistan (HRCP) for publishing a report documenting how the poor and marginalized were systemically discriminated against in the application of death penalty in Pakistan.
The very title of the report Punished for Being Vulnerable: How Pakistan Executes the Poorest and the Most Marginalized in the Society says it all. It calls for urgent action to address some policy and procedural issues lying at the root of executing the most vulnerable members of society.
The report, based on the investigations carried out last year, documents how fair trial rights of those accused of capital offences are violated, how death row convicts are kept in sub-human conditions, how juveniles and the mentally ill have been sentenced to death and how the social and economic toll is paid by the families of the convicts. In short, poor and vulnerable communities are the worst sufferers of the arbitrariness in the application of death penalty.
Not only has the moratorium on death penalty been lifted, the number of crimes punishable with death have also increased in Pakistan. Today, more than 30 crimes are listed to carry death penalty
A well-known example of the broken criminal justice system operating largely against the poor and marginalised is a three-year-old case involving two brothers accused of murder. They were acquitted by the Supreme Court only after spending years on death row. However, when the court orders reached jail authorities, it transpired that the two brothers had already been executed a year before.
There was a moratorium on executions in Pakistan from 2008 to 2013. During this period only one execution of a convict belonging to a defence force took place on the basis of the argument that it was necessary for “discipline in the force.” After the APS Peshawar massacre in December 2014, the moratorium was lifted but only for those convicted of terrorism. However, according to Justice Project of Pakistan (JPP), over 85 percent of the executions since then have been for ordinary crimes with no relationship to terrorism.
Legal experts, human rights bodies and concerned citizens have been urging a review of the death penalty. The states abolishing it have progressively increased. More and more Muslim countries including Algeria, Azerbaijan, Tunisia and Tajikistan have opted for a moratorium on death penalty. But while the world is moving towards abolishing capital punishment, Pakistan has been moving in the reverse direction.
Not only has the moratorium on death penalty been lifted, the number of crimes punishable with death have also increased in Pakistan. Today, more than 30 crimes are listed to carry death penalty. News reports which say that the government is considering a review of the laws that carry death penalty appear to be no more than a public relations exercise.
There are two areas that need close attention. One, for the long term, there is a need for a rational, broad based national debate on the effectiveness or futility of the death penalty. Two, for the short term, we must mitigate the risks of arbitrariness in the award of death penalty to the poor and marginalised.
The punishment for murder under Pakistani law is death or life imprisonment. An element of arbitrariness is unavoidable when a judge has to make a choice between these two punishments. Supreme Court judgments have held that death is the usual punishment for murder. But there are also court judgments calling for ‘justice with mercy’ and that reasons must be recorded why a judge has opted for death penalty in any particular case.
As argued in these columns before, the Quran lays great stress on mercy, compassion and forgiveness and ordains that forgiveness is a concession from God. This emphasis on forgiveness - instead of retribution - can lay the basis to institutionalise ‘justice with mercy’ and reformative instead of retributive justice. Indeed the deepening of the right to life, the raising of the bar of human dignity and due process, and stress on justice with mercy calls for a reconstruction of the religious thought.
At the World Coalition Against the Death Penalty in Amman, Jordan in November 2017, an Egyptian scholar perceptively commented that the Quranic injunction ‘in just retribution there is life for you’ (2:179) was a subtle suggestion that ‘qisas’ (retribution) was not revenge but protection of life. He noted that in the scheme of nature, emphasis is on life, not on revenge.
There is a need to broaden and deepen the debate on death penalty. The discourse needs to be taken beyond its narrow confines at present and wider population must be engaged in discussions on it.
While death penalty may be debated at a much broader forum for a long term policy, the state must act to provide minimum guarantees in the short term. These guarantees should include right to proper defence, protection against torture, sparing juveniles and mentally challenged from execution, reviewing the number of crimes that carry death penalty, provision of legal and consular services to migrant Pakistani workers sentenced to death and streamlining the procedure for mercy petitions against executions.
The author has been a member of the Human Rights Committee of the Senate