DAILY TIMES Pakistan
Editorial: Abolition of death penalty
The cabinet of Prime Minister Yousaf Raza Gilani has approved a decision to commute the death sentence of 7,000 persons on the death row to life imprisonment, barring habitual criminals guilty of heinous crimes. On the occasion of the birthday anniversary of Ms Benazir Bhutto, Mr Gilani had announced that his government would make recommendations to President Pervez Musharraf to commute the death sentences of thousands of prisoners to life imprisonment as a birthday tribute to Ms Bhutto.
The move has aroused some opposition within the coalition government and among a section of the public, but it has been welcomed by a majority as the first step in the direction of abolishing the death sentence in line with the practise in many modern nation-states. The religious rejection from the clergy was spearheaded by JUI leader Maulana Fazlur Rehman who is opposed in principle to the power of the president of the republic to “forgive” a death sentence given under Islamic law. The reaction of the common man or the future “victims” of the decision is more related to Pakistan’s abysmal social conditions in which crime is rampant despite the deterrence of the death sentence.
People who have been aroused into bringing their opposition to the TV channels are those whose rivals have been sentenced to death recently by the courts. Their fear is that once taken out of death row and sent to prison for life, the killers would organise revenge attacks on them. One can, of course, argue with this angle, but the bottom line is that commutation goes against the instinct of revenge as justice, and that conditions surrounding the execution of law in Pakistan are not compatible with all the requirements of justice.
Those who favour a rationalisation of the laws often face despair when they discover that all reform of bad laws is considered heresy by those who trace them to divine origin. The reformists think that if such bad laws as diyat (blood money), rijm (stoning to death) and blasphemy remain on the statute books, it is better to abolish the death penalty to save innocent people from being unfairly killed. Then there are subtexts to the laws dubbed sharia that simply cry out for reform. One is the concept of the wali. A man kills his wife but is set free because he is the wali or protector of his (and his murdered wife’s) children. There is also the “Islamic way” of commuting or “forgiving” a death sentence. Under the law of diyat, the wali of the killed person can “forgive” the killer after receiving money from the killer’s family. There is therefore malpractice galore under a law that goes in favour of a rich and powerful killer who can force the family of the victim to take diyat and keep quiet. This is why most human rights organisations list the abolition of the death sentence in their charters.
The European Union has abolished the death sentence, but in America the states differ in practice. In the Third World, uniformly, the idea of abolition doesn’t find much support. Leaving aside the clergy in Pakistan — who would add more legal conditions to allow the state to kill through the doctrine of fitna — realistic legalists also hesitate before accepting the argument of the abolitionists. There are many objections, but the biggest is the abysmal condition of the prisons. When conditions of “free life” are nearly as tough as the one in prison, people don’t mind killing. Poor people can also start killing for money if it is only prison they get. Death alone is a deterrence for many.
The government has made a one-time gesture which might reprieve some persons wrongly sentenced to death. However, one must emphasise that such people are often not victims of miscarriage of justice but of the law under which the judge is helpless to award death. We refer to the Blasphemy Law where innocent people are hauled up before the court and made to suffer the death penalty without first being proved guilty in intent. This law is so badly framed that one wishes that its victims, usually members of our non-Muslim communities, could be saved through an abolition of the death penalty.
Maybe the time has not come yet to abolish the death penalty. Perhaps at some point in the future, Pakistan might be mentally more attuned to considering the matter. At this time, however, death has become cheap under laws that the various warlords calling themselves “Islamic soldiers” have imposed in parts of Pakistan. For example, the warlord of the Khyber, Mangal Bagh, suddenly the favourite of many as the army goes in to unseat him from his throne, has killed innocent people under “Islamic sharia”. Another warlord in Swat, Fazlullah, has beheaded innocent people also under allegedly “Islamic” inspiration.
The jury is out on the death sentence. The task is to first put in place a legal system that can actually obtain and then sustain the good results of abolishing the death penalty.