By Zubeida Mustafa
LAST Thursday Pakistan reported its first execution in four years. Muhammad Hussain was hanged in Mianwali jail thus ending the tacit moratorium the government has observed since 2008 when Gen (retd) Musharraf’s rule ended.
The convict was a soldier of the Pakistan Army who was accused of killing his senior — a havaldar — with whom he was embroiled in a personal dispute. This came as a shock to human rights activists who have been campaigning against capital punishment. This execution took many aback because only a fortnight ago the president’s spokesman Farhatullah Babar had disclosed that the government was working on a bill to abolish capital punishment before the elections. The bill will convert the death penalty into life imprisonment.
In the last four years that Mr Asif Ali Zardari has been in office no prisoner had been executed in any jail in Pakistan until last week. Not that no death sentences were handed down — the death penalty continues to be recognised as a form of punishment in Pakistan’s judicial system. Nor were prisoners given clemency apart from a few.
But a tortuous procedure was adopted. An execution date for a prisoner on death row would be fixed, a clemency appeal made on his behalf and the president’s office would grant a stay order every three months, and thus prisoners — over 8,000 of them — escaped the noose.
It did mean that a prisoner had a sword perpetually hanging over his head. Zulfiqar Ali, a death-row prisoner in Kot Lakhpat, maintains a record. He has had 16 execution dates and 17 stay orders issued since 2008 when his review petition was turned down.
In 2007, the UN General Assembly had recommended that governments that had not abolished capital punishment should announce a moratorium on executions.
Seen against this backdrop, the hanging of Muhammad Hussain last week comes as a regressive step. The Punjab chief of prisons explained that this conviction was a military matter and the president did not intervene in such cases that fell under the army’s jurisdiction. But it was also stated that clemency had been turned down by the president as well as the chief of army staff.
If the appeal went to the president, it means he had a say in the matter. Why was the execution carried out in a civilian prison if it was a military issue? Apparently this was intended to demonstrate to the world who actually exercises power in Pakistan when the government and the military are at cross purposes.
It is time the government acted speedily on the issue of capital punishment that has been hanging fire for long. Last year Barrister Zafarullah had petitioned the Supreme Court to abolish the death sentence, given the corruption that is rife in the judicial system. The chances of innocent people being declared guilty and sentenced to death wrongly are very high.
The process of law requires that any person tried for a crime should have the right to full legal defence. Unfortunately, this is not the case in Pakistan. It has been clearly established again and again that police investigations are often flawed, and lawyers appointed by the state do not always perform their duties responsibly resulting in the miscarriage of justice.
Take Zulfiqar Ali’s case. According to him he was not provided competent and honest lawyers. The counsel appointed by the courts to argue his appeals didn’t meet him at all. As a result his request for a review was taken up by Justice Iftikhar Chaudhry who converted it into a review petition suo motu in 2006. But before any action could be taken the chief justice was out and Zulfiqar Ali’s petition was heard by the PCO judges.
The lawyer who was supposed to represent him never showed up at the review hearing in 2008. Such is the state of our judiciary that the judges reportedly caught hold of one of the lawyers present in court, who had no inkling of the case, and enlisted him as the defence counsel to fulfil a formality. Would that be considered a fair trial? And we do not know how many of those sentenced to death in Pakistan have suffered a similar fate.
All this comes at a time when the momentum towards abolition of the death penalty is growing. Protocol 2 of the International Covenant on Civil and Political Rights stipulates that all parties will “take measures to abolish the death penalty within their jurisdiction”. Seventy-five states are parties to the protocol today.
The UN Assembly is also poised to adopt next month a resolution for the fourth time calling on member states to establish a moratorium on executions with a view to abolishing the death penalty.
The rationale as identified in the resolution is stated to be “that any miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable” and that a moratorium “contributes to respect for human dignity and to the enhancement and progressive development of human rights”, and “there is no conclusive evidence of the deterrent value of the death penalty”. A large number of states have formally or informally observed a moratorium.
We may well ask, why should Pakistan be left behind?