Slow march to the gallows : Death penalty in Pakistan

08/03/2007
Report

In early 2006, the HRCP and the FIDH jointly organised a factfinding
mission on the application of death penalty in
Pakistan. The findings of the mission constitute the basis of
the present report.

Pakistan ranks among the countries in the world which issue
the most death sentences: currently, over 7,400 prisoners are
lingering on death row. In recent years, Pakistan has
witnessed a significant increase in charges carrying capital
punishment, in convictions to death, as well as in executions.
The HRCP and FIDH find that the application of death penalty
in Pakistan falls far below international standards. In
particular, they find that, given the very serious defects of the
law itself, of the administration of justice, of the police
service, the chronic corruption and the cultural prejudices
affecting women and religious minorities, capital punishment
in Pakistan is discriminatory and unjust, and allows for a high
probability of miscarriages of justice, which is wholly
unacceptable in any civilised society, but even more so when
the punishment is irreversible. At every step, from arrest to
trial to execution, the safeguards against miscarriage of
justice are weak or non-existent, and the possibility that
innocents have been or will be executed remains frighteningly
high.

The provisions of the law themselves leave much to be
desired: laws are made on a ad hoc basis rather than on
systematic, rational and just grounds, leading to a haphazard
and anarchic lawmaking process which has witnessed a
preposterous inflation of charges carrying death penalty in
recent years, without contributing to the rule of law. While at
the time of independence, only 2 charges carried death
penalty, today, 27 different charges do so, including
blasphemy, stripping a woman of her clothes in public and
sabotage of the railway system. This goes far beyond the
scope of the expression "most serious crimes" for which
death penalty should be reserved under international law,
and which is interpreted as meaning that death penalty
should not be awarded for crimes beyond intentional crimes
with lethal or other extremely grave consequences. Several
charges carry mandatory death penalty, such as blasphemy.
The HRCP and FIDH note that not only has the massive
application of death penalty not strengthened the rule of law,
but its application has, much on the contrary, weakened it
substantially. This affects all citizens of the country, but even
more so those who face a judicial procedure. The lack of
consistency of Pakistani courts and the historical weakness of
the judiciary, submissive to the executive as well as plagued
with systemic corruption, gravely jeopardises the possibility of
a fair trial. Furthermore, the very low salaries of the judges
exposes them to pressure and bias – both in "political" cases,
or in cases where one of the parties is wealthy. The by now
routine habit of the executive "rewarding" or "punishing"
compliant or resistant judges has seriously undermined the
independence of the judiciary.
Pakistan’s special courts are even more prone to such
injustices, with overall unacceptably low safeguards of
constitutional rights for defendants and of guarantees of a
fair trial (e.g. anti-terrorist courts).

The recent increase in convictions to death has to be viewed
in the context of a 2003 Supreme Court ruling which stated
that, in cases of murder, "the normal penalty of death should
be awarded and leniency in any case should not be shown,
except where strong mitigating circumstances for lesser
sentence could be gathered" (underline ours). Sentences
other than capital punishment are consequently handed only
exceptionally in cases of murder. This ruling followed, and
confirmed, a string of other rulings which also stated that
capital punishment should be the "normal penalty" for
murder.

Rulings by the Federal Shari’at Court (FSC) and the Supreme
Court have limited the possibilities of pardon by the President,
in spite of the constitutional provision that grants him the
right to do so. The FSC ruled that, according to Islamic law, the
legal heirs of a murder victim are the sole persons entitled to
grant mercy to the culprit.
The Qisas and Diyat Ordinance has had an adverse impact on
the rule of law, on the administration of justice, and on the
application of death penalty. By allowing for the possibility to
pay "blood money" to relatives of the victim in lieu of
execution, the Ordinance has paved the way to a nefarious
privatisation of justice, as the State withdraws from one of its
main responsibilities, since it no longer is the guardian of the
rule of law through the exercise of justice. In Pakistan, crimes
are less considered as offences against the State than as
disputes between individuals or families. The life of an
individual hinges not on the norms of justice but on the
persuasive powers of his relatives. When the heirs forgive a
Slow march to the gallows.

