Pakistan is among the top killers under law in the world. It has approximately 7,400 convicts awaiting execution. Worse, in recent years, instead of relenting in terms of lowering the crime rate because of the deterrent effect of the death penalty, the hangings have actually increased. Interestingly, the Supreme Court of Pakistan has actually ordered that there ought to be more capital punishments!
We have retained the death penalty, with a lot of other countries in the world, because we think it will deter the killers among us. But the record shows that death is no deterrence. The big hangings in Pakistan as elsewhere have actually aroused conflicting passions and negated the concept of deterrence. The penal system in Pakistan is so shot through with loopholes and defects that it may be better sometimes not to hang the alleged killers: there is mal-administration of justice, police service dereliction, and cultural prejudices affecting women and religious minorities.
Laws have to be made on a rational basis to be effective. Culture and social habits have to be kept in mind before framing them. No law in the world has worked if it is not linked to the time and place it is supposed to serve. If lawmaking is literalist and wrongly borrowed from Revelation it is bound to go wrong. Most of the time such laws, handing down death, prove to be ‘bad laws’ and remain uselessly appended to the statute books without being practised. Where such laws are used they usually aim at victimising those without power and privilege.
In 1947, at the time of independence, only two charges carried the death penalty. Today, ‘27 different charges do so, including blasphemy, stripping a woman of her clothes in public and sabotage of the railway system’. Presumably, the death-attracting charges were added to reduce the criminal streak in the country. After 50 years, the increase in such laws should have cut down the rate of the capital crime, but it has not. The law and order situation has worsened. Pakistani courts, where judges dispensing the death sentence are poorly paid and are low in social order, have actually made conditions worse. And the Special Courts set up to dispense speedy justice, instead of ending crime, have further lowered the chances of citizens getting a fair trial.
In 2003, a Supreme Court ruling stated that, in cases of murder, ‘the normal penalty of death should be awarded and leniency in any case should not be shown, except where strong mitigating circumstances for lesser sentence could be gathered’. That means that in murder cases the sentence is usually death. But this seems in deference to the tribal requirements of revenge rather than justice. After that, the Shariat Court and the Supreme Court have ruled that the presidential pardon is un-Islamic without considering that the punitive system in Pakistan is defective. Was any proof of that needed after hundreds of women were released from jails waiting to die because of zina (rape equated with fornication) cases?
The right to pardon under Islam is given to the kith and kin of the victim of murder. This is under the Qisas and Diyat law which is infructuous today because it is not in consonance with our social conditions. This is what happens when a society tries to follow historic precedents in a literalist fashion. The killer can lean on the possibility of the descendants of the murdered accepting blood money, as a part of his premeditation to murder. The HRCP calls the system of diyat ‘privatisation of justice’. If the intent was to implement the law of God and then pray that mere divine blessing would lead to putting an end to crime and improve law and order, it has not worked. In fact it has resulted in a horrible travesty of divine law itself for which God will doubtless hold us responsible.
The unthinking implementation of what we consider divine law has shifted the locus of its punitive aspect from the public to the private sphere. The crime at issue is not a matter between the state and the individual perpetrator but – in a very tribal way – between the criminal and the wronged. The application of hudood in Pakistan has facilitated the retribalisation of society in the country. Local councils have started handing down their sentences while the writ of the state – which ran much better under British Raj – is steadily dwindling.
The world is hanging on to death penalty while the European Union, the United Nations and its ancillary non-governmental organisations advocate its abolition. There is very strong evidence to prove that death is no deterrence. Pakistan is clearly a testing ground for those who would abolish death as punishment. The Advisory Council of Jurists of the Asia Pacific Forum of National Human Rights Institutions, says: (1) States should move towards de facto, and eventual de jure abolition of the death penalty; and (2) Until then the death penalty should only be used for the most severe crimes. There is nothing wrong with this advice.
Source: Daily Times