Reinstate the moratorium on the death penalty!

Published: December 23, 2014
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Pakistan must make its domestic legislation compatible with international conventions without reservations that render ratifications meaningless in letter and spirit, and enact legislation where necessary. PHOTO: REUTERS

As a legal and human rights defenders’ community, we should condemn the Peshawar attack and express solidarity with the victims. However, lifting the moratorium and executing prisoners on death row will not eliminate the threat of terrorism and militancy or make us safer. It will be another step towards eradicating the constitutional rights of ordinary citizens. 

Shafqat Hussain’s case has nothing to do with terrorism and seems more like a public relations gesture to appease public outrage at the heinous and barbaric attack of December 16th. As Reprieve points out, Hussain is of poor background, and was 14-years-old at the time of the offence. He was convicted of involuntary manslaughter after the police forced a confession out of him after nine days of torture.

By executing him, the state will violate international human rights laws. Pakistan ratified the Convention on the Rights of the Child in 1990. Article 37 (a) states,

“No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.”

By ratifying this convention and the Convention against Torture, Pakistan committed itself to protecting children, and ending torture. Hussain was a victim of torture and however reprehensible his acts were, he was a child at the time of commission. This means that Pakistan can be held accountable in the international community for the contravention of its international obligations. Regardless of the spectre of international condemnation and socio-economic isolation, Pakistan needs to guarantee certain basic rights and tenets to its citizens.

The moratorium on the death penalty should immediately be reinstated and the Pakistani legal community should look into this matter further to see whether the death penalty can ever be enforced with complete fairness, and move towards implementing Article 6 – right to life – of another ratified treaty, the International Covenant on Civil and Political Rights. And we need to ask ourselves whether these executions satisfy some need in us for blind vengeance regardless of the identity of the accused – someone must die – or whether they actually serve the purpose they purport to serve.

Under no circumstances should the state carry out public executions (or allow display of hanging as these violate human dignity), executions while a criminal defendant’s appeals, requests for pardons and commutations are pending, executions of those who are mentally ill at the time of commission or execution, executions as political vengeance or for crimes committed by people when they were under 18. Ensuring those on death row these basic minimum rights will allow us to become more humane as a society. There is nothing original about death. There’s already little sanctity of human life. TTP kills with impunity. However, the state must abide by international norms, and show vigilance and restraint when using this most draconian penalty and show citizens how sacred human life actually is.

In Pakistani jails, juveniles are serving life sentences for being accomplices in kidnapping.  They are tried as adults in anti-terrorism courts even though they may have no connections, whatsoever, with any terrorist organisation. But since the Anti-Terrorism Act (ATA) 1997 defined a terrorist offence as something that “will be, or be likely to strike terror or create a sense of fear and insecurity in the people or any section of the people, or to adversely affect harmony among different sections of the people,” kidnapping and murder were tried as terrorism. Reprehensible they may be, but calling these crimes terrorist offences without establishing links to terrorist outfits misses the actual target. In addition, the state loses moral high ground when it violates the rights of children who should be tried in juvenile courts with all ensuing legal protections. Pakistan must stop trying children under anti-terrorism laws. These are substantively broad and vague, and contradict some of the basic rights provided to children under the Juvenile Justice Ordinance 2000 and international conventions.

Pakistan must make its domestic legislation compatible with international conventions without reservations that render ratification meaningless. This would require a serious review of laws affecting juvenile defendants. Terrorism cannot be destroyed by whole scale denial of basic constitutional rights of detainees, underage defendants and those on the death row. Sentences for children should be aimed towards their rehabilitation, however ambitious and futile this may presently seem in a political economy of war and militancy in which children have indeed been the worst victims. We want safety and security for all children and for the state to come up with holistic solutions to ending terror. These cannot include a derogation of basic human rights under the pretence of some elusive higher purpose.

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.

