The writer is a lawyer and a researcher in a think tank based in Lahore and holds a law degree from the University of London
The belief that the death penalty or capital punishment entails inhumane treatment is gaining ground. One feels sorry for the victims of the death penalty as they are increasingly subjected to traumatising acts of stoning, beheadings, gas chambers, electrocution and lethal injections. It forces human rights advocates to raise questions about why the world is killing an individual, when he can be punished through life imprisonment as well.
Though the European Court of Human Rights does not talk about completely doing away with the death penalty, it does believe that the manner of conducting public executions should be compatible with human dignity. In response to atrocious incidents of execution, the United Nations called for a moratorium on them. The moratorium, for a while, did play its role in curtailing painful executions, but with the passage of time, some countries, in spite of it, chose to revert to the odious practice of sending people back to the gallows, once again, leading to a major setback to the human rights discourse.
The most convincing and compelling argument against the death penalty is that it is irrevocable and can be inflicted on the innocent. There have been instances where innocent people have been hanged. Being a Muslim, I certainly advocate the Islamic position with regard to the ethics of capital punishment. Islam, in a nutshell, does accept capital punishment but even though the death penalty is allowed, forgiveness is preferable. Peace, forgiveness, valuing human life, these are the principles that govern Islam.
Like it or not, but Iraq and Pakistan are among the countries with the largest populations of prisoners and inmates on death row. It is believed that there are about 8,000 people currently on the death row in Pakistan. Such countries need to reform their criminal justice systems and introduce legislation proposing an end to the death penalty. The legal system in many countries is the only harbinger of justice, hence, it must allow recourse to fair trial to an individual, in a court of law. In a death penalty case, the aim should be to stay execution and to commute the sentence from death to life imprisonment without the possibility of parole. The death penalty not only fails as a solution but it is enormously expensive. A majority of the studies on the cost of capital punishment, conducted by various experts, conclude that it is much more expensive than a system with life sentences as the maximum penalty.
If a country like Pakistan surrenders the death penalty, the economy will be relieved of this financial burden, as for the implementation of death penalty, a lot of funds are needed to support pre-trial and trial costs, appeals and state habeas corpus petitions, federal habeas corpus appeals and finally incarceration.
The current government in Pakistan must look into reforming the death penalty laws before its term ends this year. Such a reform is mandatory for not only Pakistan but all other countries who are seeking membership of the European Union General Scheme of Preference in order to improve trade and their ties with the western world.
The prevailing scenario in most of the less-developed countries manifests that the death penalty is inflicted on the poor and the marginalised, is arbitrary and unfair and the penalty claims innocent lives. Above all, it not only defies international human rights standards but also fails to deter crimes, the sole purpose for which it is executed.
Published in The Express Tribune, February 20th, 2013.
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@Shahzad:
Sorry, capital punishment is not an option in Islam!! The commandment of "Though shall not kill" and "fear me and no one else" negates any vengence. Islam does nor recognise any execution rights or that of forgiveness for the aggrieved party of the deseased! You are referring to the traditions and cultures of people which have been practiced in order to limit, contain and manage the human reactions in respective societies before and after the scriptures were brought by the Prophets of God(peace be upon them) to the mankind.
Pakistan is following the colonial laws as well as the practices of the tribal societies, which have very little to do with Isalm. per say!! The sooner the Pakistan juddicial and legal systems are reformed renewing and modifying as appropriate to eliminate the unwanted traditions and practices of the Pagan times, they will have come nearer to the standards of the European Union.
Rex Minor
@Shahzad: "Fear has to be built in the society in order to avoid such offences that lead to capital punishment".
The world has changed from centuries ago when fear ruled with an iron fist.
Fear is no longer a deterrent to the young generation of today. They do not view fear with the same emotions as previous generations. The world has changed and unless we accept this fact, we cannot address nor deal with this change, for a better society. Nothing in this world stays the same forever, not even human emotions.
Respect has to be built into society in order to avoid offences. A government, any government, that socially engineers its people with the threat of death is not a government that should be respected. This could be one reason why the young generation of today are rebelling against society/governments that use fear to control and terrorize its people by the threat of death and torture. The death penalty has nothing to do with religion and more to do with uncivilized government laws.
How can we possibly expect to teach our children respect, whilst at the same time they see governments legally killing and torturing people, in the name of justice. Is it any wonder many young people are no longer adhering to disciplines, law and humanity.
Capital Punishment in Islam is an option to the aggrieved party to exercise among other options like Diyat. In Pakistan the High Court has to endorse the punishment for it to be executed; and this has rarely been practiced. Fear has to be built in the society in order to avoid such offences that lead to capital punshment, else in the case of life imprisonment people might commit such offences and prefer battling their cases for indefinite period, wasting not only their time but that of Court's precious time as well. Fear does not mean to be taken adversely rather for civilizations to adhere to disciplines, law and humanity.
