The farce of justice

India recently hanged to death Yakub Memon, a chartered accountant, for his role the Mumbai bombings in 1993 which took 257 innocent lives. The execution took place on July 30, two hours after the final decision on Memon’s fate was taken by the bench which was constituted after two Supreme Court judges had differing opinions on the matter.
This execution has sparked a fiery public debate on the abolition of the death penalty in India. Prominent figures like Salman Khan and Shashi Tharoor who vociferously opposed Yakub Memon’s hanging were ostracised and labelled as unpatriotic or sympathetic to terrorists. Anil Dharkar, a prominent journalist, very rightly pointed out the arbitrariness and politics that surrounds the death penalty in India by asking how many were prosecuted by the state when thousands of Sikhs and Muslims were killed by Hindu mobs in 1984 in Delhi and in the 2002 Gujrat riots respectively. The answer is zero. He further highlighted how the state rescued those convicted for Rajiv Gandhi’s murder for the simple reason of them having already spent 22 years in prison. So had Yakub Memon but he was not pardoned as the pressure from the public driven by media publicity seemed to have influenced the judges of the apex court.
Things are no different, in fact even worse, in Pakistan. After the gruesome attack on the Army Public School in Peshawar on December 16, 2014, the public was thirsty for revenge and as a knee-jerk reaction the moratorium on the death penalty was lifted. The 21st Amendment passed to pave the way for the creation of military courts was duly endorsed by the Honorable Supreme Court and military courts are now a reality we have to live with for another two years.
In India, however, there are certain additional safeguards – at least on paper, even if practically little relief is given to people like Yakub Memon. These safeguards include a right to the second review of the Supreme Court’s appeal decision and a

mechanism known as ‘curative petition’ whereby three senior-most judges of the apex court determine whether any exceptional oversight has led to miscarriage of justice and avert or cure it accordingly. Additionally the Indian Supreme Court declared that the death penalty be awarded only in the “rarest of the rare” cases and this does involve subjectivity and a degree of arbitrariness as there is no objective criteria to determine when the threshold is passed in this regard, but at least there is a filter which does not happen to be the case in Pakistan.
Whether we must jettison the death penalty altogether or not is another debate altogether but the history of the criminal justice system of Pakistan is replete with instances of miscarriage of justice and gross violations of international human rights law. The lifting of the moratorium as a means to curb crime and terrorism and to satisfy the desire for revenge is a logically flawed and imprudent assertion as there is no statistical data indicating a correlation between the death penalty and crime prevention. Second, a state policy to be based on emotions of revenge and retribution is absolutely ridiculous.
The very purpose of lifting of the moratorium becomes obsolete with the record revealed by Reuters stating that of 180 people hanged since December 2014, fewer than one in six were linked to militancy. So if we are not executing terrorists then who? It is people like Abdul Basit, a paraplegic who went into coma for three weeks, and was sentenced to death in 2009 and Khizer Hayat who is schizophrenic and whose plight is similar to that of Kanizan Bibi who was a schizophrenic and despite having spent 26 years in prison was executed. The execution of these two men has been stayed at the moment.
How can we forget Shafqat Hussain, the case that attracted a lot of media attention, a juvenile who was tortured into confessing and despite the governments of Sindh and AJK calling for his execution be halted, nothing could change his fate. Shafqat’s case was similar to that of Aftab Bahadur Masih who was executed in June this year and was only 15 years old at the time of commission of the offence in 1995 (a juvenile could be awarded a death penalty then).
The minimum age for execution was raised to 18 under the Juvenile Justice System Ordinance 2000, which has been challenged in the senior courts and whose future remains uncertain. It is in gross contravention of both national and international law to execute juveniles, and those mentally or physically unfit.
Similarly the police department is inefficient and corrupt and the tactics they used to cover up their incompetency include torturing the accused into confessing and, if someone has absconded, harassing family members and often times arresting and implicating next of kin instead. Another facet of the misery of condemned prisoners is what is known as ‘double-jeopardy’ – despite having spent more than 15 years behind bars, the duration equivalent to life imprisonment, they are still executed. This goes against the letter and spirit of Section 302 of the Pakistan Penal Code, which provides sentence for murder to be either death or life imprisonment and not both.
In a recent Supreme Court judgement in Mohammad Arshad v The State (2015 SCMR 257), the apex court distinguished this case from the earlier precedent set in Hassan and others v The State (PLD 2013 793) and Dilawar Hussain v The State ( 2013 SCMR 1582), ruling that double jeopardy in itself is not sufficient to commute a death sentence. In absence of effective investigation and good legal representation, miscarriage of justice is commonplace.
Article 45 of the constitution of the Islamic Republic of Pakistan allows condemned prisoners a chance to send a mercy petition to the president who has the discretionary powers to commute the sentence, but practically speaking such petitions are not only refused but also ignored. It is also common knowledge that it is the interior ministry that takes decisions on mercy petitions and not the president himself. There is lack of clarity in the Prison Rules with regard to mercy petitions, and the provision in the constitution itself is apparently redundant as hardly any convict is given any relief under this provision.
We need to overhaul the criminal justice system as the word ‘justice’ is more of a farce in the present situation where it is predominantly the poor who are thrown to the gallows while the rich – like Shahrukh Jatoi – get away unpunished by exploiting the non-compoundable status of the offence of murder. There is still time and the president of Pakistan can exercise the discretionary powers given to him under the constitution to pardon lives of Abdul Basit, Khizer Hayat, and many others like them who have been languishing in prison for years and there are compelling reasons to commute their sentences.
The writer is a barrister based in Islamabad.
Email: eishakhan2@gmail.com