Revisiting capital punishment

During 2007-12, 1,497 prisoners in Pakistan were sentenced to death. Here, we compete with countries like Iraq and Iran; both do not principally champion human rights.

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 prosecution counsel, along with 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.

It was appalling to note that the Council of Islamic Ideology declared that DNA testing in rape cases, one of the 27 crimes 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 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, academics have advocated for an 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 be handy.

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 Khyber-Pakhtunkhwa and 26 in Balochistan. The total number of pending appeals in the 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 for as long as a decade without reaching its conclusion. It is neither fair to those sentenced nor to 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 capital punishment is far from complicated.

Published in The Express Tribune, July 1^st, 2013.

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