By Zubeida Mustafa
TWO high-profile executions — one in India and the other in Pakistan — were stayed last week. Had they been carried out, both would have created ripples beyond international borders. One was the hanging scheduled for October 20 of a Kashmiri man in India, Mohammad Afzal Guru, who had been convicted for his role in the storming of the parliament house in New Delhi in 2001.
The other case was that of Mirza Tahir Hussain, a British national, accused of murdering a taxi driver 18 years ago in Chakwal. These hangings have not been set aside. They have only been postponed — the first indefinitely and the second until December 31. In the coming weeks human rights lobbies can be expected to mount pressure on the governments in New Delhi and Islamabad to commute the sentences.
Guru’s case has deep implications for India’s politics and foreign policy. It is highly political — the 2001 event brought India and Pakistan to the brink of war and the opposition party, the BJP, is baying for blood. Yet objective opinion believes that Guru’s conviction was flawed. As his mercy petition awaits a decision by the president of India, his lawyers have said they will approach the Supreme Court in an attempt to get the conviction overturned.
Mirza Tahir Hussain’s case has a strong humanitarian dimension. The intervention of the British government — earlier discreet and behind-the-scenes and now more overt and vocal — has created international interest. Both cases have once again brought into the limelight the ongoing debate on capital punishment. Hussain’s case also raises questions about our legal system that has two parallel strands running within it. Since Ziaul Haq proceeded to Islamise the judiciary and the laws, judges and lawyers have encountered many dichotomies that have made it difficult to dispense justice.
Take the case of Mirza Tahir Hussain. For 18 years it has woven its way through both systems. First the sessions court convicted him in 1989. The Lahore High Court acquitted him in 1996 but withdrew its jurisdiction soon thereafter and the case went to the Federal Shariat Court which handed down a death sentence in 1998. The Supreme Court upheld the verdict. Thereafter it has been left to the family of the murdered man and the convict to negotiate compensation and forgiveness under the Qisas and Diyat law. Hussain, who has spent half his life in jail, says the cab driver was killed accidentally by his own gun which went off in a scuffle. The driver had tried to sexually assault Hussain, who had resisted. There were no witnesses and Hussain has consistently pleaded not guilty. He himself took the taxi and the gun to the police station and surrendered them there.
Is it not time for us now to ponder over the arguments advanced by abolitionists against the death penalty? Since 1993, when Italy launched a campaign to do away with capital punishment, 129 countries have either abolished the death penalty altogether, or retained it only for very grave crimes, or have not practised it for years. That leaves only 68 which still execute their citizens. Unfortunately, Pakistan happens to be one of them. According to the Human Rights Commission of Pakistan, this year 253 people have been sentenced to death in the country while 42 have actually been sent to the gallows. In 2005, 477 received the death penalty out of which 52 were executed. The year before that 394 were sentenced and 15 hanged.
These figures show that the courts are not as trigger happy as the impression we have. All of those who get the death verdict are allowed to fight their appeals and most of them do it for years. Given the ineptitude and corruption of the police and the way the prosecution works in this country, it is widely realised that the chances of a miscarriage of justice are very high indeed. In fact, there are always doubts about the guilt or innocence of a person sentenced to death. In that case one may well ask, why don’t we join the ranks of the abolitionists?
It is now universally acknowledged that the two major justifications for capital punishment — its deterrent and retributive character — have lost ground. The rise in the crime rate is a clear evidence of the failure of harsh punishments, including the death penalty, to deter people from taking to crime. In fact, the psychological impact of the death penalty has never been analysed in depth. As the Italian prime minister in 2000, Giuliano Amato, observed, the death penalty is “disgusting, particularly if it condemns an innocent”. It is its irrevocability that is so frightening. He added, “It remains an injustice even when it falls on someone who is guilty of a crime.” This might sound strange to people whose concept of the ultimate justice is that it should be retributive. An eye for an eye and a tooth for a tooth is the conventional wisdom in this society.
But it is time that people were told that any penalty which dehumanises and brutalises is an injustice to society itself. Exposure to state terrorism, as an execution by the state amounts to, affects the people’s psyche. It desensitises them to violence and aggression which they come to accept as normal behaviour. It encourages them to use force, resort to human rights abuse and violate the law. It is time the human dimension of the death penalty — its impact on the psyche of individuals — was also taken into consideration. The death penalty produces a negative impact on the public mind.
In a study published in the Journal of Criminal Justice, two sociologists citing cases of homicides in New York state in 1907-63 write that within a month following an execution two additional murders (above the normal rates) occurred. In one case a 12-year-old boy hanged himself after a well publicised execution. Publicity of violence incites further violence, is the conclusion they reach. And which hanging can be kept secret?
A picture of a public hanging in Tehran published by Amnesty International in its annual report of 2003 focuses on the reaction of the spectators. All of them are seen to be in a state of awe and shock — while one young man is actually seen bursting into tears.
This picture alone should be a convincing case for abolishing the death penalty and it must be done now, as I.A. Rehman, the director of the HRCP, pleaded in his article last week. As a first step the president could order a moratorium on capital punishment right away.