By Zubeida Mustafa
WHEN someone claims to have been denied a fair hearing before the courts due to systemic flaws, I think of the golden “chain of justice” that has earned the Mughal emperor Jahangir a place in history. Outside his castle in Agra a bell had been installed for those who wanted a personal hearing from the emperor. They just had to pull the chain.
There are many prisoners locked up in our prisons today who need such golden chains. In other words, their point of view needs to be heard. One of them is Dr Zulfiqar Ali, an inmate of Kot Lakhpat Jail, Lahore. I came to know of Zulfiqar’s case way back in 2009, when Justice Project Pakistan , in conjunction with the London-based Reprieve, two legal aid organisations, had filed a mercy petition to the president on his behalf. I had written about him pleading for his life in view of the good work he was doing to educate fellow-prisoners (May 20, 2009).
When I traced out Zulfiqar’s brother recently and through him got in touch with Zulfiqar himself, I now feel his case has been further strengthened and people like him deserve to live so that they can continue to contribute meaningfully to society. This requires the prime minister to translate into action his promise made in June 2008 to do away with the death penalty. True the government has not carried out any execution since then. But we need an announced moratorium on capital punishment as suggested by the UN Assembly in 2007.
Zulfiqar Ali feels that his view has not been heard and he has been denied good legal counsel. He may have a point there because Zulfiqar is a man of modest means and appointing a good lawyer is expensive business in Pakistan. According to the mercy petition filed on his behalf he was given the death penalty when “he was involved in a confrontation with two hostile strangers which led to their death”.
What he needed was a lawyer who was competent and a man of integrity to argue his case. Had he got one, he might have been a free man today. The lawyers appointed by the courts in such cases usually don’t fit the bill. It is the poor who suffer the consequences.
This has been confirmed by numerous studies that have been carried out the world over. Amnesty says that the death penalty is used “disproportionately against the poor”. Its 2008 study based on the Indian Supreme Court judgments concluded, “Whether an accused is ultimately sentenced to death or not is an arbitrary matter” and a decision depends on “a number of extremely variable and often subjective factors — ranging from the competence of legal representation to the interest of the state”. It goes on to say, “The less wealth and influence a person has the more likely is he to be sentenced to death.”
In the US a similar link between poverty and the death penalty has been noted by Jeffery and Colleen Johnson who state, “When capital defendants are represented by inexperienced, underpaid, and in some cases incompetent, attorneys, it should come as no surprise that legal and strategic mistakes are common.” According to the writers justice would be done only “when everyone is afforded the same quality (and quantity) of criminal defence”.
In such cases when a life is at stake, the oversight function of the court to ensure the competence and integrity of the counsel provided to the defendant becomes important. Zulfiqar Ali claims that the lawyers appointed by the courts to argue his appeals didn’t meet him at all. When Zulfiqar wrote to the Supreme Court requesting a review in 2006 the chief justice converted his application into a review petition suo motu. Then came the judges’ crisis. In the period that chief justice Iftikhar Chaudhry was fighting his own battle Zulfiqar Ali lost his case without his voice being heard. The lawyer never showed up for the review hearing in 2008. Hurriedly the court appointed another lawyer present there to fulfil a formality.
It is time Zulfiqar Ali, a man who loves books and has spent the last 14 years of his life in imparting education to his fellow prisoners, were allowed to plead his case. Should not he be given a chance to live so that he continues to pursue his passion to spread knowledge and make Pakistan a more educated country? What I find remarkable is his ability to keep a steady head in times of severe personal crisis. How else will you describe the four years since 2008 when his last appeal was rejected by the Supreme Court? He has had 15 execution dates fixed but has escaped the noose by 16 stay orders. The present stay ends on March 31. While in jail, he lost his wife to cancer and his two young daughters are denied the love and care of their surviving parent. Zulfiqar has managed to obtain a transfer to Kot Lakhpat from Adiala Jail to be closer to his family.
Zulfiqar’s academic performance is impressive. He has taught over 300 prisoners how to read and write. A hundred have matriculated, 80 have done their FA, 50 have graduated while eight went on to pass their MA exams. He himself completed successfully two MAs while imprisoned and did his MD in Herbal Medicine from the Allama Iqbal University. His educational and teaching record itself should make this a strong mitigating factor for the commutation of his death penalty into life imprisonmen.