Capital punishment and trade benefits

The moratorium was de facto, but the EU is not willing to take the execution of an army soldier as an exception.

After four years of no executions under the constitutional and penal code provision of the death sentence, Pakistan hanged a convict in a Mianwali Jail on November 15 under law. The four-year moratorium in the execution of sentencing was allowed, presumably to get the European Union (EU) to give Pakistan duty-free access to the EU markets. The concession became operational a day later on November 16, conditional upon some human rights benchmarks, including the curtailment of the death penalty. This is expected to affect the EU decision and Pakistani exports may again be taxed, thus placing it in a position of disadvantage vis-à-vis a several developing economies that enjoy concessional trade despite the fact that some of them allow death sentence.

The way the moratorium was broken is embarrassing. The murder convict was an army soldier, who was tried in a military court and his plea for pardon was turned down by Army Chief General Ashfaq Parvez Kayani, which resulted in President Asif Ali Zardari also rejecting it. The moratorium was de facto and not a result of a change to law. The PPP government is still weighing the odds of legislating to abolish the death sentence, a step that is bound to face extra-parliamentary opposition, even if the PPP allies agree — an almost impossible task just before elections — on the basis of the generally accepted interpretation of Hudood laws under Islam.

The EU is hidebound in the matter, too, despite its political assurance under Nato that Pakistan needed to be helped as an allied state faced with terrorism and natural calamities like floods. The EU headquarters in Brussels has posed questions to Pakistan’s mission there, reiterating that “EU trade agreements were tied to human rights bars whose violation increased chances of cancellation of the trade concession”. What is more, the EU is not willing to take the execution of the army soldier as an exception. The Brussels argument is that General Kayani should have intervened to pardon the soldier. But there is some hope yet. According to the EU embassy in Islamabad, the proposed Generalised Scheme of Preferences, which will come into force from 2014, promising duty-free access to an unlimited number of goods, “is not attached to abolition of the death penalty”.

The EU uses many tools of persuasion to propagate its consensus against the death penalty. All human rights organisations that receive funds from the EU states are bound by conditionalities to oppose the death penalty. All new states wishing to join the Union are required to amend their laws to abolish the death sentence. Its largest trading partner, the US, only partially meets the condition because not all states within the US agree to do away with executions under law.

Pakistan is less and less in a position to ‘liberalise’ its Penal Code and abolish the killing of convicted murderers. As far back as July 2008, the cabinet of prime minister Yousaf Raza Gilani approved the government’s decision to commute the death sentence of 7,000 persons on the death row, barring habitual criminals guilty of heinous crimes. On the occasion of the birth anniversary of Ms Benazir Bhutto, the prime minister had announced that his government would make recommendations to President Pervez Musharraf (sic!) to commute the death sentences of thousands of prisoners to life imprisonment as a birthday tribute to Ms Bhutto.

The religious reaction was predictable. Jamiat Ulema-e-Islam’s Maulana Fazlur Rehman, who was opposed in principle to the power of the president to ‘forgive’ a death sentence, spearheaded the ‘revolt’. However, the reaction of the common man was more related to Pakistan’s social conditions. The truth is that even the law of presidential pardon under the Constitution is challenged and runs the risk of being overturned by the Supreme Court under the ‘grund norm’ principle.

The EU must take notice of the fact that some EU states have relaxed their human rights norms to legislate tough laws against immigrant terrorism. Pakistan has to be helped because this is the last bastion of democracy in the region fighting terrorism. The EU must relax its red tape at Brussels to allow Pakistan’s economy to survive.

Published in The Express Tribune, November 25^th, 2012.