Does the death penalty target criminals or the poor?

Published: April 9, 2016

The death penalty in Pakistan is but a continuum of the state’s war on the poor, with one difference. Many people support the death penalty in Pakistan. PHOTO: INP

A damning report places Pakistan as third in the list of countries where the most number of executions took place in 2015, after China and Iran and before Saudi Arabia and the United States. In other compelling statistics, in 2014, the Global Slavery Index, Pakistan ranked third in a list of 167 countries where the problem of human slavery is most severe.

In 2012, we had the most number of people (28 million) affected by war and conflict. Along with other South Asian countries, Pakistan ranks high in hunger and malnutrition statistics, with about 41 million people undernourished in the period 2014-16, a whopping 22 per cent of the population.

The state is responsible for much of the violence perpetrated upon its citizens whether it is oblivion to a pattern of sustained and systematic hunger, condoning violence against women because of inadequate preventive and responsive measures, or perpetuating abysmal labour protections for vulnerable workers.

The death penalty is yet another form of state enforced violence. It appears as the particularly cruel and whimsical working of a state that has abdicated its social responsibility toward its citizens, and yet wants to maintain the illusion of law and order through swift and draconian, though flawed, justice.

Ironically, most of the people susceptible to execution in Pakistan’s criminal justice system are indigent defendants who cannot afford competent lawyers or settle their cases through the (infamous) Qisas and Diyat laws – and caught in the system in the first place as opposed to powerful killers who escape unscathed.

It can be safely assumed that the state is at war with the poor. One only has to look at the massive (and often concealed) crackdowns on the working-poor protesting evictions or labour conditions to confirm this. The state is also not shy of using its massive and prejudicial anti-terrorism legislative arsenal against poor labourers and residents of katchi abaadis when they stand up against illegal evictions and unfair labour practices and threaten real estate expansionism and corporate impunity. They are then slammed with FIR’s with trumped up charges of terrorism or penal code violations.

The death penalty in Pakistan is but a continuum of the state’s war on the poor, with one difference – many people support the death penalty in Pakistan; but most people will not support water jets and lathi (baton) charges against the poor. Most Pakistanis will not approve of brutal violence against and the criminalisation of people fighting elite housing projects of Bahria Town to preserve their two room homes, or school teachers demanding salaries.

People know these are not the rifle wielding terrorists. These are the poor and the terrorised.

This is probably why there is a tangible media control in the ways in which poverty, hunger, housing and labour woes are presented. They are either obliterated from discourse, presented as emotional fillers rather than within the context of a violent neo-liberal political economy that disrupts the lives of the poor, or distorted within a larger liberal narrative of necessary economic development.

But coming back to the death penalty.

With its emotive appeal for instant justice for murderers and terrorists, the death penalty finds support it seems, in a large section of society. Never mind that some of the executed were juveniles at the time of the crime and that most were not terrorists, and the country is not necessarily safer because the murderer of Salman Taseer is dead. Never mind that the Human Rights Conventions we have ratified and even Islamic jurisprudence which we often aspire to condemn the death penalty, or prescribe due process parameters for it, or allow for discretion and forgiveness, are ignored.

It is a great indicator of (false) progress of a pro-active and concerned government. Children in Sindh, Balochistan, South Punjab and FATA will continue to die of hunger, but at least people are supposedly safer in their homes with more than 300 people hanged in 2015.

The US, with its notorious legacy of Guantanamo, impunity for torture, imperialist wars are no bastion of human rights; it was among the top five countries that executed the most number of people last year. However, compared to Pakistan’s 300 plus figures for 2015, the US executed 28 people. Nineteen states have abolished the death penalty, and some that have yet to outlaw it, have imposed moratoriums.

Last year, Nebraska’s legislature voted to abolish the death penalty. In disappointing contrast, Missouri executed Cecil Clayton, a 74-year-old man diagnosed with dementia. While in Pakistan, there is a little publicised debate around or litigation against the cruel and barbaric nature of the method of execution – hanging – in the US, there was a robust litigation around lethal injection protocols. In Glossip v Gross, while the Supreme Court allowed the use of a drug used in the deadly injection, two dissenting judges found that the death penalty is probably unconstitutional, unreliable and arbitrary.

Also among the top five countries for capital punishment was Iran which gave cause for moral outrage when it reportedly executed the entire male population of a village in the South for drug offences.  China retains secrecy on its carrying out of the death penalty, but it did amend its criminal law last year reducing the number of crimes punishable by death from 55 to 46.  Pakistan, in the meanwhile, carries the death sentence for, just a little behind in the horrible race to the bottom, 27 offences.  By the middle of the year Saudi Arabia had executed at least 102 people and along within China, Iran and Pakistan, it accounted for 90 per cent of the  executions in 2015. The total executions figure of at least 1634 does not include China’s executions. Saudi Arabia is known for its unfair trials, lethal intolerance for drug offences, and many Pakistani executed for being drug mules do not have adequate access to consular services or a fair trial.

Stoning, shooting gas chambers, hanging, beheading or lethal injections are the methods states currently employ to execute people. They are all inhumane and barbaric; and it is pointless to label stoning barbaric, which it is, beheading uncivilised, which it is, hanging quick, which it is not, or lethal injection sanitised, which it is certainly not. But what is indicative of a democratic and humane civil society is how it contests these death methodologies through litigation under constitutional and human rights principles banning cruel, inhumane and degrading punishment – and the number of meaningful chances at appeal available to those facing capital punishment.

The sanctity of life commands that every possible route to appeal a draconian sentence of death is explored. In 1982, ex-Black Panther Party member Mumia Abu Jamal was unfairly convicted of murder and sentenced to death in a racist trial. His sentence was confirmed by the highest court of Pennsylvania in 1989. In 1990 the Supreme Courts denied his writ of certiorari and then in 1991 his request for a review of their decision. In 1995, Mumia applied for post-conviction relief and new witnesses were called to testify in a renewed trial. Losing that battle, he pled before the Supreme Court again only to have his second cert petition denied. More appeals later, in 2001, a federal district court of the third circuit vacated his death sentence citing to irregularities during his sentencing and ordered new sentencing proceedings. His final vindication was in 2011 when prosecutors announced that they would not pursue his execution.

If Mumia’s trial was marred by the institutional racism of the American criminal justice system,  Shafqat Hussain’s trial was marred by how courts, and in fact all state polices, are stacked against the poor in Pakistan – be they oppressed ethnicities, slum dwellers, migrant labourers, Dalits, the young, or Christians. While, Mumia (although still in jail) benefitted from almost three decades of legal battles to save his life from what could have been a wrongful execution, Shafqat Hussain, a lower income juvenile at the time of his crime, was illegally executed despite international pressure.

With over 300 assembly line executions in 2015, almost an average of one per day, in the state has shown that it can’t be bothered too much by legal safeguards. But it should be. All life is sacred and there are no short cuts if the result is the potential death of an innocent person. And given the flaws in our system, many of those 300 were probably innocent if not of the crime itself, then as victims of unfair trial.

The death penalty should be evaluated in the general landscape of the war against the poor. The state’s rapid drive toward draconian laws, over criminalisation and incarceration, in its effort to mimic other states, like the US, with its massive prison apparatus and Patriot Acts, should be seen in light of the fact that those countries may have more developed history of capital defence and habeas corpus litigation.

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Abira Ashfaq

Abira Ashfaq

A law teacher in Karachi who works with human rights organisations. She tweets @oil_is_opium. (twitter.com/oil_is_opium)

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.