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January 1, 2015

A capital storm


January 1, 2015


A near-perfect storm is now swirling around capital punishment in Pakistan where a seven-year old moratorium has recently been lifted in the wake of the Peshawar tragedy. The EU is against the decision, being an ardent supporter of abolishing capital punishment globally. In accordance with a 2008 report, 137 countries had abolished death penalty in law or in practice while the US, Iran, China, Saudi Arabia and Pakistan retained it and accounted for 88 percent of the world’s executions.
In an indirect manner, some political parties in the country are also whipping up opposition through objections to the government’s current efforts to institute military courts through an amendment to the constitution for speedy justice. It is not difficult to see that such resistance is not so much out of deference to human rights or any consideration for the constitution of Pakistan, but out of fear that a combination of speedy trials and lifting of moratorium would adversely affect their politics which so far have had a strong streak of violence.
The EU position is understandable; it saw Pakistan as a country on the ‘cusp’ of abolishing the death penalty when former president Asif Ali Zardari imposed a ban on executions in 2008. Recent developments have reversed that status. The EU had invested much effort with the Zardari regime through political arm twisting through the European Instrument for Democracy and Human Right (EIDHR), matched by its mechanism of funding through the European Commission. But Zardari was confused; on the one hand the government was imposing a moratorium on capital punishment and at the same time promulgating the Prevention of Electronic Crimes Ordinance which included ‘cyber terrorism’ in the list of offences warranting the death penalty.
In countries where the death penalty situation is still in flux, EU has been striving for adherence to minimum international standards – imposing capital punishment only for the most serious

intentional and violent crimes, not imposing it on anyone less than eighteen years of age, pregnant women, new mothers, or persons with mental disorder. The standard requires a fair trial where the defendant benefits from legal assistance and has recourse to an appeal process. Also every endeavour is made that there is minimum possible suffering while carrying out the punishment.
But it has taken centuries for Europe’s civilisation to arrive at a stage where as a society it considers the death sentence to be cruel, inhuman and irreversible and would like to abolish it for the sake of human dignity and progressive development of human rights. Also historically Europe has used a whole range of very painful methods to inflict death on convicted prisoners which are too gory to be narrated here.
It is audacious to think how a punishment that snuffs out life out of an otherwise perfectly healthy body, can be termed as causing less suffering than another, but certainly there is a difference between hangings as per Pakistan’s jail manuals which bring life to a sudden end as opposed to some of the seemingly sophisticated methods in the west. Earlier this year, Dennis McGuire, who was administered a lethal injection in an Ohio jail writhed in acute and miserable pain for nearly fifteen minutes before breathing his last.
It is also interesting to note that in the past, most of the offences for which the death sentence was awarded in Europe, were minor compared to today’s standards. It is only through a process of evolution that the public mind in Europe accepts interning a mass killer like the Norwegian Anders Breivik on an island for 21 years as punishment for killing 77 innocent lives in 2011 – the highest in Norway for such offences – just over three months for every person killed. Indeed life couldn’t come have cheaper in a society where it is otherwise so valued.
Pakistan is relatively a nascent state on the timeline of global civilisation. It inherited English jurisprudence tailored to serve the purposes of erstwhile colonial masters when it came into existence. Under the best of circumstances, we are never a very stable society and governments of every hue have been found struggling to keep the crime rate to a manageable level. Historically, the death sentence has never reduced the crime rate to zero but it has helped lower it. Towards that end, capital punishment in Pakistan had an element of fear for would-be offenders and acts as deterrence.
Over time, as societal turbulence increased, the number of offences punishable by death has also risen but in spite of the heinous nature of the crime in some cases, Pakistan has never violated the minimum international standards. Successive governments, except for a brief period during General Ziaul Haq’s rule, have also kept capital punishments out of public view despite public pressure as is being witnessed these days.
The social fabric of today’s Pakistan has been ripped apart by a process started decades ago by former President Ronald Reagan when he chose to fight the ‘evil empire’ in Afghanistan by dusting off the concept of armed Islamic jihad and employing it as a weapon in the game between superpowers.
Terrorism refuses to die as was witnessed in Peshawar recently. That element of fear which was meant for would-be offenders through the death penalty has struck deep into the hearts of our mothers, sisters and children and has made normal life impossible. This fear has to be taken out of our people and put back into the hearts of those who perpetuate such heinous crimes. The citizens of Pakistan deserve some peace of mind and if it is through capital punishments, let it be so.
A guiding principle for capital punishment enunciated by Prophet Muhammad (pbuh) mentions only three offences – murder, illegal sexual intercourse committed by a married person and apostasy. Pakistan’s penal code, however, prescribes death sentence for 27 different crimes which can perhaps be reviewed downward in deference to global sentiments on the issue especially where crime has been checked effectively.
But any outright move to abolish capital punishment will not only aggravate the law and order situation but also be a breach of the country’s constitution which declares that no law shall be enacted against Islamic injunctions as stipulated in the Quran and Sunnah.
The former chief justice was recently asked why the conviction rate in the anti-terrorist courts was so low to which he responded by admitting that when evidence falls short, the courts have no option but to let the accused go free. This is a perfectly legal approach but the question honourable judges should be asking themselves is whether doing so always serves the ends of justice.
Would justice be better served if in an odd case of huge public interest, and where the judge is convinced beyond any shadow of doubt that evidence has been intentionally left patchy during investigation under pressure from the powerful, the judgements are in response to public expectations and not a computerised outcome of the arguments in the courts?
That said, the real issue we should be looking at is that, as far as possible, no innocent should be deprived of his life due to miscarriage of justice. Our existing legal system is highly flawed where self-confessed criminals of major crimes roam about freely and the innocent get punished.
The EU would therefore do well to channel its EIDHR support, complemented by European Commission funding, towards bringing about much-needed jurisprudence infrastructure reforms in Pakistan rather than focusing on the moratorium on the death penalty.
The writer is a retired vice admiral. Email: [email protected]




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