On the eve of December 17, as the country conjointly huddled together to process the Peshawar attack, state officials decided to avidly take matters into hand. They came up with an invigorated attempt to heal a nation reeling from possibly the greatest catastrophe in its history. In an effort to tackle the widespread horror amidst revulsion penetrating into communal conscience, and with all eyes locked onto the civil and military leadership to tackle the crisis at hand with new cards, a precedent was set. It was agreed Peshawar was as a wound here to stay. And that justice must be meted out in accordance with the magnanimity.
Thus, the decision on part of the Nawaz government to lift the temporary moratorium on death penalty was met with mass approval of a nation seeped with vengeful sentiments. Politicians and judiciary were united for an immediate crackdown on terror suspects and ‘terror-related cases’ only. Hangings were initiated with Dr Usman, the mind behind the GHQ attack, and Arshad Mehmood, convicted for the murder plot against former President Musharraf. However, the government’s decision in March to widen the scope of capital offences took an alarming turn and so began the plight of the judicial system of Pakistan.
Unfortunately, we have seen the execution of over 152 prisoners in Pakistan since the lifting of the moratorium that has brought new and more potent questions to light: are states today even capable of putting prison inmates to death in a manner that is both rational and fair and consistent with the right to guarantee of due process? A right adorned by the Supreme Court itself: “Equal Justice under Law”?
There are over 8,000 people on death row in Pakistan, making it amongst the largest death row population in the world. By December 2011, as many as 314 people were sentenced to death by various courts, including six women. More than half of this number (161) were convicted under charge of murder.
In domestic stats, death row prisoners constitute over 10 percent of the prison population in this country. 64 years ago, only ‘murder and treason’ carried the death penalty in Pakistan. Today, 28 crimes carry the sentence of capital punishment
On average, death row inmates are made to languish in jails for more than a decade on average before being executed. The moratorium had initially created the hope of increased life expectancy, but that was short-lived.
Are states even capable of executing inmates in a manner that is both rational and fair?
In most cases of death row prisoners executed to date, most accused like Malik Muhammad Ashraf, Tahir Bashir and Shaukat Ali had each spent 15, 19 and 17 years in detainment respectively, fulfilling almost the complete term of life-imprisonment before their death sentences were upheld by court. This senseless practice of imposing double punishment upon the accused and sentences by the Supreme Court has created a bizarre situation that runs contrary to the letter and the spirit of section 302(b), P.P.C. which provided for a sentence of death or a sentence of imprisonment for life.
While legislative intent might lean in favor of extending some relief to the accused, the least that the Supreme Court could do for them was to exercise its due discretion and reduce their death sentences.
Pakistani prisons are home to prisoners vegetating and rotting in death cells awaiting their execution for so long that they now appear to look akin to victims themselves. Victims of the monumental systemic failure, which must be acknowledged and critiqued.
Similarly, there’s a ghastly state of affairs under the unfettered powers of Pakistan’s police which notoriously violates the basic principles of human dignity and uses torture to secure coerced confessions which are often the only ‘evidence’ licensing prisoners to death. These marks of torture and abuse are apathetically ignored by our courts as a ‘procedural characteristic’. The torture isn’t officially investigated, condoned or acknowledged.
While money often plays a big part in salvaging the haves, it is left to the plight of the have nots, the illiterate and the socially marginalized that bear the brunt of all mechanisms of police torture.
Abdul Basit is a death row prisoner posing a unique case before Supreme Court. After bouts of indelible pain and headaches, it was eventually found that Basid had tuberculosis as a result of lack of treatment and prolonged symptoms going unchecked. In a short span of 13 months, Basit went into coma for three weeks, recovering only to be paralyzed from the waist down due to spinal atrophy. He has been disabled permanently and despite being advised by medical boards, Abdul Basit continues to languish in jails. He has been denied a wheelchair and suffers great difficulty and humiliation when using the toilet.
It is in these undignified and inhumane circumstances that Abdul Basit is now facing death penalty. Time is of the essence and the Supreme Court must take into consideration the blatant injustice apprehending a disabled and medically unfit Abdul Basit’s case and set a just and timely precedent for the future of almost 8,000 death row prisoners yet to appear before the courts.
It is pertinent to mention here that cases like Abdul Basit may still be overwhelmed by others such as Kanizan Bibi’s, a current death row convict, bearing clear stark evidence of mental and physical degeneration, for the past three decades of her life. Kanizan Bibi, a murder convict diagnosed with severe schizophrenia and incapacitated after 26 years in prison bearing police torture, is perhaps the torchbearer of the plight of the mentally ill.
To prosecute a lunatic or a mentally unsound person in Pakistan poses a conundrum of moral and legal questions to the judiciary and affronts the very constitutional and international law that Pakistan justice system so callously, adheres to. While Rule 107 (iv) of the Prison Rules (1978) dictates ill health as a ground for clemency from execution, the Mental health Ordinance of 2001 in accordance with the Section 84 of the Pakistan Penal Code was brought forth as a law championing and protecting the right of any person suffering from a “disorder of his mental capabilities” and barring them from any state punishments or criminal proceedings.
However, the implementation of these state directions has been disregarded in favor of political gains and socially appealing policies by the present PML-N government. Muneer Hussain, a mentally ill prisoner from the remote area of Azad Kashmir, was the 100th death row prisoner executed this year. Convicted of murder in 2001, Hussain suffered long-term bouts of anxiety, paranoia and hallucinations that were only exacerbated during his incarceration in prison cells, without due medical attention or even acknowledgment of his symptoms, so much so that he was soon unable to recognize family members with absolutely no recollection of life before his arrest.
Despite renewed opposition and pleas from his lawyers at the Justice Project Pakistan who purported concrete evidence of Muneer Hussain’s medical records testifying to his unstable mental condition, Hussain was executed in Vehari at dawn of an April day this year.
To date no concrete evidence has been found of crime reduction or deterrence with the employment of the death penalty punishment. Research conducted by the UN in 2008 contested that death execution does not in fact serve as greater deterrence mechanism than life imprisonment, so the state rhetoric that defends its December 17 policy, falls flat.
Additionally, while many a country has sought out executions as capital punishment – the US, Saudi Arabia and China boasting the highest number of executions every year – Pakistan remains one of the few states in the world to employ the penalty for juveniles. Although with greater scrutiny and international pressure to redeem an on-paper decision to increase the minimum age to 18, the recent case of Shafqat Hussain sprung up as another back-pedaling of the government on their own policies. The accused who was convicted of murder as a juvenile, has surfaced on the international stage as a reminder of the deep-rooted contradictions in the executive-judiciary-legislative functioning of the country as the very law of the constitution is being blatantly compromised with every death warrant and stay issued one after the other in his 11-year-long case.
Similarly, justification of removing the moratorium as a mechanism to make up for the state’s failure is seen by many as short-sighted appeasement of the masses. While the supporters of the death penalty in Pakistan argue that it is the only effective way to deal with the scourge of militancy, those opposed to it point out that the state’s rather knee-jerk reaction to combatting terrorism of armed militant groups via execution is closer to risking the lives of thousands of innocents convicted without fair trial or evidence than it is to successfully prosecuting the few anti-state terror-related suspects it realistically holds. Death may not be a great deterrent for those willing to already sacrifice their lives to their causes.
Thus, it may be time to acknowledge that Pakistan’s judicial system is in dire need of a make-over. This system inspires little hope with excruciating face-off among defense lawyers fighting for the damned with indifferent dispensers of justice, zero judicial accountability and a justice system where justice is not dealt with in accordance with the very law of the land.