Crime and (capital) punishment: Moratorium on death penalty hangs in the balance

More than 8,000 death row prisoners await top court’s ruling on death penalty freeze


ISLAMABAD:


Shoaib Sarwar should have died on September 18. That superintendent at Adiala Jail, where Sarwar is on death row, was directed by a sessions court to execute him on the date. Sarwar was given the death penalty in July 1998 for murdering Awais Nawaz in January 1996.

He has already exhausted all appeals and has a mercy petition pending in the office of the President of Pakistan. Two days shy of the date, the LHC Rawalpindi bench comprising Justice Mahmood Maqbool Bajwa and Justice Aalia Neelum issued a stay order. Sarwar is one of 8,526 convicted criminals on death row in Pakistan and his fate hangs in the balance as the legal community remains divided over the issue of capital punishment.




The bench was told that Shoaib was party to a petition for the abolition of the death penalty before the Supreme Court and any execution order by the High Court cannot be acted upon till the matter remains with the apex court. Thus on Wednesday this week, the top court will take up a petition filed by the Watan Party seeking an explanation from the government over inordinate delays in the execution of prisoners on death row in the country.

The three-judge bench of the apex court, headed by Chief Justice of Pakistan Nasirul Mulk will resume the hearing of this case after a five month period. In the last hearing on May 5, the bench had summoned Attorney General for Pakistan Salman Aslam Butt to give a reply regarding inmates on death row awaiting execution in jails across the country.



These convicts are not all murderers – there are 27 offences in Pakistan legally punishable by death. These offences go far beyond the threshold of ’most serious crimes’ stipulated by Article 6 of the International Covenant on Civil and Political Rights and include blasphemy, sexual intercourse outside of marriage, kidnapping or abduction, gang rape, assault on the modesty of women and the stripping of a woman, smuggling of drugs, arms trading and sabotage of the railway system.

“These prisoners should be released if the government does not want to proceed with their execution,” petitioner Barristar Zafarullah Khan told The Express Tribune.

The previous PPP government decided to adopt a de facto moratorium on civilian hangings since 2008despite opposition from various state institutions.  Only one person has been executed since then: a soldier convicted by court martial and hanged in November 2012.



The case for human rights

On December 5 last year, the law ministry informed the Human Rights Commission of Pakistan (HRCP) that the government is maintaining a moratorium on death penalty. The HRCP has urged the government to take concrete steps toward ending the death penalty and meanwhile persist with the suspension of executions.

The organisation has urged the government to sign the Optional Protocol to the International Covenant on Civil and Political Rights, aimed at abolition of the death penalty. Around 140 countries have become abolitionist states in the last 65 years after the Universal Declaration of Human Rights (UDHR) was promulgated.

The HRCP said it was dismayed at the possibility of the moratorium on capital punishment being lifted. “HRCP wishes to remind the government that the reasons that have caused the stay of executions since 2008 have not changed,” the group said in a statement. “These include the well-documented deficiencies of the law, flaws in administration of justice and investigation methods and chronic corruption.”



The law ministry said it is not in favour of the complete abolition of the death penalty in view of the prevalent law and order situation, particularly with reference to acts of terrorism. The ministry added that the death sentence under Hudood Laws also cannot be abolished in view of Article 2-A read with Article 227 of the Constitution.

“The issue of death penalty is related to the Ministry of Interior and Narcotics Control and the provincial governments. This ministry is obtaining their comments and a final response shall be given after receipt of comments from all stakeholders,” the law ministry further said.

According to a 2013 report by HRCP on the issue, Pakistani authorities have executed only one death-row prisoner since 2009. The report further stated that courts continue to award capital punishment and 227 people, including three women and three Christians, were sentenced to death in 2013.

Last June the newly elected government of Prime Minister Nawaz Sharif scrapped the moratorium in a bid to crack down on criminals and Islamist militants. But two weeks later it announced a further stay of executions after an outcry from rights groups and then-president Asif Ali Zardari. All execution orders in Pakistan must be signed by the president.

