Restoration of executions two years ago after a six-year moratorium is perhaps one of the most significant reversals of human rights progress in Pakistan’s recent history.
As the rest of the world is rapidly moving towards abolition of the death penalty, with at least 150 states now abolitionist in law or practice, Pakistan is fast surpassing nearly all other countries and is now the third highest executioner globally after only China and Iran.
The government brought back executions for people convicted of terrorism-related offences in December 2014 as part of the National Action Plan against terrorism, and lifted the moratorium for all cases in March 2015. Contrary to popular perception, more than 85 per cent of the 425 executions that have been carried out since December 2014 relate to ordinary crime, not terrorism.
Over these past two years, multiple problems relating to the implementation of the death penalty have been identified. These include inadequate protection against executing people suffering from mental illnesses or people who were minors at the time of the offence, as well as lingering concerns about executing people convicted wrongfully.
One important aspect of the implementation of capital punishment that has thus far been largely overlooked in Pakistan is its inherent arbitrariness, which is just another reason why retaining the death penalty is an ongoing violation of a number of human rights protections.
The argument is simple: the death penalty is an inherently arbitrary punishment because it cannot be applied fairly, consistently and without discrimination. As explained by the late justice Chaskalson, former president of the South African Constitutional Court, and former president of the ICJ, in S v Makwanyane: “At every stage of the [death penalty] process there is an element of chance. The outcome is dependent on factors such as the way the cases are investigated by the police, the way the cases are presented by the prosecutor, how effectively the accused is defended, the personality and particular attitude to capital punishment of the trial judge and, if the matter goes on appeal, the particular judges who are selected to hear the case.”
In Pakistan, most death sentences are given and carried out under Section 302(b) of the Penal Code, which relates to intentional murder. The provision provides for death or life imprisonment as the two possible sentences upon a finding of guilt.
Jurisprudence on whether and on what basis to give the death penalty as opposed to life imprisonment has been inconsistent and often contradictory. For example, some Supreme Court judgements have held that death is the usual punishment for murder. Others, however, have emphasised the principle of ‘justice with mercy’, and have stated that courts must give reasons if they opt for the death penalty.
What is considered a mitigating circumstance to make a defendant deserving of life imprisonment instead of death also varies greatly among judges: In some cases, provocation has been considered a mitigating factor; in others, an accentuating factor.
Similarly, at times the court has held that life imprisonment is the appropriate sentence where prosecution fails to establish the ‘motive’ behind the murder, while in others, it has held failure to establish motive is not itself a sufficient ground to give the lesser sentence of life imprisonment.
Other jurisdictions have also grappled with these issues. In 1980, the Indian supreme court restricted the death penalty to the “rarest of rare cases” to reduce the arbitrariness and inconsistency in when judges opt for the death penalty. However, courts have since then admitted that this ‘test’ has been unsuccessful and the application of the death penalty is still based on the “personal predilection of the judges constituting the bench”.
Courts in the US have also for many decades tried unsuccessfully to craft rules to reduce arbitrariness in the death penalty. The impossibility of this task led US supreme court justice Harry Blackmun to famously declare: “I no longer shall tinker with the machinery of death,” in expressing his view that the death penalty was inherently unconstitutional.
The Indian and US examples are in line with experiences from around the world; they have shown that no attempts to cure the system of death from its arbitrariness are likely to be successful. This is why the South African constitutional court in 1995 declared the death penalty unconstitutional because of the arbitrariness and inequality inherent in the punishment.
Research carried out the world over shows that arbitrariness in the application of the death penalty manifests itself as discrimination against people from vulnerable segments of society. In India, for example, a recent National Law University study found the death penalty is disproportionately given to Muslims and people from “backward castes”. Studies from the US show similar bias in sentencing, with African Americans at greater risk of being given death sentences than white persons, especially if the victim is white.
Arbitrariness in the application of the death penalty has effectively resulted in a ‘death lottery’. While in other criminal cases arbitrariness in sentencing may result in differences in duration of sentence, in death penalty cases, how and why judges use their discretion on sentencing is, literally, a matter of life and death.
The inherent arbitrariness in the application of the death penalty is another reason to do away with capital punishment on top of many of others — the inherent cruelty to the executed person and his or her family and the denial of the right to life, not to mention the lack of any deterrent effect and the always present possibility of wrongful conviction.
Last year, the Supreme Court dismissed a petition calling for the death penalty to be declared unconstitutional without addressing any of these problems. The judiciary can no longer turn a blind eye to these glaring issues — the lives of Pakistan’s 8000 people on the death row, and the hundreds of people who continue to be given death sentences every year, depend on it.
The writer is a legal adviser for the International Commission of Jurists.