Death penalty should end

The Pak Banker - - Front Page - Zubeida Mustafa

LAST Thurs­day Pak­istan re­ported its first ex­e­cu­tion in four years. Muham­mad Hus­sain was hanged in Mian­wali jail thus end­ing the tacit mora­to­rium the gov­ern­ment has ob­served since 2008 when Gen (retd) Mushar­raf’s rule ended.

The con­vict was a sol­dier of the Pak­istan Army who was ac­cused of killing his se­nior — a haval­dar — with whom he was em­broiled in a per­sonal dis­pute. This came as a shock to hu­man rights ac­tivists who have been cam­paign­ing against cap­i­tal pu­n­ish­ment. This ex­e­cu­tion took many aback be­cause only a fort­night ago the pres­i­dent’s spokesman Farhat­ul­lah Babar had dis­closed that the gov­ern­ment was work­ing on a bill to abol­ish cap­i­tal pu­n­ish­ment be­fore the elec­tions. The bill will con­vert the death penalty into life im­pris­on­ment.

In the last four years that Mr Asif Ali Zar­dari has been in of­fice no pris­oner had been ex­e­cuted in any jail in Pak­istan un­til last week. Not that no death sen­tences were handed down the death penalty con­tin­ues to be recog­nised as a form of pu­n­ish­ment in Pak­istan’s ju­di­cial sys­tem. Nor were pris­on­ers given clemency apart from a few.

But a tor­tu­ous pro­ce­dure was adopted. An ex­e­cu­tion date for a pris­oner on death row would be fixed, a clemency ap­peal made on his be­half and the pres­i­dent’s of­fice would grant a stay or­der ev­ery three months, and thus pris­on­ers — over 8,000 of them — es­caped the noose.

It did mean that a pris­oner had a sword per­pet­u­ally hang­ing over his head. Zul­fiqar Ali, a death-row pris­oner in Kot Lakh­pat, main­tains a record. He has had 16 ex­e­cu­tion dates and 17 stay or­ders is­sued since 2008 when his re­view pe­ti­tion was turned down.

In 2007, the UN Gen­eral Assem­bly had rec­om­mended that gov­ern­ments that had not abol­ished cap­i­tal pu­n­ish­ment should an­nounce a mora­to­rium on ex­e­cu­tions.

Seen against this back­drop, the hang­ing of Muham­mad Hus­sain last week comes as a re­gres­sive step. The Pun­jab chief of pris­ons ex­plained that this con­vic­tion was a mil­i­tary mat­ter and the pres­i­dent did not in­ter­vene in such cases that fell un­der the army’s ju­ris­dic­tion. But it was also stated that clemency had been turned down by the pres­i­dent as well as the chief of army staff.

If the ap­peal went to the pres­i­dent, it means he had a say in the mat­ter. Why was the ex­e­cu­tion car­ried out in a civil­ian prison if it was a mil­i­tary is­sue? Ap­par­ently this was in­tended to demon­strate to the world who ac­tu­ally ex­er­cises power in Pak­istan when the gov­ern­ment and the mil­i­tary are at cross pur­poses.

It is time the gov­ern­ment acted speed­ily on the is­sue of cap­i­tal pu­n­ish­ment that has been hang­ing fire for long. Last year Bar­ris­ter Za­farul­lah had pe­ti­tioned the Supreme Court to abol­ish the death sen­tence, given the cor­rup­tion that is rife in the ju­di­cial sys­tem. The chances of in­no­cent peo­ple be­ing de­clared guilty and sen­tenced to death wrongly are very high.

The process of law re­quires that any per­son tried for a crime should have the right to full le­gal de­fence. Un­for­tu­nately, this is not the case in Pak­istan. It has been clearly es­tab­lished again and again that po­lice in­ves­ti­ga­tions are of­ten flawed, and lawyers ap­pointed by the state do not al­ways per­form their du­ties re­spon­si­bly re­sult­ing in the mis­car­riage of jus­tice.

Take Zul­fiqar Ali’s case. Ac­cord­ing to him he was not pro­vided com­pe­tent and hon­est lawyers. The coun­sel ap­pointed by the courts to ar­gue his ap­peals did- n’t meet him at all. As a re­sult his re­quest for a re­view was taken up by Jus­tice Iftikhar Chaudhry who con­verted it into a re­view pe­ti­tion suo motu in 2006. But be­fore any ac­tion could be taken the chief jus­tice was out and Zul­fiqar Ali’s pe­ti­tion was heard by the PCO judges.

The lawyer who was sup­posed to rep­re­sent him never showed up at the re­view hear­ing in 2008. Such is the state of our ju­di­ciary that the judges re­port­edly caught hold of one of the lawyers present in court, who had no inkling of the case, and en­listed him as the de­fence coun­sel to ful­fil a for­mal­ity. Would that be con­sid­ered a fair trial? And we do not know how many of those sen­tenced to death in Pak­istan have suf­fered a sim­i­lar fate.

All this comes at a time when the mo­men­tum to­wards abo­li­tion of the death penalty is grow­ing. Pro­to­col 2 of the In­ter­na­tional Covenant on Civil and

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