By Zubeida Mustafa

PAKISTAN’S leadership is in a dilemma. Should it continue the moratorium on the execution of prisoners on death row that the PPP government had enforced since June 2008?

Soon after assuming office in June, Prime Minister Nawaz Sharif was inclined to revive capital punishment presumably to demonstrate his commitment to fighting terrorism in the country. He naively believes that hanging criminals reduces crime.

He is now wavering. Has the outcry from human rights bodies and anti-death penalty activists shaken his resolve? Or did he change his mind when the Taliban threatened a bloodbath if two members of the Lashkar-i-Jhangvi in Sukkur jail were hanged, as scheduled, in August?

Whatever the case, President Asif Ali Zardari managed to persuade the prime minister in their meeting last month to let the status quo continue until Sept 9 when the new president takes over.

The PML-N’s stature will go up considerably if it were to adopt a principled position on capital punishment. The fact is that the international trend is to do away with the death penalty on grounds of justice, fair play and a reformatory approach to punishment. It has now widely been established that hanging murderers has not lowered crime rates in any society.

Much to my dismay, many staunch abolitionists are now becoming sceptical as the deteriorating law and order situation is causing emotions to sway their judgement. It is vindictiveness and fear and not any consideration of a well-thought out anti-terrorism strategy that is guiding their views. This approach is fraught with danger. If revenge were the main determinant of policies, Pakistan’s society that is already falling apart will slide towards self-destruction even faster.

Hence it is time we reminded ourselves why we stand for the abolition of capital punishment. For me, the most important reason, apart from many others, why no one should be hanged is the flawed justice system this country has. There is no way that one can be certain if a miscarriage of justice has not taken place in the case of a sentenced prisoner.

A recent report by the Democratic Commission for Human Development identified the flaws in the criminal justice system under which insufficient investigation, torture of prisoners to extract confession and corruption militate against a fair trial. In many cases the innocent are indicted.

Worst of all, they are generally underprivileged and cannot hire good lawyers. They have to make do with state-sponsored legal aid — comprising mostly incompetent or irresponsible lawyers. Their case is lost even before it has begun.

This is what happened to Zulfiqar Ali, popularly called doctor, a title he earned when he did his MD in herbal medicine from the Allama Iqbal University while in prison. In his 15-year confinement he has upgraded his own education and also imparted knowledge to fellow prisoners. According to him, his side of the story has not been heard by the courts.

He says he was not provided the legal aid that was his right. The counsel who was to defend him did not meet him even once and Zulfiqar was declared guilty of the murder that he claims he committed accidentally in self-defence when he was attacked. He then appealed for a court review, but again he was let down by the court-appointed lawyer.

His statement speaks volumes for the state of the judiciary. “Since a defence counsel was needed to fulfil a legal formality, the judges, so it was reported to me, enlisted peremptorily one of the lawyers at that time present in court, who was clueless about my case.” Would that be considered a fair trial? Is human life so cheap?

Another victim of our systemic failure is Shafqat Hussain who was to be hanged on Aug 25 for a crime he apparently committed when he was 14, that is when he was a minor. He has already spent 16 years in jail. I do not know the details of the case. But being under 18 years of age it is inconceivable he could be held deserving of a death sentence.

Under Article 40 of the International Convention on the Rights of the Child of which Pakistan is a signatory, state parties are required to establish laws and institutions specifically applicable to children alleged to have infringed the penal law. Isn’t Shafqat’s case also one of miscarriage of justice?

We have no way of knowing how many of the over 7,000 prisoners on death row in Pakistan have received a fair trial. It would be the greatest of injustice even if one person is wrongly hanged because our law enforcement and defence agencies are incapable of checking violence and feel terrorism can be countered only by violence.

The government needs to adopt a clear-cut strategy that is underpinned by a sensible political approach. We know that the Taliban are not the only killers. As the home minister said political parties are also resorting to terrorism quite freely.

Mr Nawaz Sharif must think over his stance on the death penalty carefully. He will have to pronounce his party’s position by Sept 9. What is needed is a long-term approach. It makes no sense to require thousands to go through a nerve-racking procedural cycle of having an execution date fixed, followed by a stay order in the wake of which comes an announcement of a new execution date.

Source: Dawn