During the United Nations General Assembly meetings last week, officials pressed global leaders to move towards abolishing the death penalty, saying the continued practice of capital punishment is “primitive”. “Revenge alone is not justice,” said High Commissioner for Human Rights Zeid Ra’ad Al Hussein at the high-level event, Moving Away from the Death Penalty: National Leadership. The High Commissioner dismissed capital punishment as “degrading and cruel in more than one sense” and acknowledged that it was “often discriminatory” of the condemned, disproportionately affecting the poor, the mentally ill, the powerless and minorities.

Currently, Pakistan, Equatorial Guinea and the states of Washington, Maryland and Connecticut in the United States have a moratorium on executions and 160 UN members states have either eliminated capital punishment or do not practice it.

Legal opinion

When there is a law regarding capital punishment, then it should be implemented forthwith, says Supreme Court Bar Association president Kamran Murtaza. “The bar is not in favour of a complete abolition of the death penalty in the country as this is contrary to Islamic shariah,” he explains. However, he says the death sentence is awarded in drug trafficking cases and should not be. While he supports capital punishment in blasphemy cases, Murtaza says the government should evolve a strategy to stop the misuse of the blasphemy laws.

On the other hand, lawyer Azhar Saddique argues, “The death penalty cannot be waived in any case.” He explains, “By removing capital punishment from all offences, including Section 302 of the Pakistan Penal Code (dealing with murder charges) and Section 7 of the Anti-terrorism Act (“whosoever commits a terrorist act, if such act has resulted in the death of any person, that person be punished with death”), you cannot curtail terrorism. The increase in such activities is due to the non-implementation of capital punishment.”

Justice (retired) Tariq Mahmood also strongly supports the abolition of the death penalty, saying that only lower income people face the penalty in the present system. “Rich people are able to hire influential lawyers to contest their cases and have them freed,” he believes. “These people can manage an investigation in their favour by buying out witnesses, investigation officers or the judiciary. There is little chance of the penalty in their case.”

Mahmood says lower income people often cannot pay their lawyers’ fees and therefore the court awards them punishments as they do not receive assistance in their cases. “Rich people are able to pay qisas and diyat in Pakistan,” he adds, saying that sessions judges have the authority to award a life sentence in the offence of Section 302 of the PPC.

Ahmer Bilal Soofi, known as an expert on international law, says that Pakistan is not signatory to any international treaty or convention regarding the abolition of the death penalty. Therefore, he feels there is no legal obligation to continue a moratorium on capital punishment in the country. However, he adds that there is a political impetus to abolish the penalty as the government will face international criticism should it go ahead and carry out executions once more.

Terrorism and death penalty

“Principally, no one should be awarded the death penalty, but in Pakistan, it is impossible to completely abolish the punishment until and unless terrorism is wiped out,” says former vice chairman Pakistan Bar Council Akhtar Hussain. However, Mahmood rules out the nexus between the elimination of terrorism and the abolition of the death penalty. “Terrorists are ready to die for their acts and terrorism cannot be eliminated through capital punishment,” he explains.

Similarly, former Additional Attorney General Tariq Khokhar says international research has established that the death penalty does not sufficiently act as a deterrent for crimes. “In Pakistan, 60 to 70 per cent of litigations or FIRs registered are falsified or fabricated and innocent people are punished in these matters. Therefore, it would be better to abolish capital punishment,” he said.

He says that if the government goes ahead with the death penalty, Pakistan’s trade relations with the European Union (EU) will be affected as capital punishment is in violation of the EU’s Charter of Human Rights. “Countries like Saudi Arabia, Iran or the United States of America can afford to carry out death penalties as they do not rely on international trade,” he says. The top four countries in the world meting out the death penalty are China, Iran, Iraq, Saudi Arabia and the US, according to Amnesty International.

Published in The Express Tribune, September 30th, 2014.

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