prisoners and 'disappearances'
penalty abolished (year)
Capital punishment is perhaps the most problematic concern faced by the humankind. Whether the right to live belongs to the victim alone or extends to the criminal as well is an eternal question that has failed to draw a definitive answer as yet: neither from the religious side which is undecided between the punishment and the forgiveness edicts nor from the human rights world. It is even beyond the pale of the retributive and reformative justice system debate.
The United Nations, too, has not said anything with finality and includes it only as an option in one of the protocols tied to the covenant on civil and political rights.
And yet an increasing number of countries, in only a few decades, have moved to the other side of the fence. About 137 countries of the world have almost abolished capital punishment while 60 countries of the world retain it. Pakistan is one of the five countries where 88 percent executions took place in the year 2007.
Meanwhile the debate continues. The federal cabinet in Pakistan recently decided to commute all death sentences to life imprisonment. This was a directive that would not have been easily accepted under any circumstances and, expectedly, lies with the Supreme Court of Pakistan, awaiting a more acceptable decision.
We tend to agree with the voices that have objected to the government's strategy of 'springing a surprise' before educating the people and initiating some kind of a public debate on the issue.
Although we at TNS agree with the human rights' view of capital punishment and reject it on the grounds of being a less efficacious form of punishment, we think that a time has come to initiate the public debate in a more serious and sincere way. In Pakistan, the issue of capital punishment, quite unlike many other punishments, has been overly projected by the clerics who favour the extreme view of 'life for life' at the expense of the 'forgiveness' part of the Quranic verse. The human rights argument -- which is not an anti-religious argument by the way -- has failed to reach the masses as it should have.
Therefore, we have allowed this space for both sides of the argument, the religious and the secular. We do not want the public to jump to conclusions. We want them to think, analyse and then decide on whether they want to opt for reform or retribution.
The decision taken by the federal cabinet to commute all death sentences has instantly stirred up what promises to be a long-drawn-out and acrimonious debate
By Kamila Hyat
Hours before poison was pumped into his veins, John Nicols, a young black American executed in Texas in March 2007, described in a letter to his mother what happened as he was prepared for death.
"They cut off all my clothes and stripped me naked. I finally got a pair of boxers but my feet were shackled together, my hands were chained and then another chain bound my feet, went up over my shoulders and bound my hands."
On the narrow table to which he was strapped as a lethal injection was administered, Nicols blasted prison personnel involved in the execution. His vivid description and those of others like him have played a growing part in bringing home the sheer horror of the death penalty and the brutality that underlies it. It is due to these testimonies, and the continuing evidence of racist bias behind many executions in America, that surveys indicate more people today favour life in jail without parole over death. Executions have also fallen to their lowest level in ten years.
This change in the hardline approach taken by many US citizens who have traditionally favoured the death penalty, has come about only after years of hectic campaigning and public debates initiated by groups who have opposed the death penalty, since it was reintroduced in the country in 1976 after a ban that lasted four years. The USA, of course, is one among a dwindling number of countries that still retain the death penalty. 137 countries, according to Amnesty International, have abolished it in law and in practice. Of the 60 who retain it, the vast majority of executions, 88 percent in 2007, take place in only five countries: China, the USA, Saudi Arabia, Iran and Pakistan.
The decision taken by the federal cabinet to commute all death sentences has instantly stirred up what promises to be a long-drawn-out and acrimonious debate. Over 7,000 convicts, currently on death row, would be spared the gallows by this move. The Supreme Court has sought an explanation from the government on the issue, with the hearing into the matter now adjourned until August. Immediately, religious groups and others have spoken out against the government decision. More controversy seems likely to follow. The fact is that many in the country seem to believe that the abolition of the death penalty would, in one way or the other, 'encourage' crime and let those guilty of offences that include murder 'off the hook'. Such thinking, which is rooted in a medieval notion of justice as retribution, or an 'eye for an eye', ignores the fact that justice that aims at reform is often far more effective in pushing down rates of crime in societies.
