On the eve of 17th December, as the country conjointly huddled together to delve and process the events of the preceding day of the Peshawar attack, state officials decided to avidly take matters into hand with an invigorated attempt to heal a nation reeling from the catastrophe of the first attack on the young blood of the land. In an effort to tackle the widespread horror and 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 – to set a precedent that while Shikarpur may have been a stunt of prevarication on part of the state, Peshawar was branded on universal consciousness as a wound here to stay.
And justice must always be meted out in accordance with the magnanimity.
Thus, the decision on part of the Nawaz government to lift the temporary moratorium on death penalties in Pakistan in place since the preceding Zardari-led PPP government, was met at the time with mass approval of a nation seeped with vengeful sentiments, politicians and judiciary in an unseeming united bid for an immediate crackdown on terror suspects and ‘terror-related cases’ only. And earlier this year, hangings were initiated with Dr Usman the mind behind the GHQ attack, Arshad Mehmood convicted for the murder plot against former President Musharraf and accomplices and thus served as a morale-booster for a nation thirsty for respite. However , the government’s decision in March to widen the scope of capital offences within the scope of the punishment of the death penalty took an alarming turn and so, began the plight of the judicial system of Pakistan.
Unfortunately, it has been the execution of over 152 prisoners in Pakistan to date since the lifting of the death penalty moratorium that has brought to the surface new, 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? That is consistent with the Constitution’s and the individual’s right to guarantee of due process? A right adorned by the Supreme Court itself: “Equal Justice under Law”? Who in the state rampant with self-acclaimed lawlessness and morbid potpourri of political and judicial corruptions ensures that the criminal doesn’t escape the clutches of our justice system but that the vulnerable i.e. mentally ill and juveniles caught in the midst are not unduly punished with proceedings and trials that they may not be able to fully comprehend, their rights unable to be enforced? Evidence of recent executions and their case studies show that they have not, and cannot.
There are over 8000 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 by hanging. The moratorium extending over an extended period of time had initially created the hope of increased life expectancy but only shortly so.
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 that they would, for all practical purposes, be punished with death after spending a period in custody which was more than a full term of imprisonment for life 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 who may be placed in such a predicament not of their own making and still under trial for it, the least that the Supreme Court could do for them in such unfortunate situations was to exercise its due discretion in the matter of their sentences and reduce their death sentences to imprisonment for life on not only the basis of stark facts and circumstances of the case but keeping the standard principle of expectancy of life in watch.
Many a sight of Pakistani prisons are witness 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 per say of monumental systemic failure of the system which must be acknowledged and critiqued and should deliver and extend the accuseds some respite or reparation.
Akin to this is the ghastly state of affairs under the unfettered powers of Pakistan’s police which notoriously violates the basic principles of human dignity of the prisoners, enforcing them to torture in order to secure coerced confessions which are often the only ‘evidence’ licensing prisoners to death. Thus, these marks of torture and abuse are apathetically ignored by our courts as a ‘procedural characteristic’. A norm of the ways of the Law reiterated of being unofficially recognized as a norm of the criminal justice system. The torture thus remains neither officially investigated, condoned nor acknowledged. While money often plays a big part in salvaging the have’s, it is left to the plight of the have not’s , the illiterate and the socially marginalized that bear the brunt of facing all mechanisms of police torture (laathi, falaka (whipping of the foot with rods or cane), inverse strapped ( being hung from hooks and punched and kicked repeatedly during investigation) , ‘strappada’, extorted nails etc ; common and rampant for prisoners at the mercy of a crude police, leaving them weak, hopeless and submissive at the hands of shody and inadequate defense counsels and ultimately into covert trials and proceedings.
Abdul Basit is a death row prisoner posing a unique case before Supreme Court. After bouts of indelible pain and headaches of an unknown nature when eventually found contracted with tuberculosis as a result of lack of treatment and prolonged symptoms going unchecked. In a short span of 13 months, Abdul Basit went into a coma for 3 weeks, recovering only to be paralyzed shortly from the waist down due to spinal atrophy. It is a fact that he may never walk again and has been disabled permanently and despite being advised by medical boards who deemed jails as only a deteriorating factor for his already vulnerable condition, Abdul Basit continues to languish in jails, has been denied a wheelchair and suffers great difficulty and humiliation when using the toilet, his bedsores and body aches taking a toll on him. It is in these undignified, inhumane circumstances that Abdul Basit is now facing a death penalty issued this Wednesday on the 29th of July, his case now granted a stay for 15 days. However, time is of the essence and it is within the span of these days, that the Supreme Court must take into consideration and due compassion of 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 8000 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 but infallibly is evidence to the stark ignorance and brutality exhibited by the justice system when catering to the most vulnerable prisoners of our society as they too are damned to the gallows.
To prosecute a lunatic or a mentally unsound person in Pakistan, most abused and easily framed in criminal proceedings 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, on paper 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, since the government resumed and widened the scope of a merciless execution spree which included cases of convictions of murder. Thus, 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 Muneer was soon unable to recognize family members with nil 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, there is no concrete evidence 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 infact serve as greater deterrence mechanism than life imprisonment , so the state rhetoric that defends its 17th December policy as a method of crime reduction and stabilizing the law and order situation of the country by eradicating anti-state elements, falls flat.
Additionally, while many a country has sought out executions as capital punishment, the USA , Saudia 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 and persons under the state-appointed age of 18 years. 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 compromised blatantly 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 in eliminating crime and to quell internal instability on an ill-conceived premise of dealing with the real pariahs of unemployment, poverty and economic instability plaguing the nation , are 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 or even fear-instiller for those willing to already sacrifice their lives to their causes.
Thus, it may be time to acknowledge that Pakistan’s judicial system , now clogged and ineffective more than ever as it attempts to do away with the thousands of new cases that now clog its machinery, is essentially in itself in dire need of a reform make-over. This system inspires little hope with excruciating face-off of defense lawyers fighting for the damned of the society with indifferent dispensers of justice, zero to nil judicial accountability and a justice system where justice is not dealt with in accordance to the very law of the land.
Perhaps, it is time for the government to look inwards into the crux of the dismal state of affairs of our state machinery particularly the role of the judicial system in catering to cases according to fact and merit rather than influence before it can rightfully claim its exclusive institutional domain. Its high time that procedural gimmicks in our lower and higher tier courts are reformed before the death penalty conundrum paves way for several future series of mass executions of the innocents, mentally ill and the undefended alike.