Sarmad Ali Advocate High Court

LLB (HONS)-England

LLM in Commercial Law-England

Whatever is now happening in Karachi or elsewhere in Pakistan; it can’t afford to opt medieval concept of retributive dispensation. The last PPP led coalition government suspended the capital punishment in 2008 by promulgating moratorium on hangings. I would here say that Ex. PPP President Asif Zardari who retired on Monday after completing five years as President of Pakistan played a leading role in postponement of the capital punishment for all crimes in Pakistan. It is believed that the moratorium was political for Asif Zardari. In the context of political, his father in law, Zulfiqar Ali Bhutto, a onetime Prime Minister of Pakistan and father of late Benazir Bhutto was executed by military dictator-Zia Ul Haq in 1979.

Since, coming to power in June, 2013 the newly elected Prime Minister-Nawaz Sharif, who favours a capital punishment announced to revisit the moratorium when new President gets into office. His announcement was unwelcomed by human rights groups’ and terror groups if Prime Minister lifts ban from death penalty all those terror suspects who are jails supposedly should be sent to gallows.

The capital punishment enjoys huge support in Pakistan. For instance, The PM’s advisor on national security and foreign affairs- Sartaj Aziz enunciated that not “moratorium was legal and we are debating whether to continue the stay on execution or not”. It appears that sizeable number of people in present government don’t oppose the reinstatement of death penalty in Pakistan which means that lots of people should be send to gallows. There is no doubt that Pakistani criminal justice system is sordid and can easily be manipulated by rich and corrupts. Then, reinstatement of death penalty may send innocent people to gallows and we all know that death punishment is irreversible.

There is a huge international pressure on Pakistan that not to reinstate death penalty. For instance, in Islamabad on August 27, Ana Gomes, the head of a European Union trade delegation, warned that new hangings would represent a “major setback” to Pakistan’s chance of obtaining lucrative trade tariffs. The civil society members and Human rights groups’ urged the government of Pakistan to extend the moratorium. In a joint letter to Sharif and others on 16^th August, Human Rights Watch and the International Commission of Jurists said a resumption of executions would constitute “a major step back for human rights in the country.” Human rights groups have also been sharply critical about the quality of trial justice in Pakistan, and have raised concerns about the high number of teenagers on death row. There is pressure on it to stay the executioner’s hand in order to keep the door to talks with militants/terrorists open. Generally, rumours are correct in Pakistan and one can hope that the newly elected President of Pakistan- Mamnoon Hussain in next few days may extend the moratorium on hangings.

Apart from whatever has been said for or against the death penalty over the past few weeks, the case for a moratorium on hangings commands respect on merit and needs to be presented over and over again. Those who advocate death penalty based their arguments on four following grounds. I will be dwelling with each ground separately in the below paragraphs.

I believe that the argument of deterrence to crime rate is just a myth. If we look at the continental Europe, the most countries there have abolished death penalty and ratio of crime is minimal except few. To the contrary, in US the ratio of crime is at the higher side comparing to Europe and most states have death penalty crimes but still people commit criminal activities. It is naïve to believe that resumption of death penalty will bring peace and help to resolve sectarian violence in Pakistan instead of considering the root causes of crimes. There is a mix of evidence on the correlation between the death penalty and the rate of crime in a society. Many countries in the world, such as Denmark, Iceland and Switzerland do not practise capital punishment but have low crime rates. For instance, Hong Kong is a country which has retained death penalty and it is also ranked 10^th in the world when it comes to crime rate. Here, I can safely hold that death penalty is not a factor in crime prevention. Furthermore, it can also be said that economic and social circumstances actually help to control and minimise to cut the crime in a society. The incidence of terrorism and sectarian violence has increased after the promulgation of anti terrorism laws. The research has revealed that hard laws and punishments alone have somewhere serious crime this objective can only be realised through non penal social engineering. Therefore, to me argument of deterrence to crime control is not strong enough to retain death penalty in Pakistan.

The second argument is crucial and important to be addressed. Islam lays death penalty for only two offences such as murder and mischief in the land. There is no religious sanction for awarding death for 26 of the 28 offences that carry the death penalty in Pakistan.

The objective of punishing a wrongdoer in a civilised society can be transformation of him a law abiding peaceful citizen along with rest of the citizens. Now question comes what should be the fate of a person on the death row who proves by his conduct that he has purged himself of all criminal tendencies and has learnt to serve his fellow beings? If executed, such a person will be punished for having reformed himself and not for his original offence.

The next argument is that hangings are necessary to console and compensate the victims’ families. The most effective form of consolation is payment of diyat and the state should arrange for that. The clamour for hanging is the result of the brutalisation of society. No criminal is wholly responsible for his acts and society must accept a part of the responsibility for his having gone astray.

All these issues need to be debated freely and in keeping with the traditions of earnest discussion and over a considerably long period. That is the purpose of a moratorium. If only executions are put on hold and matters are pushed under the carpet, Pakistan will make its present embarrassing situation more and more intractable.

Sarmad Ali