The Force of Law

Pakistan has the misfortune of being periodically bashed by the international media. Recently, it has been the uproar over the revival of the death penalty. The European Union, UN Office of the High Commissioner for Human Rights, Amnesty International and Human Rights Watch, called for reimposition of the moratorium on executions.

Locally, the HRCP criticised the measure, arguing (without any study/survey) that execution of convicts has no nexus with the crime rate in the country. Some columnists also cautioned the government to exercise restraint, lest innocents get hanged for want of a fair trial.

The moratorium was imposed in 2008 as a condition for getting the GSP Plus status with the European Union. Reportedly some 8,000 convicts, proven guilty for heinous crimes including terrorism, were languishing in prisons – with growing attacks by the Taliban to set them free. In April 2012, in a daring assault on the Bannu prison, 400 prisoners were released, followed by another audacious attack (in July 2013) at a prison in D I Khan, resulting in the release of another 248 hardened criminals. This caused alarm and panic in the country: the KP government asked the centre to transfer Dr Shakil Afridi, a high-value target (alleged facilitator of the US raid on Bin Laden), from the Central Prison Peshawar. There were calls for resumption of executions of condemned prisoners.

The government was, however, in a quandary: the moratorium could not be lifted without the risk of losing the GSP-Plus status. Public pressure then intensified after the horrific incident of APS, Peshawar. The government relented and executions resumed.

The global community is divided over the imposition of capital punishment. It has abolished or suspended in 140 states but still practised in 63 others. In Pakistan, the death penalty is prescribed for various offences, ranging from murder, bomb blasts/suicide explosions to narcotic/drugs, gang rape, blasphemy, etc. It is in our constitution and sanctioned by the substantive/procedural law.

Under the constitution, the right to life is not absolute but qualified; hence the state has the right to award capital punishment. There is yet another aspect of the death penalty: it is imposed under Islamic law, which carries supremacy. The constitution stipulates that any existing law repugnant to the injunctions of Islam is invalid (Article 203D), and all such laws must be brought in conformity with Islamic injunctions (Article 227).

Islamic law lays stress on the sanctity of life. Says the Quran: “On that account: We ordained for the children of Israel that if anyone slew a person – unless it be for murder or spreading mischief in the land – it would be as if he slew the whole mankind: and if anyone saved a life, it would be as if he saved the life of the whole mankind” (Sura 5:32).

Thus, Section 302 of the PPC prescribes Qisas as punishment for the offence of murder. It is a private right of the heir of the victim and can be compounded by Diyat or forgiven without compensation. And whereas the president has the power to grant pardon (Article 45 read with Section 402A of the CrPC), such power cannot be exercised in respect for the penalty of Qisas without the consent of the heirs of the victim (Section 402 of the CrPC). Besides Islam, other revealed religions – Judaism and Christianity – also permit capital punishment. Israel practises capital punishment for major offences including treason and war crimes/crimes against humanity. Some states in the US also practise capital punishment.

The insistence of the European Union on abolition of the death penalty is unfair, keeping in view the troubling times. Its stance is baffling, for it doesn’t object as vehemently to the killings of hundreds of thousands of innocent people in the illegal/unjustified wars in Iraq, Syria and the drone strikes in Pakistan. Capital punishment is awarded to convicts proven guilty for the heinous offences of murder, bomb blasts, terrorists’ acts, etc.

The European Union has also reminded Pakistan of its obligations under the International Covenant on Civil and Political Rights 1966. Let it be clarified that this convention, far from imposing a total embargo on capital punishment, permits it for serious crimes. It however bans the death penalty for children under 18; that is fully complied with under the Juvenile Justice System Ordinance 2000, which prohibits, inter alia, death sentence to minors below 18 years of age.

The abolitionists’ often-quoted arguments are that the death penalty is cruel, inhuman, degrading, and that convicts are likely to suffer irreparable/irreversible loss due to a defective criminal justice system, etc don’t stand to logic, as the same arguments equally apply to the suggested alternative punishment of imprisonment for life.

What then is the likely scenario: letting the murderers/terrorists get way and relapse into Hobbes’ state of nature: “war of every man against every man”, making “life solitary, poor, nasty, brutish and short”. Further, the counter-narration of pain/suffering inflicted on a victim and his/her family, disturbing the social balance in society, flouting the writ of the state, is missing from the discourse. It is a cardinal principle of morality and justice that the convict gets his just desserts to assuage the angry sentiments of both the victim and the community.

The government therefore need not be influenced by such criticism. The executions are legal; the moratorium was illegal since executive notification cannot override the law. The country is passing through a turbulent period. There is no security of life/ property; even highly guarded ministers/political leaders are being targeted. There is an escalating trend of violence coupled with bomb blasts and suicide explosions by militants/terrorists. In these circumstances, the country can ill afford to lower its guard by abolishing the death penalty and giving a free hand to militants/terrorists to operate with impunity.

After normalcy returns, the government may refer the matter to parliament as it requires research and study. The law must be reviewed to restrict the scope of anti-terrorism law and ensure that capital punishment is awarded in serious/heinous crimes. The law/constitution are not immutable but organic and open to reform. The provision of Qisas requires review.

Law, in order to remain relevant, must evolve with the vicissitudes of time, emerging realities and socio-economic conditions. Our criminal justice system is also in dire need of reform/improvement to prevent the miscarriage of justice.

The writer served as secretary, Law & Justice Commission of Pakistan; director general, Federal Judicial Academy; and registrar, Supreme Court of Pakistan.

By: Dr Faqir Hussain

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