  • sana

    Please stop this nonsense! This HAS to he done. These criminals have no human rights. They have lost the right to be human.Recommend

  • SSJ
  • Maximus Decimus Meridius

    Just one question
    What should be done to the terrorists?
    Life in prison? where they
    1)need constant feeding and bedding at the expense of the government. Which is basically saying that, “feel free to kill our toddlers, we will give you free bed and board for that”
    2)Brainwash other prisoners into killing and murdering.
    3)Run terror cells and other criminal gangs using cell phones smuggled into the prison. OR if people like you run the prisons they will just provide them the phones.Recommend

  • SSJ

    They lost whatever rights they had when they took a life.Recommend

  • Ali

    No opinions are valid in front of the verdict of Allah in the Quran.Recommend

  • Abdullah

    It is sad that some liberal facists have a different agenda when it comes to implement the rule of law in the society. While they the quick to jump and blame the administration for the moral degeneration of the society, any attempt to fix the issue through implementation of the rule of law is equally criticised by the same segment. Criticism and criticism alone appears to be the order of the day for this herd. May be its the attraction of media which is more important to them rather than the crime itself… Sad indeed.Recommend

  • NM Khan

    @sana: I wish you had read the article before commenting. Abira writes about Shafqat who allegedly committed a crime at 14. To say that he has lost the right to be human was the real nonsense.Recommend

  • Lt Col Imtiaz Alam(retd)

    I am totally taken aback when I hear a Muslim saying ‘Reinstate the Moratorium on the Death Penalty”. Recommend

  • Lt Col Imtiaz Alam(retd)

    The Islamic Laws acts as a Deterrent. Who else can be wiser than my Rab Allah SWT.Recommend

  • Arslan Abbas

    International community has all eyes on us, while Iran is executing in same way and S.Arabia is beheading criminals. I think beheading is more cruel punishment.Recommend

  • kazmi

    Stop justifying criminal acts….. the hug the thug policies don’t workRecommend

  • Malaika Harris

    If you think that people who did not have a fair trial and were tortured should be hanged, then you’re no better than the Taliban.Recommend

  • arshad M.

    So the people who were murdered had no rights to live? But yes, it must be ensured that no innocent is hanged.Recommend

  • Fighter Man

    Miss Author,

    How would you feel if your father, brother, son or any dearest one would be killed by terrorist. Have you ever thought about that ?Recommend

  • HassaanM

    The question of fairness can come back later because at this very moment, we as a nation seek revenge and the noose is providing just that.Recommend

  • goggi (Lahore)

    A society of uncompassionate illiterates can only produce like-minded illiterate sadists.Recommend

  • kamran jaleel

    Isnt it amazing that someone had the audacity to bring it up when sand on graves of dead kids had not dried yet? Pakistan is threatened by not only religious fanatics but also liberal fascists. May God save us from both of these menaces.Recommend

  • Arif Jamal

    Ms Abira.. please don’t take too much stress. Your UK and EU visas will remain intact, ok. Please think once for betterment of this poor violence-ridden Pakistani society rather then your paycheck from some NRO. Here law of the land dictates death penalty is the right option. Its easy to write these type of fairy tale artcles sitting in airconditioned rooms. We are up against the most dangerous enemy.Recommend

  • NeverForget

    There should be and I think there is a clear distinction that death penalty is only reinstated in case of “Terrorism” cases. There is a need for this otherwise what happened in case of D.I.Khan jailbreak and GHQ will happen again and again. Either convicted terrorist would break out or released as “good will gestures” or as part of negotiations. Please understand the difference between the two. In case of Shafqat yes it is sad but it not the death penalty to be blamed but how you define a terrorist and how you distinguish between terrorism and non-terrorism related cases.Recommend

  • Mahmood

    Abira Sahiba with due respect of your arguments I will ask a question; Do you think the level of militancy in this region can be eliminated without appropriately punishing the terrorist involved in “mass killings”? Please let us not get confused over human rights laws over factual situation.Recommend

