Sack the hangman: ‘The death penalty is not for the worst crime, but the worst lawyer’

Criminal justice system of Pakistan, with all its flaws, gives immense space for injustice, lawyers argue.

LAHORE:

How can the state murder its citizens?” asks Barrister Zafrullah Khan, a senior advocate who has been waiting for his petition on abolishing the death penalty to be taken up by the Supreme Court since 2011. “Constitution is for the protection of the common man, but in Pakistan, where majority of prisoners given capital punishment are the poor, it looks like the state failed in protecting them,” Khan says.

In his petition, he maintains that the “right to life” in Article 9 of the Constitution is violated when a life is taken by the state, and added that the criminal justice system of Pakistan, with all its flaws, gives immense space for injustice.

In October this year, he filed a plea for his earlier petition to be heard.

Shifting the debate
Faisal Siddiqi, a lawyer from Karachi runs a firm that has defended many death row prisoners pro-bono. Siddiqi says it is not possible to abolish the death penalty in Pakistan because the penal code is Islamised; the abolishing, therefore, will be unconstitutional. He adds that the debate on abolishing death penalty is “romanticised.” How will the state rehabilitate serial killers and terrorists, and does the state have the capacity to do so? he asks rhetorically. However, he adds that the framework for debate on death penalty in Pakistan needs to change.

The debate needs to focus on “judges and their discretion when hearing an offence with death penalty as the maximum punishment,” says Siddiqi. There must be “accountability for judges’ discretion, who usually hit a sixer for death penalty,” he adds.

Systematic problems

The fact that it is a norm to award death penalty by judges, primarily from the lower judiciary, is criticised widely by lawyers defending prisoners on death row. The high number of lower courts’ capital verdicts over-turned by the high courts adds weight to the argument. Lawyers say there is a complete absence of due process and the death penalty is awarded to the poor in heaps in Pakistan.

“The death penalty is not for the worst crime, but the worst lawyer,” Siddiqi says, adding that legal aid plays a critical role in acquittal. Access to competent legal aid is not available to the majority of prisoners involved in trial for capital punishment, he adds. Meanwhile, defense counsels provided by the state are either incompetent or in many cases not interested in even appearing for hearing, says Siddiqi.

However, he adds, that is largely due to late payments to defense counsels, insufficient number of lawyers and lack of incentive and training for them.

There is a consensus amongst lawyers though that criminal law and death penalty convictions are tilted against the accused, and the poor are worst hit by it.

“It is very common for witnesses to perjure, or willfully lie, here. In fact our judicial precedence has evolved to deal with the issue of perjury, but not to deal with it in a sense that charges should be brought against witnesses in a capital case who are found to be lying,” says Sarah Belal, Director Justice Project Pakistan, a non-profit law firm which has represented death row inmates pro-bono and has helped them acquire mercy petitions.

Learning from India

Secretary General of the Human Rights Commission of Pakistan, I A Rehman insists that the issue of capital punishment is “political and not religious.” The right wing and the clerics want their monopoly and the “state continues to appease them.”  The government and legal minds should work on reducing the number of offences with death penalty as the maximum punishment, insisted Rehman.

India is the closest example for legal experts and lawyers in Pakistan for judicial precedents in death penalty cases, due to the similarity in basic legal frameworks of the two countries.

The country has reportedly executed 51 prisoners, since 1947, of capital punishment and follows the “rarest of the rare standard.” The courts there lay emphasis on considering the socio-economic “circumstances of the criminal” which are part of the context in which crime is committed.

Garnering sympathy

Lawyers say stories of the condemned prisoners need to be told to create an atmosphere of sympathy for them in an otherwise pro-death penalty society.

“I have seen prisoners of death row from proximity and interacted with them. Cramped in small cells, they struggle with disease and their ability to think and feel withers away,” says Khurshid Ahmed, a former inmate imprisoned for life, and brother of Dr Zulfiqar Ali, a condemned prisoner who unintentionally killed two strangers in self defence and has been behind bars for 14 years. Ali received help via JPP that filed a mercy petition for him to the president.

Ahmed now works as an investigative officer at JPP, which is the only chance at rehabilitation he had after being shunned by his immediate family.

Prison Fellowship Pakistan’s executive director, Arthur Wilson, says he only started working with condemned prisoners after witnessing the miserable lives, lived in a cell of 10 by 10, with four to six other death row inmates.

The same cell serves as a toilet, bedroom and dining area. TB, AIDs, STDs and Hepatitis are common among prisoners. Currently, one of the cases Wilson is working on includes that of a Christian man who has been on death row for 15 years due to faulty investigation of a murder for ransom case. He is now on his death bed due to Hepatitis.

Published in The Express Tribune, November 12^th, 2012.