Capital punishment in Pakistan's legal system: Where is the justice?

Our prisons are a deplorable reflection of us. If a state cannot ensure a fair trial, it should not play god either.

During 2007-2012, Pakistan executed 171 death penalties and sentenced 1,497 prisoners to death. We compete with countries like Iraq and Iran; both countries do not principally champion human rights. We only have China to beat. If it offers any comfort, there is a great deal of ground to cover.

In 2008, the president of Pakistan announced a moratorium. After that, death sentences were given but not executed. Last year Muhammad Husain’s execution in Mianwali Jail brought an end to the restraint the government had observed. At present, Pakistan hands down capital punishment for 27 different crimes.

The code of conduct of the Bar of England and Wales outlines that the prosecuting counsel should not attempt to obtain a conviction by all means at his command. He is not appearing on behalf of any party and is responsible for the overall impartial presentation of the case. Such ethical considerations are alien to the criminal justice system in Pakistan. The prosecution counsel along with the other organs of the state, like the police, leave no stone unturned to influence what could have been a fair trial.

In Pakistan, tampering with the evidence and even planting it is a norm. The police, although understaffed and incompetent, are well trained to carry out such duties.

While there is no ethical bar on discussing the evidence and matters related to it with witnesses in England and Wales, the code instructs caution to exercise that discretion as the contact can lead to suspicion of coaching the client. Coaching a client is expected to be one of many phony fortes of average criminal lawyers in Pakistan. Lawyers with little regard to overriding duty to the court do not hesitate in running the most convenient defence for their clients whether they believe it to be true or not.

We generally have a philistine attitude towards everything. If banning YouTube wasn’t bad enough, Ms Rahman’s statement on Google is another example.

Add forensics to that bucket.

It was appalling to note that the Council of Islamic Ideology declared that DNA testing in rape cases, one of 27 for which we have capital punishment, is inadmissible as primary evidence. The Council is relevant to our criminal justice system because of Article 229 of our constitution. This is illustrative of our eagerness or lack of it to improve our investigation procedures and keep them current with today’s age. Mere resolutions without any follow up cannot challenge such a regressive attitude.

There is a fantastic dearth of good defence lawyers in Pakistan. Litigation can be very expensive. Since Pakistan has not developed the comprehensive Legal Aid system, often a sarkari wakeel (public defender) is so awful that he appears in courtship with prosecution to put his client on death row. Noting these trends the academics have advocated for inquisitorial role of the judges. This can enable their participatory role in proceedings as opposed to adversarial where judges are not interventionist. It is unlikely if that can come in handy.

Consider the case of Rinkle Kumari.

When she was first presented to the court of Civil Judge Gotkhi, she requested to be returned to her parents. The court declared her “confused” and sent her to police custody in Sukkur Women Police station. The next time she appeared in the court she recited the kalma and became Faryal Bibi. It is a glaring example where even with an interventionist judge outcome of the trial would be no better. Our judges, especially in the lower courts, are susceptible to political pressures and outright dishonesty.

Moreover there is a menace of backlogging in our courts as well. There are 4,981 death row prisoners in Punjab, 266 in Sindh, 102 in KP and 26 in Balochistan. The total number of pending appeals in provincial High Courts of Pakistan is 5,378 and 1,031 in the apex court. The state is utterly oblivious to the idea of what 'justice delayed' implies.

A criminal case can stretch as far as a decade without reaching its conclusion. It isn’t fair to those sentenced nor the families involved as they tortuously wait for verdicts. How a nation treats its prisoners says a lot about that nation. Let alone their conditions; we are only reminded of their existence during election fervour.

Our prisons are a deplorable reflection of how low we have stooped morally.

In our justice system, with all its evils, capital punishment taken at its highest cannot reform our societal ethos. At its lowest, it fails to tender deterrence against crime. The argument against the capital punishment is far from complicated.

If a state cannot ensure a fair trial, it should not play god either.

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