Taking lives

Do we want to have a system of capital punishment in a police and judicial system as flawed as ours?

The temporary stay given by the President of Pakistan to the May 23 execution of Behram Khan is a welcome relief. Mr Khan’s execution, for now, has been put off till June 30. Since taking office in 2008, the current PPP government has placed an informal moratorium on executions. Earlier this month, Mr Khan’s mercy petition had been rejected by the president and black warrants had been issued — but now he can breathe easy, for a few more weeks.

The decision to take a person’s life is not a small one. And it should not be small for anyone, but especially for a state and a justice system. The right to life is the most fundamental and basic of rights, and in all laws and systems of thought, it is considered to be the foundational right that comes before all, gives power to other rights and thus is able to trump other rights and obligations, too, if such a need arises. Many systems posit life to be ‘sacred’, too, and consider the right to life to be almost, if not actually, inviolable.

Of course, taking the life of another in self-defence and in conditions of war are provided for in all systems but these exceptions are very narrowly and carefully defined and are usually justified by invoking notions of (probability of) larger harm to/for others.

We are going to sidestep the issue of whether there can be circumstances, other than the emergent situations mentioned, where the state should make laws for authorising the taking of life of a person for reasons of infringements of certain laws and through the legal process. In other words, we are sidestepping the issue of whether capital punishment should be on the law books at all. The question is too complicated for this article and is not the key issue for us here anyway. It involves conceptual discussions of fundamental rights, right to life, sanctity of life, derivative status of rights of states, jurisprudential first principles and historical precedents/discussions. And in the case of Pakistan it also involves understanding the Islamic legal and jurisprudential point of view.

But the point that needs to be made is not dependent on the discussion of the merits/demerits of capital punishment in the abstract. It is about the Pakistani context. The right to a fair trial has been made a basic right in Pakistan, as part of the Eighteenth Constitutional Amendment. We also know the state of our police investigations and criminal proceedings and the state of the judicial system are very compromised: they are inefficient, incompetent, corrupt, and sometimes even vicious. In these circumstances how certain are we, for any given case, the due process of law has been carried out with due diligence and that all requirements of a fair trial have been met.

There are two points here that should be kept in mind. We know that due to the poor processes, incompetence and corruption mistakes (omission and/or commission) are made quite often in our justice system and many an innocent person have been punished and many a culprits have been allowed to go free. How can we be sure that the person who we are going to hang — and hanging is the ultimate punishment, with no possibilities of reversal or redress — is guilty beyond reasonable doubt?

We design judicial systems in a way that we are more loath to committing/punishing an innocent person than letting a guilty one go as we feel the first mistake is a more tragic one. This is exactly why we assume that people are innocent until proven guilty and the burden of proof is on the accuser. And it is also why in some jurisdictions juries, of people who have a better understanding of the accused’s context, are relied upon to decide whether a person is guilty. Furthermore, for an accused to be found guilty, the jury’s decision has to be unanimous and not just majoritarian. Capital punishment, in a police and judicial system as flawed as ours, is bound to make errors and we are very likely to have the blood of innocents on our hand. The trial and execution of Zulfikar Ali Bhutto also shows how easy it is to manipulate the system. Do we still want to have the option of capital punishment under these conditions?

Published in The Express Tribune, May 20^th, 2012.