Sara,
Islam neither permits nor condones killings or so called death sentence or capital punishment.. I am not sure abour your nutshell? You said you are a muslim which is good and simply means that you have choosen the Islamic way of life which is a very long way.
The 7th commandment to Moses(pbuh) from God stipulates, " Though shal not kill".
The countries in the European Union have abolished the capital punishment. India is an anamoly to the extent that it is a land of the avatars, the non believers, who have many Gods in their mythology but none to guide them.
Rex Minor
@ G. Din: “You perhaps mean “political majority” and “political minority””
Only, in case of true democracy ... which itself is non-existent. It is a well propounded legal theory and probably relevant in all situations including dictatorship, monarchy to laws of nature. In religions, the political superiors like Pandits and Mullas suggests them as Laws of God .... :-)
Sir, I agree with you. However, In practice any judgement can't be weighed as absolute 0 or 100. One has to way it by his own perception on the scale of 0 to 100. The collective will of the nation is decisive in such cases. In case of world order it is the collective will of comity of nations? The major clashes as you refer are probably the differing perceptions of societies. Better course is that one should not go beyond his nose and poke his nose in others personal affairs. In comity of nations, the opinions weights as to who is talking ... ?
The administration of justice and clashes of humanity are two different aspects. In ‘administration of justice’ the lives lost are quite limited. On the other hand in clashes of humanity losses of lives are more and political inferiors’ lose more. The need is to avoid such clashes based on differing opinions. Need is to educate the masses against Caprice and avarice of political superiors and it should not become cause of clashes of masses (political inferiors) nations included.
Sir, world is a human jungle and predators will always be roaming in it. The best course is to avoid them till you are strong enough to face them .... ?
@SKChadha: " Law is a will of political superiors imposed on political inferiors. " You perhaps mean "political majority" and "political minority". "Therefore, any punishment has some element of deterrence build in it." Yes, that is indeed so but deterrence is not the raison d'etre of any law as I have argued. "It is also to curtail persons’ activities for good of particular society. " This is the governing need that must guide us when we are framing laws for its smooth functioning. Their need or character may be different at different stages of a particular society's development. So, laws will of necessity differ between societies. No society has any right to condemn another because former doesn't agree with the laws the latter framed for itself purely on the basis of its (newly found) morality! "In awarding ultimate punishment (death), to me it is the beauty of Indian criminal jurisprudence that no time frame is provided, as the decision can’t be reversed." This is being taken advantage of as evidenced by its observation more in breach. In very small percentage of capital sentences the sentences have been reversed. Nevertheless, much care must be exercised before awarding a death sentence. Many cases were reversed when DNA analysis appeared in forensics technology. When it did happen, all the cases on the death row in Illinois were ordered to be relitigated. It can be no one's case that errors will never be made. To err is human and, in my opinion, any error is justifiable as long as best effort has been expended to avoid it. Isn't that how we conduct our lives? Many diseases were incurable before their cures came along. Do we blame ourselves for deaths before then? Look, how we are so exercised about a minuscule number of people sent to gallows after a laboured process of administering justice but we suffer from no such scruples when we massacre our fellow humans in millions purely because they happen to follow a different faith! It is even more astounding to note who are the standard bearers of immorality of death sentences. Russia alone lost 26 million of its citizens in the two world wars imposed upon it by the same predatory power only on the grounds of caprice and avarice!
@kaalchakra: "G Din, ‘religion’ doesn’t make a place civilized. Good religion does." Religious thinking occurs only when a people have become highly civilized. So, you are right. A civilization begets religion, not the other way around. And, if those religions are followed across the world because of their philosophical persuasion and not at the point of a sword, one can only surmise how advanced that civilization might be to have come up with such "good" religions!
@ G. Din: History suggests that Good and Evil go together and are two faces of the same coin. Law is a will of political superiors imposed on political inferiors. Therefore, any punishment has some element of deterrence build in it. If not for the offender, than it may be for other members of the society. It is also to curtail persons’ activities for good of particular society. In awarding ultimate punishment (death), to me it is the beauty of Indian criminal jurisprudence that no time frame is provided, as the decision can’t be reversed. It is another issue that in democracy such decisions of legislation, judiciary and executive are always prone to criticism (right or wrong). The process is for the people to judge who vote for leaders for governance.
