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Playing God

by Ejaz Haider
Pakistani troops on Jan. 7 outside a Multan jail where two Lashkar-e-Jhangvi members were executed. S. S. Mirza—AFP

Pakistani troops on Jan. 7 outside a Multan jail where two Lashkar-e-Jhangvi members were executed. S. S. Mirza—AFP

Pakistan should view capital punishment with the seriousness it deserves.

The death-sentence debate has reached Pakistan, which has over 8,000 death-row prisoners. No one outside rights organizations really knew or, frankly, cared much because despite the courts handing down death sentences, Pakistan had placed an informal moratorium on executions in 2008. That moratorium was lifted after the gruesome terrorist attack on Peshawar’s Army Public School last December. Since then Pakistan has executed 61 death-row inmates.

In recent days the debate has focused on the case of Shafqat Hussain, who was sentenced to death for kidnapping, raping, and then killing a 7-year-old. Those opposing Hussain’s hanging argue that his confession was extracted through torture and that he was merely 14 when he was arrested. Given the timeline, he was a minor when the antiterrorism court sentenced him. (Incidentally, the opponents also include those who reject the death sentence per se.)

Those supporting the sentence argue that Hussain was not a minor and that even if the antiterrorism court had convicted him wrongly, the verdict was upheld during the appeals process by both the Sindh High Court and the Supreme Court. Some also argue that even if he were a minor at the time of sentencing, in the event that he did commit the heinous crime of raping and killing a 7-year-old, he should be hanged.

In any case, pressure from social media and civil society organizations has forced the Ministry of Interior to stay Hussain’s execution until the fact about his age can be determined. Since then, however, the debate has taken a completely ad hominem, though not unexpected, turn. Some TV programs, while seeking to present evidence that Hussain was not a minor, have then gone on to castigate “NGOs” and the “liberal” sections of society clamoring against Hussain’s death sentence in particular and hangings in general as paid agents of the West. The argument is that these elements get funding from foreign donors and pursue—this is implied—an agenda that is against the interests of this country.

Not surprisingly, this line of (un)reasoning has introduced into the debate an element that takes away from the gravitas with which such an important issue must be handled and argued about.

Throughout the world, debate has raged and continues over the issue of capital punishment. There are weighty arguments on both sides. Going by statistics from Amnesty International, as of Dec. 31, 2013, 98 countries have abolished the death sentence for all crimes, seven have abolished it for ordinary crimes, and 35 have done so in practice. The total number of abolitionist states stands at 140. The retentionists number 58, including Pakistan, which hands down the death sentence for a range of crimes, not just for murder and acts of terrorism.

It should be clear, perhaps, that given the rising number of abolitionist states, any debate in Pakistan must take the issue with the serious concern it deserves. Also, and this being a matter of both fact (laws) and record (court verdicts), Pakistan, instead of narrowing the range of crimes begetting death sentence, has, over the years, broadened it. While there are a number of questions that can be raised on this score, there is a rather simple one that must be asked: Has broadening the scope of the death sentence served as a deterrent?

I do not have statistics at hand but it appears to me that this policy, far from reducing crimes for which courts are ready to hand down the death sentence, has, in fact, seen an increase in them. Such being the case, it should be obvious that were our governments interested in scientific thinking and policymaking, they would have tried to resolve this puzzle. That has not happened and is unlikely to any time soon.

Privately, of course, officials at various levels of the criminal-justice system do talk about it. From what I have gleaned from those conversations and the nuts-and-bolts information they provide, four points stand out.

One, we should reduce the number of crimes for which the death sentence is given. Two, our prosecutorial methods leave much to be desired. Three, we need to introduce new evidentiary methods. And four, while lower courts, including antiterrorism courts, are pretty quick with death sentences, the courts of appeal for the most part end up overturning those verdicts.

Put together, it becomes clear that we are sending too many cases to antiterrorism courts, that we have been regularly adding to the list of crimes for which the death sentence can be awarded, that we have failed to narrow down the definition of terrorism to the point where it has not only become ineffective but also a joke (Exhibit A: the Antiterrorism Act of 1997), that the police, lacking in modern investigation techniques, resort to torture for confessions that have no legal standing, and that the courts, given poor prosecution, are at a loss about what to do. Result: they either end up being quick and profligate with the death sentence or let the accused go.

Let me confess that this is a cursory and inexpert view of the situation. Those who deal with the criminal-justice system have much more to say about the intricacies of, as well as the chaos in, the system. Yet, it should be evident even from this inexpert view that this is not a situation which merits more death verdicts. There are too many factors here—amorphous, indeterminate, and liable to be exploited in favor of the strong and against the weak—for us to take a simplistic view of the issue in favor of the death penalty.

Equally, those who debate against the death sentence per se need to take a break from their absolutism and begin to contextualize the problem. While the argument that the criminal-justice system is dysfunctional works against the death penalty, the issue of abolition is not just a legal problem. As the history of the debate in other places shows, it is also grounded in socioeconomic and normative factors that evolve over years. Put another way, what will happen if the government were to abolish the death sentence in cases of murder and people were to start taking matters in their own hands? Or let’s put it this way: until we are convinced that lex talionis is arcane, abolishing the death penalty for premeditated murder, for instance, can only have negative consequences.

We have to avoid pendulum swings either in favor of or against the death penalty. While problems with the criminal-justice system must make us wary of the high number of crimes for which we officially hand down death sentences and an equally high number of death verdicts, the absence of a normative rejection of the death sentence must force us to contextualize the issue even as we must sit down to review the list of crimes for which we are happy to hang people by the neck until they die.

At the same time, since we are not about to abolish the death sentence, in addition to limiting the number of crimes for which we will allow the death penalty, we must very seriously focus on reforming the justice system. Our current state is both unviable and unenviable. We are not interested in reforming the laws and the system, but we want to hang more and more people, expecting that these hangings will somehow cleanse us of elements that needed to be—or need to be—eliminated from our midst.

That has not happened and, going by statistics in other parts of the world, is not going to happen here. I remain convinced that we do not have a solid basis for asserting or expecting that our current policy will have a deterrent effect. These issues can neither be debated nor the results of any such policy found through a snapshot view. We must have a longitudinal design both for an informed debate and to monitor and tweak a policy.

During hard times people tend to take a binary view in any situation. Paradoxically, those are the very moments when one must seek to explore complexities. That’s exactly what happened in Athens at a moment during the Peloponnesian war when Athens debated the fate of Mytilene. That debate can be found in the pages of Thucydides. Reading it will serve us well.

For myself, I am not an abolitionist. But I am alive to what can, and does, happen here and that makes me wary of the death penalty. In the case of Hussain, if it can be found that he was not a minor and that his confession was not extracted through torture, then, all things being equal, he must be hanged. Equally, there should be a review of death verdicts in general so that we do not end up killing people who should have rather lived. After all, when we condemn someone to death, we play God for that moment. And playing that role cannot be taken lightly.

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