  • Farhan

    Dear author. Bring back the children from the dead and reunite them with their parents. Then come to us and talk about moratorium.Recommend

  • tahironly

    as per your opinion brutally Killing Human, women and child is huminity???Recommend

  • Arif Jamal

    Don’t agree with the author at all. This is Pakistan and not the EU. Maybe 200 years from now when our country is more civilized we can follow accordingly.Recommend

  • Asad Malik

    Not sure which fool’s paradise you’re living in lady but it sure doesn’t work on planet Earth. Anyone who commits acts of terrorism resulting in the loss of life forfeits his human rights.

    It’s time you pseudo intellectuals leave the comfort of your lounge and remove the degrees of separation you have with the common folk. Our society will not progress without cleansing it and removing the malignant tumors of sectarianism and intolerance.Recommend

  • Saad

    This article was a waste of time, these laws are not for Pakistan to adhere to as we are already in war, this so called democratic country is and will always be run through Dunda system, where punishment of murder needs to be dealt with not by blood money or favoritism but through death, and believe me these terrorists dont even deserve this sacred death by law, they deserve the same fate as they bestow on othersRecommend

  • abdullah

    you people who think they are more educated then the islamic scholars,know tht your dreams will never be fullfilled and your goals will never be achieved.why is it that you want death penalty to be banned :is it because your working for enemies of islam and pakistan:OR is it because you think you know (na-ou-zou-billah) more than ALLAH.AND one last request stop using the term TALIBAN for the animals who killed children,the real taliban are in afghanistan doing JIHAD against the NATO/USZ forces.WE ALL KNOW THAT YOUR MOTIVES ARE TO CONFUSE THE MASSES INTO BELIEVING THAT EVERY TALIBAN IS THE SAME.Recommend

  • Gaad

    @sana They ARE very much HUMAN. Only humans do this kind of stuff, not animals.

    They need to be considered ‘HUMANS’ but should not be considered ‘HUMANELY’. (I know how you feel. I’m trying to support you here in a sarcastic way i guess…sorry). I can only offer this verse from Mir Taqi Mir

    ‘Main Kaun Hun Aye Hum-nafasan, Saukhta Jaan hun
    Ik Aag Mere Dil Main Hay, Jo Shula-fishan hun”

    “Who am I my fellow beings, a burnt up soul
    there is an inferno in my heart which has turned me into a volcano” (quick but poor translation).Recommend

  • Gaad

    Please don’t demonize her with these sort of comments. She has a point of view. We must listen and respect others. I agree that death penalty should not be abolished but I will not trash someone for holding a different opinion.Recommend

  • abhi

    Pak establishment has converted threat into opportuinity. The death panelty will be only for those who are not with establishment, others will be be free to walk on bail.Recommend

  • Working Woman

    Only if you’d tried reading Quran, you would have known what Allah, the merciful, decided as a punishment for evil doers, murderers, killers and those who are oppressors.Recommend

  • Ay-Okay

    Sociological studies indicate that prisoners on death row getting executed behind closed prisons has on impact on crime rate anyways.Recommend

  • Bilal Kaleem

    Reading articles from the Independent and the Daily Telegraph, one time to time happens to scroll down, and gives the comments a cursory read. In comparison, the comments present over there are intelligent, knowledgeable – even if for criticism. Only once in a blue moon does a person vent out his anger on the author, only to be publicly ridiculed by a dozen or so people. Why are we this aggressive? I fail to understand…Recommend

  • Bilal Kaleem

    Why idealize the west? We should look within instead of comparing with others.Recommend

  • Ahmad Rafiq

    It was not an alleged crime. It was a proven crime but since the death penalty was not placed for so many years , that B*stard got a free pass at life. When the case finally opened , the “liberals” or “civil”-Society made false documents making shafqat Appearing as 14 years old but infact he was 18 at the time. This makes him suitable for the noose where he belonged. THE ENDRecommend