death penalty

The love of hanging: There’s one thing that India and Pakistan agree on

Last month, Pakistan joined India, Afghanistan, Bangladesh and the Maldives in rejecting a global moratorium on the death penalty at the UN.

Pakistan chose to vote against the recent resolution in the United Nations General Assembly that had called for a global moratorium on the death penalty and was adopted by the majority of member states.

The gist of this resolution has been adopted by the UN General Assembly every two years since 2007. The resolution adopted on December 19, 2016, was backed by 117 member states, while 40 voted against it and 31 abstained. As against the voting pattern in 2014, the new supporters of the moratorium call were Guinea, Malawi, Solomon Islands, Sri Lanka and Swaziland.

South Asia maintained its fondness for the death penalty as Pakistan joined Afghanistan, Bangladesh, India and Maldives in rejecting a universal moratorium, while Bhutan, Nepal and Sri Lanka voted in favour.

Pakistani authorities have an aversion to any scrutiny of the rationale for retaining the death penalty.

Those who defend the death penalty as a principle enjoined by Islam may look at the division among the Muslim states (the category includes all members of the Organisation of Islamic Cooperation, an association of 57 Islamic states).

How Muslim states voted

Those voting in favour of a moratorium included: Albania, Algeria, Azerbaijan, Benin, Bosnia Herzegovina, Burkina Faso, Chad, Côte d’Ivoire, Eritrea, Gabon, Guinea, Guinea Bissau, Kazakh­stan, Kyrgyzstan, Mali, Mozambique, Sierra Leone, Somalia, Suriname, Togo, Tajikistan, Tunisia, Turkmenistan and Uzbekistan.

Those who abstained included: Bahrain, Came­roon, Comoros, Djibouti, Indonesia, Jordan, Lebanon, Mauritania, Morocco, Niger, Nigeria, Uganda and the United Arab Emirates.

The Muslim states that voted against the resolution were: Afghanistan, Bangladesh, Brunei, Egypt, Guyana, Iran, Iraq, Kuwait, Libya, Malaysia, Maldives, Oman, Pakistan, Qatar, Saudi Arabia, Sudan, Syria and Yemen.

We find that 24 of the Organisation of Islamic Cooperation’s 57 member states voted in favour of the moratorium, while 13 abstained and only 18 voted against. In other words, Pakistan is in the minority group of 18 Organisation of Islamic Cooperation member countries that opposes the moratorium.

It is for Pakistan’s government and its Islamic scholars to ponder as to why the majority of the Organisation of Islamic Cooperation members do not find any faith-based bar to the acceptance of a moratorium on capital punishment. They may also consider the possibility that, as in the case of some international treaties, reservations expressed in the name of religion are in fact dictated by the culture or custom of the countries concerned.

What is more distressing for human rights activists, abolitionist groups and promoters of humanitarian laws in Pakistan is the authorities’ aversion to any scrutiny of the rationale for their love of the death penalty regime.

What one hears of references to the death penalty during the Universal Periodic Review [a process in which the human rights records of all 193 UN member states are reviewed periodically] or at talks with the European Union on the GSP+ [Generalised Scheme of Preferences] status is not the result of any serious deliberation. Indeed, one doubts if any discussion on the subject has ever taken place in Pakistan. That there is an urgent need for such a discussion can easily be established.

The recent cases in which the Supreme Court acquitted two individuals who had already been executed, or ordered the release of persons who had spent long years on death row, have strengthened the call for abolition of the death penalty on the ground of high risk of miscarriage of justice. A number of other issues that have surfaced over the past many years also need to be addressed. These are:

• The view that the death sentence is not a deterrent to crime has not been challenged nor has the view that hangings brutalise society.

• The Qisas [retribution] law has prevented the Pakistan president from pardoning death convicts or commuting their sentence although his power to do so under Article 45 of the Constitution remains intact. How does one explain the fact that the Army chief can pardon a person awarded the death sentence by a military court while the president cannot do so?

• The scholars agree that Islam prescribes the death penalty in only two instances. How does the state of Pakistan defend the fact that capital punishment is prescribed for 27 offences in the name of religion?

• The judiciary has pointed out the problems it faces in cases in which capital punishment is mandatory if the evidence on record warrants a lesser penalty.

• The possibility of a minor or a mentally challenged person being executed keeps cropping up every now and then.

The case in India

One ventures to suggest a look at the Indian response to the issue of the death penalty in view of our shared legal tradition.

The Law Commission of India recommended in August 2015, vide its Report No 262, that “the death penalty be abolished for all crimes other than terrorism-related offences and waging war”. The commission agreed to retain capital punishment for certain offences in view of a plea by parliamentarians that “abolition of death penalty for terrorism-related offences and waging war will affect national security”, although in the commission’s view “there is no valid penological justification for treating terrorism differently from other crimes”.

The commission noted the significant steps taken during India’s decades-long efforts to restrict the use of the death penalty: removal of the requirement of giving special reasons for awarding life imprisonment instead of death (1955); introduction of the requirement of imposing the death penalty (1973); and the Supreme Court’s decision that the death penalty should be restricted to the rarest of rare cases (1980). The conclusion reached by the commission was:

“Informed also by the expanded and deepened contents and horizons of the right to life and strengthened due process requirements in the interactions between the state and the individual, prevailing standards of constitutional morality and human dignity, the commission feels that time has come for India to move towards abolition of the death penalty.”

During the latest debate in the UN General Assembly, however, India again voted against the resolution calling for a moratorium although it could have shown some respect for the Law Commission’s recommendation by abstaining. Which only goes to show that in developing countries state policies are often determined by authorities that are too timid to disturb the status quo or too proud of their conservatism to heed the counsel of experts who are conscious of the call of the age.

This article first appeared on Dawn.

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