There have been many examples of this since 1863, when Venezuela became the first country to abolish capital punishment. In Canada, for instance, the homicide rate has fallen 40 percent since 1975 -- although the death penalty for murder was abolished in 1976.
In the UK, the 1965 ban on death penalty followed the outcry raised since the 1950 execution of a young father and husband, Timothy Evans. Evans was accused of murdering his infant daughter and subsequently hanged. He continued to profess his innocence to the end. It was later proved a mass murderer, John Christie, had been responsible for the crime. A family was destroyed by the unjust killing of Evans. There is every reason to believe that such grotesque miscarriages in justice have continued to take place since. The death penalty is inevitably used most often against the poor and powerless. In the US, numerous studies document the fact that most of those put to death by the State are people of colour, often the least able because they are poor and victims of discrimination, to win against an oppressive system. The slick lawyers who save the rich are unavailable to them; they lack too the education and confidence that the more privileged have on their side. It is, of course, easy to see how such inherent bias within the legal system would work against the most vulnerable in Pakistan. Certainly, all or almost all of those on death row, held in tiny cells sometimes for a decade or even more, are impoverished; it is hard to believe that in a set up where money and influence decide so much, that all of them have had a fair trial. The reality is that a rich man in Pakistan, who kills another, is unlikely to be hanged. A poor man who does so is far more certain to face this fate.
This is reinforced by the Qisas and Diyat Ordinance of 1984 which converts murder into a private matter to be settled between the murderer and the family of his victim rather than a crime against society. The provisions of the law allow a murderer to escape punishment of any kind if he can persuade the heirs of the victim to accept blood-money, or else coerce them into 'forgiving' him. Naturally, this works in favour of the wealthy or those powerful enough to make threats. It can lead, too, to terrible injustice. The law, for instance, was used by the parents of Samia Sarwar, a young woman gunned down in the Lahore office of her lawyer in 1999 for seeking a divorce from the husband chosen by them. Samia was killed by a hired assassin brought to the office by her mother. He was later 'forgiven' by Samia's parents, and the heinous crime went unpunished.
The hearing in the Supreme Court is likely to trigger a fierce debate. Inevitably, it will assume religious connotations. The 2007 report by the Council of Islamic Ideology (CII), which puts forward the view that Islam sanctions capital punishment only for murder and 'fasaad fil arz' (riots in the world) is likely to figure. But other less enlightened opinions, too, will no doubt be voiced. One must hope that at the end of this process, Pakistan moves closer to joining the countries that have banned the death penalty, or at the very least limiting the number of offences for which it can be awarded, and thereby minimising the suffering and injustice that often accompany the process at every stage, until that final, long walk to the gallows.
•Prisons housed 95,016 detainees as against an authorised capacity of 40,825
•Across Pakistan, 67% of the prisoners were awaiting trial
•134 convicts were executed and 309 awarded death sentence. There were more than 7,000 prisoners on the death row
•The number of 'missing' persons in lists before the Supreme Court swelled to over 400 before the Nov 3 judicial purge abruptly ended hearings. Ninety-nine out of 198 missing persons on HRCP's list before SC had been traced before Nov 3
Courtesy: Human Rights Commission of Pakistan Annual Report - State of Human Rights in 2007 -- Released in 2008
Cape Verde (1981)
Cook Islands (2007)
Costa Rica (1877)
Czech Republic (1990)
Dominican Republic (1966)
East Timor (1999)
Marshall Islands (1986)
New Zealand (1961)
San Marino (1848)
Slovak Republic (1990)
Solomon Islands (1966)
South Africa (1995)
United Kingdom (1973)
Vatican City (1969)
-- Javed Ahmed Ghamidi, religious scholar, and President, Al-Mawrid
The News on Sunday: Could you tell us about how Islam views capital punishment?