I have my own reservation as to the prescription of time frame. However, once the process is completed further action should be swift. Otherwise, the legal process itself will become a soft target for luminaries. In Afzal Guru’s case, to my opinion, the process ended with President’s rejection of his appeal. Now the question is whether, afterwards the action is too swift to call it of political nature? If yes, then it suggests weakness of coalition and to ward off the backlash of their vote bank? The issue is of ‘law and ORDER’? It is true that once the mercy petition is rejected the action should be swift, but before that it should be well discussed and debated. In as well as out of the corridors of power and all situations should be considered for such action. It is the delay after rejection of mercy petition which put all onus on Government to explain the reason for delay in implementing the decision. It also put a doubt in the minds of courts that whether there is some error in such decision or a particular angle is missed. However, I do not observe any such delay in this case.
G Din, 'religion' doesn't make a place civilized. Good religion does.
@Rex Minor: "The capital punishment is an inhumane and henious act and is a curse on those Nations who still exercise it. The European Union of 27 countries do no loner practice it." If the European Union truly believes that it is "an inhumane and henious act", then it ought to come forward and offer to walk the talk. Take those condemned men and women and do whatever you want with them. We will live with our "curse". Countries of the European Union are in no position at all to pontificate about the heinousness of destroying a life in an "uncivilized retributive" system of justice after centuries of colonialism all of its major member countries perpetrated in Asia, Africa and Latin America. What did that colonialism do to those victim people? We had wholesale famines because huge wealth was transferred to the mother countries. We were stopped by all means to be self sufficient so that those very countries might have captive markets for their products. You are the only group of countries in the world which fought two world wars and destroyed a substantial portion of humanity including those of their colonies. India is expected to leave its own colonizer behind in just 20 next years after only 50 years or so of self-governance. Goes to prove how much ahead would the world have been if only those countries had not imposed their "immoral" colonialism on those continents. Get off the bully pulpit, sir, we are sick and tired of you imposing your constantly changing standards of moral behaviour. Nowhere else in the world has the sanctity of life so clearly affirmed as in India. India has given five major religions to the world practiced throughout the world and you have the gall to call us "uncivilized"?
The capital punishment is an inhumane and henious act and is a curse on those Nations who still exercise it. The European Union of 27 countries do no loner practice it.
The act of vengence against the one who took the life of another. The Govt of the country is acting willy Nilly to avenge the death on behalf of the other.This curse must be annuled in all civiised countries.
Rex Minor
"Afzal Guru’s hanging raises many unpalatable questions", why only Maulana's death has raised questions? Why questions are not raised when executions are carried out in China/Saudi Arabia. Is it not meddling into someone else affair?
@RAW is WAR: Your psuedonim is as repulsive as your comment.
@Alaa Qiadat: "...whoever gets death penalty should be hanged immediately. " @SKChadha: " It is definitely retributive if awarded routinely." The purpose of a death sentence, as of any sentence for any crime, is simply and only retributive. No laws are framed for deterrence. If laws deterred, there would have been no repeated infringement of the law once it had been demonstrated the consequence of such infringement. Theoretically, then the law would have no further utility at least for a generation or two. In actuality, we not only find laws infringed quite frequently but also even repeatedly by the same person. In such cases would the law be revisited for increasing the sentence for deterrence reasons? That is just not done anywhere. Death sentence should be passed in "the rarest of rare cases" as ruled by Indian Supreme Court. There should be a certain strict time period defined for the exhaustion of the Appeals process. Subsequent to legal process having been completed, the Mercy process by the President must have a limited time to decide admissibility or otherwise under strict guidelines as to the entitlement of a petitioner's qualifications for mercy, unfettered by strictly personal beliefs in the utility of the law or based on any personal philosophical compulsions (thus negating the intent of the law by doing so). President should have no right to second guess the Parliament once a law has been passed and ratified by the (previous) President. We are not a monarchy. We have seen in India the Mercy phase may last several presidential terms. This is absolutely ridiculous. We are finding that after rejection by the President, a new appeal may be made to the Supreme Court to judge the Presidential decision. This is asinine. Supreme Court is charged with the application of the laws passed by Parliament. That, it had already done. Supreme Court should have no right to sit in judgement on a Presidential decision. One last chance for reversing death sentence, after Presidential decision to deny, must go to Parliament in very, very, very rare cases of extreme national importance, again to be decided in a strictly limited time.
what is the cost, worth of a life how ever skilled it might be inside a prison under constant watch. please estimate if this cost can be borne by Great economies like the third world economies.
may be then you will find you government will be spending more on a criminal person than on a innocent one if death penalty is removed.
Do not talk about economics with a sympathetic heart. It is worse than death penalty to innocent law abiding citizens.
@Yoghurt lover: "Which is more cruel and inhumane? Death penalty or life time imprisonment? Most might prefer death over life term." A very pertinent point! By converting death sentence to life imprisonment, those who favour it, do not understand that by doing this they are killing the subject to death by dribs and drabs over a long time. A human life is not just hours or days or months or years spent purposelessly. Man is a social animal. He/she needs to be surrounded by, and able to interact with, the society. If a psychological study is conducted on those "compassionate" people, I would not be surprised that the finding would substantiate the very acute fear of Death in them and the pain they visualize at a noose put around their own neck and hanged.
