The Council of Islamic Ideology (CII)’s recent recommendation to allow public hangings without the need to legislate on the subject has created quite a stir. The council, in response to an opinion sought by the government, has offered an inconclusive and vague recommendation that could have dire consequences.
It has regarded the main objective of punishment in Islam to deter future crime that, in its view, could be achieved by reporting the execution rather than actually carrying out an execution in public. The council believes that this will achieve the same effect. What this does is create an unnecessary confusion about where the CII actually stands.
Furthermore, the council has rightly observed that the proper enforcement of the law and the certainty of punishment would, in reality, be much more effective to prevent crime. This indicates that public executions do not offer a concrete solution to the problem of child sex abuse.
Moreover, the legal provisions which have been mentioned in the letter – Section 10 of the Special Courts for Speedy Trials Act, 1992 and Rule.364 of the Jail Manual (the Pakistan Prison Rules, 1978) – do not serve to bolster the legal weight of their argument.
Both provisions have been interpreted by the council “to allow public executions”. Unfortunately, this observation of the council is impervious and relies on an incorrect understanding of the law. The act has been repealed under The Gazette of Pakistan, which was published on August 15, 1996. Under Section 2(1), “the Special Courts for Speedy Trials Act, 1992 (IX of 1992), hereafter referred to as the said act, shall stand repealed from...July 26, 1994”.
It is, therefore, quite embarrassing that the council relies on Section 10 of the repealed act which also – as per the judgement reported in 1994, SCMR 1028 – appears to be redundant for all intents and purposes. The Supreme Court had held in the judgement that public hangings, even for the worst of criminals, violate the right to human dignity as enshrined in Article 14. More importantly, the deputy attorney-general made a statement that the government would never subject any criminal to a public hanging.
By making a recommendation that goes against the dictum laid down by the Supreme Court, the council appears to have committed contempt.
There are also past precedents in this regard. Last year, in the ‘Dr Kumail Abbas Rizvi v UOP’ case, the Supreme Court, while discussing Article 14 of the Constitution stated: “The right to dignity was one of the cardinal principles of law and most valuable right, which had to be observed in every civilised society – human dignity, honour and respect was more important than physical comforts and necessities”. In another case, ‘Dr M Aslam Khaki v. Federation of Pakistan’, the court emphasised that the Quran “confers human dignity upon every person… subject to [the] law, the privacy of human being is also inviolable.
The council’s recommendation, in light of Rule.34 of the Jail Manual 1978 that relates to the admission of spectators to witness an execution, is flawed. Under the rule, the maximum number of spectators who are allowed to witness an execution is 12. In addition, the discretion has been given to the superintendent who has the right to refuse admission to spectators. It can be argued that bringing Rule 364 of the Jail Manual into the ambit of allowing such rights could be misleading. Hence, no such rights have been vested under this provision for the public to attend such proceedings. More often than not, only relatives are permitted to attend.
Questions over the site of an execution has been specifically dealt with in Rule 354 of the Jail Manual 1978, which states that: “executions shall normally take place at the district prison of the district in which the prisoner was sentenced, unless the warrant otherwise directs”. This provision also cannot be brought within the ambit of public executions because it explicitly states that executions can only be conducted at district prisons and not outside them.
The recommendations provided by the CII in relation to the amendments in the provisions of the law reflect an absolute non-conformity to the injunctions of Islam. They do not serve the requisite needs of our modern society that relies heavily on technological advancements.
The writer is an advocate.