No hang­ing again, Sirs

The Pak Banker - - Front Page -

LAST week’s hang­ing of a former army em­ployee has caused an­guish and dis­may at home and abroad, es­pe­cially to all those who have been strug­gling for the abo­li­tion of cap­i­tal pun­ish­ment, and has re­vived de­bate on the sub­ject.

Much in­formed dis­cus­sion has al­ready been held on the rea­sons for re­pu­di­at­ing the con­cept of cap­i­tal pun­ish­ment: that the world should pre­fer re­for­ma­tive jus­tice to the eye­for-eye the­ory; that killing by the state is no bet­ter than mur­der by a crim­i­nal; that the death sen­tence is ir­re­versible and no rem­edy is pos­si­ble for an un­just ex­e­cu­tion; that in a coun­try like Pak­istan where the jus­tice sys­tem is ad­mit­tedly flawed the pos­si­bil­ity of mis­car­riage is ex­cep­tion­ally high, and so on. Th­ese ar­gu­ments need not be re­peated here, at least for now.

An im­por­tant is­sue to­day is that the lat­est hang­ing has caused a set­back to moves for adopt­ing a ra­tio­nal po­si­tion on the ques­tion of the death penalty that be­gan with the im­po­si­tion of an in­for­mal mora­to­rium on ex­e­cu­tions in Jan­uary 2009.

The government an­nounced in 2008 that it was work­ing on rec­om­men­da­tions to abol­ish the death penalty. In the fol­low­ing year, the prime min­is­ter told the Na­tional As­sem­bly that he had asked the in­te­rior min­is­ter to sub­mit a sum­mary to the pres­i­dent to con­vert the death sen­tence of con­demned pris­on­ers into life im­pris­on­ment.

The pres­i­dent ap­par­ently de­cided to de­velop a stronger con­sen­sus while no ex­e­cu­tion was al­lowed af­ter De­cem­ber 2008. The Sindh As­sem­bly was in­formed in Oc­to­ber 2009 that the pres­i­dent had asked the pro­vin­cial gov­ern­ments to file their views on the com­mu­ta­tion of death sen­tences. The fed­eral government was to take a de­ci­sion af­ter re­ceiv­ing sug­ges­tions from all the four prov­inces. What the prov­inces con­veyed to Is­lam­abad is not known but in Fe­bru­ary 2010 the in­te­rior min­is­ter told the Na­tional As­sem­bly that a law was be­ing drafted for abo­li­tion of the death penalty and that this law could be en­forced be­fore the year ended. He, how­ever, in­di­cated that the death sen­tence would con­tinue to be awarded for cer­tain of­fences.

In the fol­low­ing month, the law min­is­ter asked his min­istry to move for re­moval of the death penalty pro­vi­sion from the con­trol of the Nar­cotics Sub­stances Act 1997 be­cause, he said, award­ing cap­i­tal pun­ish­ment un­der the act was “un­called for, harsh and un-Is­lamic”.

Other re­lated de­vel­op­ments in­clude the ju­di­ciary’s in­ter­est in the sub­ject. The Supreme Court took suo motu no­tice of of­fi­cial ref­er­ences to com­mu­ta­tion of death sen­tences to life im­pris­on­ment but no reg­u­lar hear­ings were held. In 2011, a pe­ti­tion was moved in the Supreme Court call­ing for abo­li­tion of the death penalty but it is as yet to be dis­posed of.

More dis­turb­ing than the breach in the mora­to­rium is the state­ment of an ad­viser to government that the idea of abol­ish­ing death penalty has been dropped. Be­sides, the government seems in no mood to gen­er­ate a dis­course. As a re­sult, con­ser­va­tive el­e­ments are free to mis­lead the peo­ple that the pre­scrip­tion of death penalty for 28 of­fences in Pak­istan is pro­tected by di­vine sanc­tion whereas Is­lam pro­vides for death only in two cases mur­der and crim­i­nal com­mo­tion (fasad-fil-arz).

The fact that the man hanged last week had been con­victed by a mil­i­tary tri­bunal, like the one hanged in De­cem­ber 2008 be­fore the mora­to­rium be­gan, raises two se­ri­ous ques­tions that can­not be brushed aside.

The first is­sue is whether trial by mil­i­tary tri­bunals, which may be de­scribed as an­other par­al­lel sys­tem of jus­tice, is in ac­cord with the con­tem­po­rary val­ues of a fair de­ter­mi­na­tion of crim­i­nal li­a­bil­ity. The mil­i­tary may be en­ti­tled to pun­ish its per­son­nel for vi­o­la­tions of dis­ci­pline. But can it le­git­i­mately claim ex­emp­tion from the uni­ver­sal con­ven­tions and con­sti­tu­tional guar­an­tees for the right to life and dig­nity of per­son while award­ing ab­so­lute pun­ish­ment?

The Supreme Court only the other day called for an amend­ment to the pro­ce­dure for mil­i­tary tri­als whereby the ac­cused is not al­lowed the fa­cil­i­ties that are con­sid­ered an es­sen­tial part of due process. Last year also the court had asked for a re­view of the sys­tem of mil­i­tary tri­als. Be­sides, the task of re­view­ing the amend­ment of the Army Act of 1952, that pro­vides for trial of civil­ians un­der a law meant ex­clu­sively for ser­vice­men, has been pend­ing for quite some time. The pro­vi­sion is hit by all the ar­gu­ments em­ployed by the su­pe­rior ju­di­ciary while re­strain­ing the state from set­ting up mil­i­tary courts to de­cide cases of se­ri­ous crime in cer­tain sit­u­a­tions.

The ar­gu­ment for bar­ring civil­ians’ trial by mil­i­tary tri­bunals re­ceives strength from the scheme en­vis­aged by the Of­fi­cial Se­crets Act. This law was de­signed largely to deal with spies op­er­at­ing against se­cu­rity (mil­i­tary) in­ter­ests but the trial, even for of­fences pun­ish­able with death, is to be held by a nor­mal civil­ian court. (That it is a bad and out­dated piece of leg­is­la­tion and needs a thor­ough re­vi­sion is an­other mat­ter).

In any case, it seems nec­es­sary not only to bar mil­i­tary tri­bunals from try­ing civil­ians but also for giv­ing se­ri­ous thought to the pos­si­bil­ity of trans­fer­ring the mil­i­tary tri­bunals’ ju­ris­dic­tion in crim­i­nal cases to nor­mal civil­ian courts.

The sec­ond is­sue is whether cases of cap­i­tal pun­ish­ment awarded by mil­i­tary tri­bunals are ex­cluded from the purview of Ar­ti­cle 45 of the con­sti­tu­tion which grants the pres­i­dent the power to par­don a per­son con­demned to death or to com­mute his sen­tence.

This con­sti­tu­tional pre­rog­a­tive of the pres­i­dent has not been ex­tin­guished but suc­ces­sive heads of state have been too timid to ex­er­cise it. And we are faced with a strange anom­aly that while the pres­i­dent is told that he can­not par­don a death row con­vict the army chief is not sub­ject to any such con­straint.

The point at is­sue is not unim­por­tant it in­volves a mat­ter of life and death for some peo­ple, how­ever small their num­ber. In­stead of go­ing into lengthy de­bates on the pow­ers of mil­i­tary tri­bunals to award the death penalty and the prac­tice re­gard­ing com­mu­ta­tion of the death sen­tence and the im­pact of the Qisas law on par­don, it would be much eas­ier, bet­ter and safer to abol­ish the death penalty.

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