The best way to avoid death penality is -don't kill others.Relation between punishment and criminal is that of agreement,thoroughly read and signed by both parties.After that objection on the contents of agreement by either party bear no legal or moral ground.If a person comiting crime has no objection on the punishment for his crime who we are to shed tears.There is no compulsion to commit crime.
Capital punishment since time immemorial is one of the form of punishment in all societies. It is a deterrent for cases where the crime is committed with full mens rea, brutal, heinous and disturbing conscious of the society where it is committed. It is definitely retributive if awarded routinely. There is lot of hue and cry when such punishments are awarded in politically sensitive cases e.g. hanging of Zulfiquar Ali Bhutto. The issue is debated many times by Law Makers (Parliament of India) and by Courts in India and both have held the need to continue this punishment in India. It is also felt that such punishment should be awarded in rarest of rare cases. Afzal Guru’s case is considered as one of that by all courts, GOI and even President while considering his mercy petition. It is solemn affirmation of the writ of 1.2 billion Indians. Individual’s views may differ as to political action, delays, humanitarian angle or what not. The question is that when existence of such penalty is provided by law and all avenues have been exhausted, such action is solemn affirmation of the will of a nation. Taking one’s life is not a occasion to rejoice but of introspection as to how society has reached so low in crime and how to prevent such occurrences in future.
Even the mode of execution is dwelt by the GOI in detail and Law Commission of India have circulated a consultation paper on this issue to have comments from society in general. Refer: http://lawcommissionofindia.nic.in/cpds1.pdf - Mode of Execution and Incidental matters. It is duty of the think tank, like this writer, to express their free and frank opinion on such matters for improvement of Indian system.
Second issue is of treatment of such convict, his security, processes before, during and after executions. In India Prison being a State subject these issues are provided in Model Jail Manual at: http://bprd.nic.in/writereaddata/linkimages/1445424768-Content%20%20Chapters.pdf – Model Jail Manual. Many States have adopted this manual with desired modifications according to the wisdom of state/ local legislative bodies. Further questions are, as to time of execution, handing over the body to the relatives and informing of hanging to relatives etc have been dwelt in detail in this manual (refer Chapter XI). The information to relatives is also mandatory but not before execution, as it may lead to problem in politically sensitive cases. Same is the case with disposal of body (11.66-68).
I more beleive our judicial process needs to be improved but whoever gets death penalty should be hanged immediately. Rapist, murderers have no mercy. Afzal guru should not be confused with death penalty issue, thats a political case! jst look at recent LeJ killing. Hang their 10 men see the difference then
In Afzal guru's case, it is fully justified.
But there is a question which needs answering.
Which is more cruel and inhumane? Death penalty or life time imprisonment? Most might prefer death over life term.
Maybe, in such cases the choice should be given to the prisoner : death or life term. Because for many death is freedom.
The death penalty around the world is a discriminative 'Government Program'. It is important to note that every major religion in the world preaches compassion, forgiveness and mercy over vengeance. Every religious Holy books clearly state that if a victim forgives the offender they will receive blessings from the Almighty. Therefore, the death penalty is inconsistent with these religious teachings. Supporters of the death penalty unfairly use religion to justify state-sanctioned killing.
Governments’ are not infallible - we know that they habitually make mistakes. When society gives the State permission to kill people, we must understand that ‘right’ is often abused. More importantly, we are erroneously awarding the State's absolute power over our lives, which in the long term has significant negative implications.
Whether one is for or against the death penalty, nobody can dispute that it is a barbaric, brutal, cruel, degrading, inhuman, uncivilized and vile act of state-sanctioned act of revenge. The death penalty is the most pre-meditated, meticulously prepared, carefully planned, cold-blooded ‘legal ritual’ of killing a person by the State. Killing a criminal is not an occasion to celebrate. Indeed, rejoicing as a society at the killing of a criminal shows the moral degradation of society. When a State law metes out vengeance disguised as justice, it becomes complicit with the criminals.
Dear Sara, very well argued case. Like you, I too advocate the Islamic position. I accept capital punishment but strongly oppose it in the case of Afzal Guru.
Death penalty is inhumane and should be abolished as a form of retribution. This 'revenge' has its roots in religion and monarchies and has been the practice for thousands of years. It was/is a quick way of silencing dissent, progressive thought or setting examples for others by threatening extreme violence against individuals. Many religious groups do not want it abolished. Christians, Muslims, Hindus and many other deeply religious nations still believe in 'eye for an eye'. Death penalty does not deter either. The nations of the world must sit together and arrive at a more civilised way of dealing with murderes, rapists, traitors and others who are currently deemed fit to be killed.