Reinstate the moratorium

The World Day against the Death Penalty will be observed tomorrow. The day is marked to urge states to abolish capital punishment since it has no place in a modern society. This is primarily because the objective of punishment is to rehabilitate and reintegrate criminals into society and not exact revenge.

More than two-thirds of the world has abolished the death penalty in law or practice. At least 104 countries have abolished it for all crimes, seven countries have abolished the death penalty for ordinary crimes and 30 countries haven’t executed anyone in last 10 years and have abolished executions in practice. There are only 57 countries who still uphold the death penalty as a form of punishment.

A report of the World Coalition Against Death Penalty claims that Pakistan was among the top five in the list of 23 countries where executions were carried out in 2016. The report also claims that Pakistan awarded the death penalty to the juvenile offenders by violating the principles of the ICCPR and the CRC.

Our criminal justice system is full of such miscarriages of justice where people have been denied the opportunity of a fair trial. And yet, courts in Pakistan can award the death penalty for 27 different crimes, including blasphemy, sexual intercourse out of wedlock and narcotics smuggling. We can’t forget when Mazhar Hussain was acquitted by the Supreme Court of Pakistan two years after his death in the prison. The same court acquitted Ghulam Sarwar and his brother Ghulam Qadir, who were shockingly executed before their appeals could be heard and decided by the Supreme Court. We are still not prepared to accept this bitter reality and find answers to the countless questions that this problem presents.

In addition to the failure of the administration of justice through ordinary courts, Pakistan also has a history of introducing military courts for the trial of civilian suspects of terrorism. These mechanisms have been viewed with suspicion by human rights activists because they are considered to be deficient in fulfilling the components involved in an individual’s right to a fair trial.

Since January 7, 2015, military courts have convicted nearly 309 people – including 169 death convictions – while at least 48 others have been executed. All the cases that were reviewed were eventually dismissed by the high courts and the Supreme Court. Only the conviction of Muhammad Imran was set-aside by the Peshawar High Court.

Astonishingly, 93 percent of the convictions are based on confessions where the accused were defended by ‘military officers’ and the families had limited access in these matters.

There are around three million cases pending in our courts. In some cases, it takes decades to prove that a person is not guilty. A system with a weak administration of justice, false FIRs, incomplete and outdated investigation, corrupt practices, the unavailability of modern forensics for the investigation process, false testimonies, weak prosecution, limited access to lawyers due to financial or other reasons and overburdened courts where only the rich can afford justice takes between 15 and 20 years to decide a criminal case. It can’t guarantee the accused the right to a fair trial.

How can the state legitimise the death penalty when it has failed to guarantee these important components of an individual’s right to a fair trial? The state shouldn’t execute people on the basis of a deficient and fragile criminal justice system. In order to guarantee the right to a fair trial and make the administration of justice efficient, it is essential that Pakistan work on its police, prosecution, parole, prisons and judicial systems.

When capital punishment is non-reversible, has no special deterrent effect and is based on a system where there is a high probability of a miscarriage of justice, executions can never serve as good options. Therefore, Pakistan should reinstate moratorium on death penalty and should ratify the Second Protocol to the ICCPR. It should also work to improve its criminal justice system by protecting witnesses, lawyers and judges. It should introduce timely reforms in the criminal justice system because after January 7, 2019, problems within this system might be used once again a rational ground to further extend the operation of military courts.

 

The writer is a Peshawar-based lawyer.

Email: irshadahmadadvocate@gmail.com

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