murderer, he is usually acquitted and immediately freed: in
practice, blood money means immediate acquittal – and
impunity. It has to be said, however, that such impunity is
essentially due to the judicial practice: the State retains the
possibility to punish the criminals – albeit not to capital
punishment.
The possibility of compromise has de facto lowered the
standards of evidence required for conviction. In addition,
coercion appears to be routinely used to force the legal heirs
to accept compromise. There is no transparent and objective
procedure to ensure that the compromise is entered freely,
willingly, and without intimidation. Such coercion has become
routine practice, notably by local law enforcement agencies,
who have an interest in a quick settlement, in order to
decrease their caseload, are often corrupt and would be paid
a bribe to ensure the victim’s family agrees to the
compromise. It is indeed very often the police itself which
puts pressure on the complainants to enter a compromise.
In 2000, the Juvenile Justice System Ordinance was
promulgated, which prohibited the application of death
penalty to persons under 18 years of age, and provided for
juvenile courts. In 2004, however, a judgment by the High
Court in Lahore revoked it. The appeal before the Supreme
Court is still pending and meanwhile, the JJSO has been
temporarily reinstated by the Supreme Court. However,
several juveniles are presently on death row, in blatant
violation of international human rights standards.
Capital punishment in Pakistan is also adversely affected by the
weakness of the police service and the lack of independence of
the judiciary. Convictions to capital punishment often occur
after botched police investigations and unfair trials, where
possibilities of corruption, coercion, intimidation of witnesses
and of police officials, and political or social pressure, among
others, happen at every stage, thus allowing for unacceptably
high probabilities of miscarriage of justice.
The police in Pakistan is still ruled by a culture of violence,
intimidation and coercion; torture is routinely used to extract
information or confessions from suspects, and illegal
detentions are common. Extrajudicial killings happen
frequently. In criminal cases, there is a strong tradition to rely
much more on oral evidence than on material evidence
(compounded by the serious backwardness of forensic
technique and investigation, and the lack of sufficient number
of forensic laboratories), which greatly increases the pressure
on witnesses, as well as the possibility of testimonies dictated
by local or family politics. It is very difficult to have
independent witnesses testify, for fear of retaliation against
their family, or because of fear of getting involved with the
authorities and the police. Coercion or corruption of witnesses
can stem from the police, from the powerful local families,
from the culprit’s relatives, or even from the victim’s party.
This jeopardises the right to a fair trial. There is no witness
protection programme in Pakistan.
More generally, the generally hierarchical and unfair social
structure inevitably skews police investigations and judicial
proceedings in favour of the wealthy and influential;
discrimination pervades the whole system. The Qisas and
Diyat Ordinance has institutionalised discrimination against
poorer defendants; one is virtually certain to get away with
murder, provided one is rich enough to meet the cost of the
compensation demanded by the heirs of the victim. Poorer
defendants are also victims of the paucity of legal aid: there
is no proper provision for effective legal assistance at the
state expense for those who can not afford it on their own.
This adds to an already skewed police and judicial process,
where the powerful and wealthy can easily thwart a procedure
in their favour. Sadly, citizens are not equal before the law in
Pakistan.
Discrimination is not limited to social and financial grounds. It
appears that although there are far fewer female condemned
prisoners than male, the punishment meted out will be
harsher, and the judges, overall less inclined to grant them
mitigating circumstances. The authors of "honour killings" of
women are still considered leniently by the courts.
The progressive Islamisation of the State has translated into
an institutionalisation of religious discrimination. In particular,
the laws of blasphemy, which carry mandatory death penalty
has been used against NGOs, minorities, academics and
journalists sometimes after grossly unfair trials. In 2005, two
persons have been convicted to death on the charge of
blasphemy.

The situation in tribal areas is no better, even though the legal
regime ruling these areas does not provide for death penalty:
so-called tribal "trials", called by the local jirgas, routinely
provide for unlawful executions of defendants. Reports of
public executions in tribal areas appear increasingly
frequently in the press. The lack of judicial guarantees, of
defence, of appeals, combined to deep-rooted cultural
prejudice, particularly on "honour", make such executions
singularly inequitable. These "condemned" individuals were
denied even the minimal legal safeguards available to
persons accused of crimes in the tribal areas of Pakistan.
Slow march to the gallows.

Finally, the HRCP and FIDH note that, contrary to the much
vaunted and much over-rated argument of deterrence, the
systematic and generalised application of death penalty has
not led to an improvement of the situation of law and order in
the country. It is ironical that while Pakistan has one of the
highest rates of conviction to capital punishment in the world,
the situation of law and order remains problematic.
Systematic condemnation to death certainly does not appear
to be the solution to the problem. The "iron fist" mentioned by
several judges and officials turns out to be discriminatory,
unfair – and utterly inefficient.

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