We don’t need the noose

By Zubeida Mustafa

PAKISTAN’S leadership is in a dilemma. Should it continue the moratorium on the execution of prisoners on death row that the PPP government had enforced since June 2008?

Soon after assuming office in June, Prime Minister Nawaz Sharif was inclined to revive capital punishment presumably to demonstrate his commitment to fighting terrorism in the country. He naively believes that hanging criminals reduces crime.

He is now wavering. Has the outcry from human rights bodies and anti-death penalty activists shaken his resolve? Or did he change his mind when the Taliban threatened a bloodbath if two members of the Lashkar-i-Jhangvi in Sukkur jail were hanged, as scheduled, in August?

Whatever the case, President Asif Ali Zardari managed to persuade the prime minister in their meeting last month to let the status quo continue until Sept 9 when the new president takes over.

The PML-N’s stature will go up considerably if it were to adopt a principled position on capital punishment. The fact is that the international trend is to do away with the death penalty on grounds of justice, fair play and a reformatory approach to punishment. It has now widely been established that hanging murderers has not lowered crime rates in any society.

Much to my dismay, many staunch abolitionists are now becoming sceptical as the deteriorating law and order situation is causing emotions to sway their judgement. It is vindictiveness and fear and not any consideration of a well-thought out anti-terrorism strategy that is guiding their views. This approach is fraught with danger. If revenge were the main determinant of policies, Pakistan’s society that is already falling apart will slide towards self-destruction even faster.

Hence it is time we reminded ourselves why we stand for the abolition of capital punishment. For me, the most important reason, apart from many others, why no one should be hanged is the flawed justice system this country has. There is no way that one can be certain if a miscarriage of justice has not taken place in the case of a sentenced prisoner.

A recent report by the Democratic Commission for Human Development identified the flaws in the criminal justice system under which insufficient investigation, torture of prisoners to extract confession and corruption militate against a fair trial. In many cases the innocent are indicted.

Worst of all, they are generally underprivileged and cannot hire good lawyers. They have to make do with state-sponsored legal aid — comprising mostly incompetent or irresponsible lawyers. Their case is lost even before it has begun.

This is what happened to Zulfiqar Ali, popularly called doctor, a title he earned when he did his MD in herbal medicine from the Allama Iqbal University while in prison. In his 15-year confinement he has upgraded his own education and also imparted knowledge to fellow prisoners. According to him, his side of the story has not been heard by the courts.

He says he was not provided the legal aid that was his right. The counsel who was to defend him did not meet him even once and Zulfiqar was declared guilty of the murder that he claims he committed accidentally in self-defence when he was attacked. He then appealed for a court review, but again he was let down by the court-appointed lawyer.

His statement speaks volumes for the state of the judiciary. “Since a defence counsel was needed to fulfil a legal formality, the judges, so it was reported to me, enlisted peremptorily one of the lawyers at that time present in court, who was clueless about my case.” Would that be considered a fair trial? Is human life so cheap?

Another victim of our systemic failure is Shafqat Hussain who was to be hanged on Aug 25 for a crime he apparently committed when he was 14, that is when he was a minor. He has already spent 16 years in jail. I do not know the details of the case. But being under 18 years of age it is inconceivable he could be held deserving of a death sentence.

Under Article 40 of the International Convention on the Rights of the Child of which Pakistan is a signatory, state parties are required to establish laws and institutions specifically applicable to children alleged to have infringed the penal law. Isn’t Shafqat’s case also one of miscarriage of justice?

We have no way of knowing how many of the over 7,000 prisoners on death row in Pakistan have received a fair trial. It would be the greatest of injustice even if one person is wrongly hanged because our law enforcement and defence agencies are incapable of checking violence and feel terrorism can be countered only by violence.

The government needs to adopt a clear-cut strategy that is underpinned by a sensible political approach. We know that the Taliban are not the only killers. As the home minister said political parties are also resorting to terrorism quite freely.

Mr Nawaz Sharif must think over his stance on the death penalty carefully. He will have to pronounce his party’s position by Sept 9. What is needed is a long-term approach. It makes no sense to require thousands to go through a nerve-racking procedural cycle of having an execution date fixed, followed by a stay order in the wake of which comes an announcement of a new execution date.

Source: Dawn

3 thoughts on “We don’t need the noose

  1. Can anyone quote a Verse of the Quran or an undisputedly authentic saying of the Prophet that legitimizes the existence of legal profession in Islam? Are Prosecuting Attorneys & Defending Attorneys Islamic concepts? The accused almost always tells lies. The victim is not invariably truthful either. The Defending Attorney pressures his client and his client's witnesses to pour out heaps of falsehood.. So does the Prosecuting Attorney. The judiciary is not immune to monetary aroma, political pressure or considerations of some other gains either. The legal profession the world over is a vast lie-making factory.
    In such a legal system, it is not impossible to inflict the monstrous irreversible penalty on someone who happens to be an innocent victim of a system that is in itself criminal. Alaf Khan

  2. You are in a sad place. Accused tell lies, the defence is not always truthful defending lawyer…pour out heaps of falsehood…there is corruption in the judicial profession.
    The legal profession the world over is a vast lie-making factory.
    You are wrong in some of the things you said about in Pakistan, you are unequivocally wrong about the world over, The justice system in most of the western countries is fairly just, obviously with some exceptions.
    The point of the piece was not the unjust justice system. It was the validity of the death sentence. You did not address it.
    There are many questions as the author indicated to determine this question.
    A political one. would it give popularity to the politician?
    It that were not the issue,then why did not PPP government pass the law to ban it instead of the moratorium?
    If the Islamic Law was the reason ,why there was a moratorium?
    Considering the principle : it is wrong for anyone including the state to deprive someone of his/her life. Or the other one life for life.
    There has never been a perfect justice system to preclude injustice.
    Only within the last few days in UK , a man has been convicted for life for the murder of a woman murdered fifteen years ago. Although this victims friend had been convicted and had served a sentence for the crime, but by accident fresh evidence appeared by chance and the actual murderer has been imprisoned for life.
    It the death penalty was in vogue this unfortunate who served years incarceration would not be there to enjoy the rest of his live and the real murderer would not be caught.
    There are cases to support the opposite as well.
    It is incumbent on a society to go for a principle and then polish the system to make it fair. In Pakistan no body has bothered to have a debate,the general public is not very knowledgeable or interested so like the rest of many issues it remains unresolved.
    Clean up your corruption first and then other things will fall into place.

  3. One wonders where Zia Awan, Hina Jilalni, Ansar Burney and Asma Jehangir disappear when it comes to cases like those of Zulfiqar and Shafqat. How can they call themselves human rights' lawyers when all they do is fight a few high profile cases which bring them lots of publicity and awards. Once the limelight is on them they forget about the other cases. Why are they not keeping track of these cases and providing legal aid to the wrongly convicted?–Zoya Saeedy

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