Javed Ahmed Ghamidi: Human life, property and honour hold a sacred place not just in Islam and other religions but also in secular societies in general. The whole world agrees that if somebody has committed the heinous crime of taking a human life, he ought to be punished. Now, one might ask, as to what should be the nature and the severity of the punishment. In my opinion, the human mind failed to think up one, single formula for that, which is where guidance from Allah's prophets helped us -- so that we could be saved from taking one wrong, extreme position or the other.
The Holy Quran clearly lays down that capital punishment is mandatory in two situations: a)when a person kills the other person, and b)when a person becomes a threat to the society/nation as a whole. For no other crime whatsoever, does Islam award the death penalty.
Since there is the possibility of error of judgement in dealing with cases of murder, Islam retains the punishment so that nobody shall see it as a license to kill; but it also shows us the path of 'afu o darguzar' (forgiveness). For instance, it ordains that if the victim's heirs agree, the murderer can be condoned.
As for crimes against humanity -- what the Quran terms as 'fasaad fil arz' -- the court of law has the right to award the capital punishment but it also has the option of banishing the offender from the country/state/land.
To sum up, Islam ordains punishment as a deterrent for crime. But it also states how the punishment should be given so that the courts may not take undue advantage. And, finally, it shows the path of forgiveness.
Law informs the extreme options of the punishment, and the judge is bound to consider the circumstances of the offender and give the verdict. History tells of how once Hazrat Umar (RA) forgave a person who had committed theft, considering that the country had seen a period of famine.
TNS: Does the state have the right to announce general pardon, maybe, in honour of its martyred leader?
JAG: No. This used to be the practice of the kings; it's not the done thing in a civilised and a democratic society/country. The kings would forgive prisoners when there was an occasion of, say, a prince's coronation or a birthday. The idea was to reinforce the sovereignty of the ruler. But, in a democratic state/government where the rule of law prevails, an individual does not have the right to make such decisions. And, I am not just talking from the religious point of view. If the court of law has found someone guilty, how can the state announce pardon? This is against the law as well as the norms of a civilised society. If you want to pay tribute to your leader, there can be a hundred other ways of doing so.
TNS: The interpretation of 'fasaad fil arz' seems to have varied from time to time. When Pakistan was created there were precisely two punishments set for the offender; today, we have more than 20. Comment.
JAG: See, the punishments that were set in our penal code are not based on the dictates of the Holy Quran. They are an amalgam of contradictions.
Islam clearly distinguishes a 'simple' crime from 'fasaad fil arz'. For example, stealing is a simple offence; if it becomes a dacoity, it falls into the category of 'fasaad fil arz'. Likewise, 'zina' is a simple crime but 'zina bil jabr' is 'fasaad fil arz'. The same goes for a simple act of killing -- 'qatl' -- and an act of terrorism.
TNS: Don't you think that awarding capital punishment projects Islam as a retributive religion?
JAG: Islam gives death penalty when there is no room for reformation of the criminal. Prophet Muhammad (PBUH) used to especially request the victim's family to forgive the culprit. If granted, forgiveness can -- in a lot of cases -- help put an end to age-old differences or feuds between traditional enemies/groups. The idea is to strike a balance in the society.
TNS: In Canada, capital punishment has been done away with, which is cited as one reason for the reduction in crime rate. Can we, as a state, introduce similar changes in our judicial system -- even if on trial basis?
JAG: The purpose is not just to punish the offender -- there, of course, conditions apply -- but also to ameliorate the society by setting an example ('ibrat'). In Saudi Arabia, murderers are executed in public for the very same reason. This has yielded very positive results.
Our social system is faulty to the core. There are so many factors that contribute towards causing crime, such as unemployment and inflation. Life has become hard for a common man. Suppose we choose to amend the punishment. What do you think should the alternative be?
TNS: Maybe 25 years' imprisonment?
