Pakistan: Opposing Death By Aiyan Bhutta As Asif Zardari’s tenure comes to an end, many fear or hope that the moratorium on the death penalty will also conclude with his departure. International organisations such as the ICJ and HRW along with members of Pakistan’s civil society have pressed for the continuation of this moratorium. Even if that happens, no one should be under the illusion that this can be a long-term solution to the problem. The moratorium should continue but only if a meaningful debate with a solution-based approach is followed. During the PPP’s tenure, the matter was brushed under the carpet for another day. Perhaps there was a realisation that a debate over capital punishment could be politically costly. However, a debate at this juncture is crucial and may help reconcile seemingly irreconcilable ideological positions. Those opposed to capital punishment first need to reconcile with the fact that in the current socio-religious context of Pakistan, the expectation that the death penalty will be abolished in the short-to-medium term is unrealistic. The religious argument in favour of capital punishment is seemingly strong as the Quran clearly states that the punishment for intentional murder and ‘spreading mischief in the land’ is death. However, the laws of Pakistan prescribe death as punishment for up to 27 offences for which there is no justification in Islamic law. The scope of the death penalty can be narrowed by effectively lobbying the government to legislate and revise the number of offences for which it prescribes death. It is absolutely criminal to prescribe the death sentence for more than two dozen offences. Therefore, an argument based on Shariah can help limit the number of offences for which death is awarded. Any meaningful debate on capital punishment can also not be carried out without the inclusion of the legal fraternity and judges. Section 302(b) of the Pakistan Penal Code, under which courts generally award punishment for the offence of intentional murder, prescribes death or life imprisonment as punishment for the crime. Over the last few decades, Pakistani courts have adopted death as the standard or ‘normal’ punishment for murder. However, courts are willing to consider ‘mitigating circumstances’ in order to lower the punishment to life imprisonment. Unfortunately, mitigation is not pleaded very effectively by lawyers and the concept is often also misunderstood by members of the judiciary. The scope of mitigation in Pakistan is extremely narrow – focusing primarily on gaps in the prosecution’s case. In other jurisdictions, such as the UK, mitigation is argued on factors such as the age and background of the offender, lack of premeditation, an intention to cause bodily harm rather than to kill and any previous convictions of the offender. While lawyers need to be trained to effectively argue mitigation before the trial and appellate courts, the courts themselves can take the lead in actively seeking out mitigating circumstances to ensure that the death penalty does not remain the norm. The courts can also take inspiration from the Indian jurisdiction to narrow the number of cases in which death can be awarded. The Indian courts actively consider ‘aggravating circumstances’ to award death in the ‘rarest of rare’ cases. Aggravating factors generally tend to include the overall heinousness of the crime and previous convictions of the accused among others. Before taking inspiration from across the border, it is pertinent to take stock of the fact that this can be a potentially arbitrary and subjective approach. In such cases, the accused can easily fall victim to the whims of a single judge who will have the power to determine whether the factors surrounding his case are ‘aggravating’ enough or not. If such an approach is taken then very narrow guidelines will have to be established to determine what factors are to be taken into account if death is to be awarded. Only an extensive debate between the executive, legislature, the bar, the bench and civil society can help determine such guidelines since a judiciary-led approach may only serve to worsen the current situation. Finally, the state also has a responsibility to ensure effective investigation and prosecution of capital offences for which training should be imparted to investigating officers. With the current standards of evidence gathering techniques and reliance on torture during investigations, death is an extremely unsafe sentence to award to individuals and should be given extremely sparingly. Those who are opposed to the death penalty should realise that an incremental approach is the only way in which their eventual goal of abolishment can be achieved. While taking a principled ideological stand is admirable, that alone cannot resolve issues pertaining to the criminal justice system, particularly capital punishment. The writer is a barrister practicing criminal law. (The News)
Posted on: Mon, 16 Sep 2013 11:45:20 +0000
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