Courts and the death penalty
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OCTOBER 10 — the annual world day against the death penalty observed yesterday — came this year at an important time in the debate about capital punishment in Pakistan. Just last week, the Supreme Court constituted a larger bench to decide on a petition filed by Watan Party that calls on the court to declare the death penalty incompatible with the right to life and to commute the death sentences of more than 8,000 prisoners on death row.
As the Supreme Court considers these questions, it is pertinent to look at the incompatibility of the death penalty with international human rights standards, and assess what role courts can play in ensuring that Pakistan meets its obligations under international law.
The death penalty constitutes a violation of the right to life and the right not to be subjected to cruel, inhuman or degrading punishment.
As Asma Jahangir, a member of the International Commission against the Death Penalty, pointed out in a recent UN panel discussion, the death penalty has no demonstrable deterrent effect, is often imposed after grossly unfair trials, and risks irreparable miscarriages of justice through execution of the innocent.
In 2007, the UN General Assembly adopted a resolution emphasising “that the use of the death penalty undermines human dignity” and calling for the establishment of a global moratorium on the use of the death penalty “with a view to abolishing the death penalty”. The resolution was reaffirmed most recently in December 2012, when 110 UN member states — an overwhelming majority — voted in favour of a worldwide moratorium on executions as a step towards abolition of capital punishment.
Pakistan’s faulty criminal justice system makes the death penalty all the more abhorrent.
Article 6 of the International Covenant on Civil and Political Rights, which Pakistan ratified in 2010, guarantees the right to life and requires that states that have not yet abolished the death penalty must restrict capital punishment to only the “most serious crimes”. It is important to note that the ICCPR was adopted in 1966 before most states had abolished the death penalty, but an optional protocol to the ICCPR for the abolition of the death penalty was adopted in 1989, signifying the emerging global standard for abolition.
Additionally, the UN special rapporteur on extrajudicial, summary or arbitrary executions and other authorities have interpreted “most serious crimes” in Article 6 of the ICCPR very restrictively, limited to those cases where there was an intention to kill which resulted in the loss of life.
In Pakistan, capital punishment is prescribed for 27 different offences, including blasphemy, sexual intercourse outside of marriage, assault on the modesty of women, and smuggling of drugs. Most of these crimes do not meet the threshold of “most serious crimes”, making Pakistan’s death penalty regime a clear violation of Article 6 of the ICCPR.
The UN Human Rights Committee has also emphasised the importance of the most scrupulous protection of fair trial guarantees in cases involving the death penalty. Pakistan’s criminal justice system is plagued with systematic violations of due process rights of defendants, including widespread use of torture and other ill-treatment, making the award of capital punishment all the more abhorrent.
In light of all these factors, it is incumbent upon all institutions of state — including the foremost protector and promoter of human rights, the judiciary — to ensure that Pakistan implements its human rights obligations to end executions in law and practice.
So far, however, the Pakistani judiciary’s contribution to the discourse on the death penalty has been disappointing. Whereas successive elected governments have adopted informal moratoriums on executions since 2008, disturbingly, judges of the Supreme Court and various provincial courts during this period have made remarks and passed orders calling on the government to carry out executions without delay and questioning the executive’s authority to issue a moratorium on executions.
Regrettably, the Supreme Court’s response to Watan Party’s petition on the death penalty, first made in 2011, has also suffered from inexplicable delay and it is only recently, after a period of over three years of adjournments, that the court appears to have taken real interest in the petition.
As a larger bench of the Supreme Court now considers the compatibility of the death penalty with human rights, it can draw inspiration from how some other apex courts from around the world have positively contributed to the discourse on the death penalty.
In 1995, the South African constitutional court declared capital punishment violated the right to life and the right to freedom from cruel and unusual punishment and was, therefore, unconstitutional. The court also held that since the death penalty was disproportionately given to the poor in South Africa, the implementation of the death penalty was also inherently arbitrary.
In addition to declaring capital punishment unconstitutional and a violation of fundamental rights, courts have also found other ways to slowly chip away at the death penalty.
In 1980, the Indian Supreme Court limited the death penalty to the “rarest of rare cases when the alternative option is unquestionably foreclosed”. More recently, the court has provided for heightened safeguards for the accused in cases of capital punishment, including: ensuring death penalty review petitions are heard orally in open court; prohibiting executions of those who are of unsound mind; and declaring that an excessive delay in deciding mercy petitions was a ground for commuting the death sentence.
The Indian Supreme Court’s jurisprudence on the death penalty falls short of international obligations and enforcing an end to the practice. Implementation of the court’s judgements has also been plagued with inconsistencies and contradictions. However, these judgements are slowly helping to bring India closer towards the global trend of abolition.
All eyes are now on the Pakistani Supreme Court. One hopes it will confront the fundamental human rights issues at the core of the death penalty debate and recognise the death penalty as what it is — a violation of the right to life and a cruel, inhuman and degrading punishment that has no place in a humane society.
The writer is a legal adviser for the International Commission of Jurists.