JAG: That is the most harrowing form of punishment anyone can get. Here the person is alive, but his life has become a living hell. He is at the mercy of the jailors. He is deprived of his children, his wife and his near and dear ones. His children are deprived of their father; his wife is without her partner. Then the children are condemned to see their father behind bars and must also live with the social 'stigma'. I consider this punishment itself against human rights.
On the other hand, when you have buried your dead, you gradually get over the mourning period and move on with life. Life imprisonment is a more recent phenomenon; it became common only in the last couple of centuries.
TNS: Is murder a crime against the society/state or the individual?
JAG: Both. It's a crime against the victim and his family as well as against the state or society. So, it has an individual aspect as well as a collective. Quran lays down that the opinion of the victim's family does not count if the state thinks capital punishment is imperative. But, if there is a question of seeking forgiveness, the state cannot offer it without the consent of the victim's family. In other words, Quran precludes committing a crime thinking that forgiveness can always be got later on.
TNS: In our country, the state allows forgiveness if the victim's family has no issues. Comment.
JAG: Again, it's against the principles of Quran.
TNS: But, we also find that Muslim countries such as Uzbekistan have abolished capital punishment.
JAG: Well, this way you are depriving the society of the balance that Allah wants us to maintain. It's a human folly that man tries to decide things for which he does not have the required logical basis. So, he is always wavering -- from one extreme to another. Allah gave 'Shariah' in affairs where man was handicapped to decide things. In deciding the amount of punishment to be given to a criminal, 10 different people are likely to come up with 10 entirely different things. So, whose word will be law?
TNS: What importance does 'Fiqah' hold in this issue?
JAG: 'Fiqah' is a human affair and, like all human affairs, it is affected by circumstances. That is why, whatever law was made by Islamic jurists had flaws in it. 'Shariah' is the given.
TNS: Islam also speaks of 'an eye for an eye' and so on. Is it to maintain a kind of a proportionality?
JAG: It's up to the victim to demand this sort of a punishment. 'Qisaas' means that Allah gives you this right and also wants to teach the offender the importance of human life and human body parts.
TNS: What would you say about the concept of 'wali' in our society? There have been cases where, for instance, a man killed his daughter. He held his son guilty while declaring himself as the 'wali' and ordered forgiveness for his son. Don't such things point to lacunas in our judicial system?
JAG: That points to flaws in our judicial system. Here, if somebody has been wronged, it is least likely that he will want to take the matter to the court, because of the various hassles involved.
In my view, the fault with our existing judicial system is that it fails to consider the conditions/circumstances in which the crime was committed.
The News on Sunday: What is the stance of the anti-capitalist punishment lobby? Does it oppose the punishment in principle as a moral, human rights issue, or on grounds of efficacy, to pre-empt any miscarriage of justice?
Hina Jilani: Human rights are always based on a principle that has already been recognised by a community of states. Human rights are not up there in the air.
To this day there is no consensus in the human rights world on the death penalty. The United Nations has not so far said anything that death penalty should be ultimately abrogated. There is the international covenant on civil and political rights which talks about the right to life. As originally drafted, the covenant does not ban death penalty. More recently, a protocol has been added to this covenant but it is optional. This means that all the states which are members of the UN are not bound to outlaw the death penalty.
So let's be very clear. In terms of imposition or enforcement, no such principle exists at present which precisely prohibits the death penalty. But, again, there's an optional protocol.
TNS: So what prompted the move to create conditions wherein the prohibition of death penalty is universally adopted?
HJ: It is not based on someone else's notion of what human rights should be. Yes, there is the belief that death sentence or capital punishment is cruel and degrading. But beyond that there is also the view that death penalty has no efficacy.
I think the position of the human rights has been grossly misunderstood. The foremost consideration of the human rights community is always justice, an opposition to impunity from crime and human rights violations. Therefore, our effort to impose a universal ban on death penalty has something to do with this link between justice and the capital punishment. Justice means that if a crime is committed, there should be a proper complaint and investigation followed by prosecution. It is not the right of the victim['s family] to get the punishment he wants. That is for the courts to decide. Even now, except for blasphemy, there is no mandatory death sentence. So how can a person say that if there is no death penalty, there is no justice.
