IS there any criminal act which is so horrendous or horrific that it justifies the death penalty? With the mass murder of innocent children in Peshawar and a state under siege, the Pakistani state is confronting this question.

The debate about the death penalty has been dominated by the usual elites. On one hand, there is the force-loving elite, for whom the answer to violence is an overwhelming use of counter violence by the state, with capital punishment as the ultimate solution although no evidence is provided for this death penalty deterrence theory.

On the other hand, there are the human rights groups, for whom a wrongful death can never be morally justified by another person’s death. They say the death penalty doesn’t deter people and in a flawed Pakistani criminal justice system, there are miscarriages of justice, although they fail to explain how to realistically deal with brutal militant violence in the context of a failing state and given the absence of a welfare state.

Dangerous and hardened convicts can neither be rehabilitated nor released.

Human rights groups have created the impression as if all those on death row (ie 6,000 to 8,000 according to them) will now be executed. This is misleading.

Firstly, people have been given the death penalty in terrorism cases under the Anti-Terrorism Act, 1997, as well as in non-terrorism cases under the Pakistan Penal Code, 1860, and under other laws. The Pakistani government has lifted the moratorium on the execution of the death penalty in terrorism cases only.

Secondly, the death penalty is normally imposed by the trial court (and in very limited cases, by the military courts). This death penalty cannot be executed under the law until both appeals before the high court and Supreme Court of the convicts are dismissed, including at least one further review to the Supreme Court and until the president dismisses the mercy petition. Therefore, the lifting of the moratorium applies only to those limited cases in which the entire process of appeals, review and mercy petition has been exhausted.

Such cases presently are between 75 to 80 (figures available up to January, 2014). Out of even these 75 to 80 cases, not more than half of them should be terrorism cases in which the death penalty may be executed. Hence, the spectre of mass executions is an exaggeration; there is no danger of 6,000 to 8,000 people being executed.

Reasons for lifting the moratorium: States are not moral actors nor are moral decisions taken by state actors within a socio-political vacuum. Therefore, it is important to understand these socio-political causes before moralising about it. These causes are: firstly, the Sharif government’s decision to discontinue the execution of the death penalty in 2013 was mainly based on the threat of retaliation by religious militants. Therefore, to continue with the moratorium even after the mass murder of children in Peshawar would amount to a complete abdication of the state before such groups. In short, it is a desperate attempt to save the state from complete irrelevance.

Secondly, with pressure from the military elite to lift the moratorium, motivated also by the potential impact of this mass murder on the morale of the troops fighting these militants, no government could have ignored this demand without losing support of the army whose children are now being targeted.

Thirdly, it is a fantasy to imagine that the Pakistani state would have reacted other than through the violence of executions and bombing of the tribal areas. The fact is that Pakistan is presently not a welfare state and violence is endemic to Pakistani society and state and therefore, the use of counter violence is a desperate attempt by a failing state to assert itself.

Fourthly, executions, sadly, have public support for many reasons, eg it is considered Islamic, people believe in the retribution theory of murder for murder and also believe in the deterrence value of the death penalty. Therefore, continuing with the moratorium would have led to a public backlash.

Fifthly, these dangerous and hardened convicts can neither be rehabilitated nor released and now cannot even be secured within the prisons as these militants in prisons pose a constant and imminent threat of jailbreaks, eg, the Bannu and D.G. Khan jail breaks.

Third way: This debate operates within a dichotomous framework in which either you are for or against the death penalty. In view of the above socio-political context of Pakistan, a limited use of executions may be an undesirable but unavoidable option as the policy choice presently is no longer between a good or bad option but between a bad and even worse option.

Such a policy may be based on the following principles. Firstly, executions should take place in limited number of hardcore terrorism cases but political (eg Baloch nationalist etc) and personalised cases of heinous crimes tried by the anti-terrorism and military courts should be excluded.

Secondly, a high level bipartisan committee, involving opposition members, should review each such case for miscarriage of justice and should also decide whether the convict poses a threat to prison security and to state security before allowing any such executions. Such a decision should not be left to the government and the army.

Thirdly, high security prisons should be built on a war footing so that future executions can be radically reduced, if not completely halted. Fourthly, life imprisonment legally only means a maximum sentence of 25 years. Laws should be amended so that life means life and convicts who pose a threat to state and society can be kept in prison instead of being executed. But even these principles emphasise the point that the death penalty moratorium should continue except in the ‘rarest of rare’ hardcore terrorism cases.

Neither the knee-jerk violent reaction of the state elite nor the indecisiveness of human rights groups is needed at this point. What Pakistan requires is realistic, although imperfect, solutions for its problem of uncontrollable violence.

The writer is a lawyer.

Published in Dawn, January 12th, 2015

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