ALRC-CWS-36-004-2017
18 August 2017
18 August 2017
A Written Submission to the UN Human Rights Council by the Asian Legal
Resource Centre
The Asian Legal Resource Centre (ALRC) would like to draw the
attention of the UN Human Rights Council to the state of death penalty
in Pakistan. The right to life is the inalienable right of every human
being. Pakistan’s Constitution, international norms and conventions
dictate that no one shall be deprived of life and liberty. In Pakistan
this right is only available to a select few. The normative laws may
provide an extensive basis for the protection of the right to life.
But the substantive laws, such as the Protection of Pakistan Act, 2014
and Anti-terrorism Acts, are arbitrary and unjust-causing travesty in
the name of justice.
ALRC/AHRC is thankful to the UNHRC and the International Community for
raising their voices against executions. The international bodies have
played a pivotal role in stopping executions which have increased
since December 15, 2014. We would also like to thank the Commune of
Nations who supported our cause. If not, there would have been more
executions as in 2015 when more than 344 death row inmates were hanged
to death. Unfortunately for Pakistan, the civil and military
establishments have always indulged in a tug of war for power.
Needless to say, this causes non-implementation of any pragmatic
strategy. Although the Civilian Government was against lifting of the
moratorium on hanging it was only at the behest of the Military that
they reluctantly ceded.
Fortunately, due to pressure exerted by civil society and the
international community, the hangings have become few and far between.
The lifting of the moratorium on the execution of death sentences,
while the Criminal Justice System is mired in corruption and
injustice, is a complete travesty of justice and human decency.
Exercising the death penalty, in an already intolerant society, is
clearly a populist move rather than a deterrent to crime and terror.
Blind to justice and international norms, these Courts have handed
down death sentences to minors, the mentally and physically challenged
as is the case of Imdad Ali.
With more than 475 hangings since the lifting of the moratorium on
execution on December 27, 2014, Pakistan ranks third in the world in
the number of executions, behind Saudi Arabia and China. Given serious
fair trial concerns, executions are travesties of justice.
Insufficient access to lawyers and endemic Police torture to extract
confessions severely undermine due process and fair trial.
The State has been unable to contain the spread of terrorist ideology
or ensuing violence. Hanging an alleged terrorist has proven to be
futile in deterring crime, as the incidents of terrorism continue to
rise in many parts of the country.
Instead of executing inmates, perhaps the better counter-terrorism
measure would be to eliminate the terror cells that are mass producing
suicide bombers and militants. The Interior Ministry recently shared
the State Department’s statistics with Parliament to prove that the
ongoing operations against terrorists had helped improve the situation
to a large extent.
According to the Amnesty International, at least 8,500 prisoners were
under the death penalty at the end of 2015. According to the Interior
Minister of State, in 2015 there were 6,016 death row inmates in the
country. It is not clear whether he was referring only to inmates
whose death sentences had been finalized on appeal. Pakistan has the
largest number of people in the world on death row. At this rate, if
the Government were to decide to up their execution rate and hang all
the death row convicts within a year, State executioners will have to
hang 667 people daily.
Establishment of Military Courts to try militants has also proven
fruitless against curbing the tide of militancy. Despite completing
their mandate of two years and a Sunset Clause becoming operational,
the military courts are still doling out capital punishment after
summary trials. The criteria of sending cases to the military courts
has still not been decided or drawn up. The Police, already marred by
corruption and inefficiency, are authorized to decide which of the
criminal cases will be sent to military courts. The inefficiency of
the police can be gauged from a case of car theft that was sent to a
military court from the Koral Police Station of Islamabad. Upon
scrutiny it was revealed that the offender had the same FIR number of
2013 against another unknown person. However the police in attempts to
show its efficiency had sent the case of theft to a military court by
changing the year from 2013 to 2014.
The criminal justice system in Pakistan is one of the few examples of
an archaic remnant of the colonial era system where capital punishment
was omnipresent. The threat of capital punishment looms over much of
the criminal justice system. At the time of Pakistan's independence in
1947, only two crimes, murder and treason, were eligible for the death
penalty. Today, Pakistani law identifies 27 crimes punishable by
death, in addition to terrorist offenses. Many of those crimes, such
as blasphemy and adultery, directly contravene the holdings of the
Human Rights Committee.
Despite the Constitutional guarantee under Article 9, the courts hand
down death penalties without following any due process, or fair trial.
Right to life is a supreme and inalienable right, and any exception to
it must be narrow and well -founded. The death penalty legitimizes an
irreversible act of violence by the State and will inevitably claim
innocent lives. As long as human justice remains fallible, the risk of
executing an innocent can never be eliminated.
Following the Peshawar Massacre that claimed the lives of more than
150 school children on December 16, 2014, the moratorium on the death
penalty was lifted. It was on the insistence of the military hierarchy
that sought refuge for its shortcoming for failing to protect the
children by lifting the moratorium on the death penalty. Instead of
working out a cohesive counter-terrorism strategy the military and
intelligence agencies urged the hanging of death row inmates who were
already languishing in jail for decades, many of them innocent. Calls
for comprehensive reforms to this overall system of justice, has been
called for, time and time again, by civil society activists, the
intelligentsia and interested parties. However, despite such repeated
calls – except for a few half-hearted pledges by the Government for
reforms, no concrete measures have been taken so far
The lifting of the moratorium on the death penalty was always going to
be more of a populist move than a deterrent. And, this has proved to
be the case. With poor reputations and labyrinthine and archaic
procedure of testimony and evidence, the Anti-Terrorism and
Session’s Courts have been passing death sentences. Rampant
miscarriage of justice that results due to confession obtained through
torture is the basis for these courts to hand down death sentences.
These courts are blind to justice and norms. They have been handing
death sentences to minors and even the mentally and physically
challenged. Without tackling the root cause of terrorism, i.e.
poverty, unemployment, illiteracy, and increasing radicalization, hope
for reformation is wishful thinking. Drawing a distinction between the
good Taliban and the bad Taliban, while the innocent are hanged,
serves no meaningful purpose, other than perpetuating cruelty.
In the light of the above the ALRC would like to recommend that the
Government of Pakistan should:
a) Immediately place a moratorium on the death penalty, and release
all inmates who have served out more time in jail than the prescribed
penalty for their alleged crime.
b) The State should invest extensively and heavily in reforming the
Criminal Justice System. The Government should make wide scale reforms
in policing, the criminal justice system and witness protection
c) Roll back the Military Courts that have already completed their
mandate of two years and the Sunset Clause that has become
operational.
The State should own up to their own shortcomings and inefficiency at
curbing terrorism. They should devise a cohesive plan of action to
check the spread and dissemination of violent ideologies in the name
of religion.
Read this Statement online
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The Asian Legal Resource Centre (ALRC) works towards the radical
rethinking & fundamental redesigning of justice institutions in Asia,
to ensure relief and redress for victims of human rights violations,
as per Common Article 2 of the International Conventions. Sister
organisation to the Asian Human Rights Commission, the ALRC is based
in Hong Kong & holds general consultative status with the Economic &
Social Council of the United Nations.
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