If we thought that death penalty was helpful in attaining justice or achieving elimination of impunity, we would have no objection apart from the fact that we would think it's inhuman.
TNS: Could you explain it further?
HJ: You see, the reason why we have arrived at the conclusion that death penalty has no link with justice is: first, because it is not seen as a deterrent. For centuries, the punishment for murder is death sentence. It is not that Pakistan has not implemented the death penalty. As a matter of fact, Pakistan is amongst the countries with the highest execution rate. But cases of murder did not decrease.
Secondly, Pakistan changed its law and brought the Qisas and Diyat Ordinance according to which the heirs of the victim can forgive the criminal in case of death sentence. If you look at the statistics, majority of death sentences have resulted in total release of the person after the payment of 'diyat' or commutation of death sentence into life imprisonment and that, too, on court orders. The victim's family always forgives after taking the compensation money.
So, death penalty does not indicate the satisfaction of the victims' family because that has been changed by the (Qisas and Diyat) Law.
Thirdly, it is a penalty that closes all avenues of dealing with any potential evidence coming to light later on that could establish the person's innocence. In a flawed judicial system, this is an important consideration. If you convict a person who is in jail and you realise that the punishment was a mistake, the possibility of correction is still there. If you kill him, no correction possible.
On balance, we conclude that the drawbacks of death penalty outweigh its benefits. Of course, the possibility of harm and the benefit in the case of no death sentence is accrued by the killer and not the victim. But we have earlier seen that it has no significant benefit for the victim either.
Therefore, logically speaking, we conclude that there is no need for a death penalty.
TNS: Isn't that too soft an approach?
HJ: It is important to understand why we have taken this position. We are not soft-hearted fools. We do not want the criminals to flourish and evade justice. We want that sentences should be given as a deterrent. Imprisonment can be a big deterrent. Life sentence should mean life. Here they say 14 years which when calculated means 8 to 10 years of imprisonment. This is stupid. That is why people say this is not enough. We need to correct the imprisonment sentences to 25 years. And there should be no scope of parole unless genuine reformation has taken place.
I would add another argument to what I said earlier. A death sentence means that not only do you close all avenues for correcting injustice -- if it has occurred -- you actually close all avenues of reformation. A person can be reformed if given an opportunity, otherwise you can keep him in jail for 25 years. In many countries where there are no death sentences, life imprisonment means the entire life, unless the parole authorities determine that the person in question is not dangerous for the society.
One argument that I often get to hear is that in Saudi Arabia there is death sentence so there's no crime. My answer to this would be that in Sweden there is no death sentence and yet no crime. What is similar between the two situations is that whatever punishment is prescribed by the law, people are sure to get it. If this certainty is not there, no punishment can have the 'deterring' effect.
Here, justice is taken as an emotional issue. Justice means that your machinery -- which dispenses justice -- functions properly. People must understand that sentence only follows conviction.
TNS: What about the sense prevailing everywhere in the world that those who get death sentence are invariably disadvantaged and marginalised people?
HJ: But you have formalised this with the very Qisas and Diyat law. If you have money, you are safe; otherwise, you are hanged. In Pakistan, if there are 400 death sentences every year, you hope that 300-350 will be commuted by taking 'Diyat'.
As it is, the condemned prisoners stay in death cells for 10 years or so. Then you pressurise them to compromise. The government is also making an effort that a compromise is reached because it (the government) wants to avoid embarrassment -- on the international level -- by being a country with a high execution rate.
As a consequence, the period in the death cell is rising. The death cell population has increased tremendously. Where there should be one person there are almost seven to be found now.
The clerics lie to the people. They only tell them half the Quranic verse and not the other half that talks about forgiveness. If forgiveness is a better option, we should go for it.
TNS: Isn't it a contradiction that we should praise the Islamic concept of forgiveness but criticise the Diyat law?
HJ: We are not against the concept of forgiveness. But the way 'diyat' is enforced, it brings in the whole class issue. It privatises an offence which is against the society. It is the responsibility of the state to deal with this offence. By bringing in the Diyat law, we have privatised murder. We've taken the responsibility away from the state, we've taken away the power of pardon from the authorities. Instead, we have given the power in the hands of the victim['s family]. We are against this.
Even in a secular law, the possibility of forgiveness exists and rests with the authorities. The victim's family can request (the authorities) for forgiveness.
The point is that people should be better informed. Our voice does not properly reach out to the people. We should know how to articulate it better, how to tell the people that we want justice. We only feel that justice is not linked with death penalty and it has led to more harm than benefits.
TNS: The human rights argument against capital punishment recognises the right of the killer to live, but didn't he also deprive the victim of his right to live?
HJ: Yes, that's why we say he should be punished.
TNS: But how do we fix the punishment when Islam prescribes life for life?
HJ: You can debate this separately; this is not my problem. I have stated whatever I think best. Can we save some people from potential harm by abolishing the penalty? We thought we could. This is our very simple argument. What Islam says is relevant for people who want to impose religion as law. My conscience is not affected. Even if Islam made it mandatory, I'd argue it the same way. I may be on the wrong side, for which I would have to be sorry because I still believe in this religion. But, see, my central point of reference is not Islam. If I had to argue on religious grounds, I'd still say that Islam does not hold capital punishment as mandatory.
TNS: Javed Ghamidi says that death sentence is a better option than putting people in jail for 25 long, hard years.
HJ: This is exactly my point. If I commit a crime and I have a choice, I would prefer instant death.
I am not an emotional person. I am a practical and realistic person. I have told you why I am convinced about the anti-death penalty argument -- because I don't think it is benefiting anyone.
TNS: So you prefer life imprisonment as a 'better deterrent'?
HJ: Not only a deterrent but it also keeps the possibility of reformation open. You can send a person back to society as a useful member. Death penalty is an easy way for societies who do not want to take the responsibility of reforming the criminal. Reforming human beings is not easy; those societies that tried this, saw that this works well.
TNS: What do you have to say about the government's decision to put a hold on death penalty?
HJ: I think the government needs to study things a bit more. Things cannot change overnight. We have always made recommendations about putting an end to the death penalty and, till the time it is banned at least, a moratorium on it. But alongside we also suggest to the government to make a commission that will make a social and legal evaluation and then come to a decision. The commission's aim should be to reform the justice system.
In the meantime, a public debate can be started on the issue. In a democracy, you don't take decisions without a public debate. You don't say, "We do this!" You say, "We propose to do this!" and give people a chance to discuss the matter.
We will be unfortunate if people are still not convinced -- that is, after the debate -- but I am sure if there is a debate, people will at least have a better understanding of the issue.
TNS: Why do you think are people so sensitive about this particular punishment?
HJ: Ninety percent of us Pakistanis are Muslims and every 10 years one such issue rears its ugly head. The benefit is accrued by people who are politically marginalised. People do not vote for them unless they create such issues.
TNS: If it's a political issue, what do you make of the audience in a Geo TV show which said that they were in favour of capital punishment? Don't you think that the clerics' message that it is mandatory has reached the people more effectively than the contrary view?
HJ: I understood two things: One, that the cleric was misinforming the audience, and secondly, when you come in front of the camera, you are not analysing things, you are giving your emotive response. The woman who wanted justice was led into saying that she'll get justice by death penalty -- by the compere.
I don't think there is an opportunity yet, to come to a conclusion. You come to a conclusion only after the debate.
TNS: What if the human rights argument fails to impress the people?
HJ: We shall continue with our struggle. We have always picked up issues that were not very popular with the people. If we felt that what the people had thought was not right, we went for awareness campaigns.
We feel that if our message is powerful, the people will accept it; otherwise they won't.