PAKISTAN’S trial courts sentence people to death at the rate of almost one person a day, with over 4,500 death sentences since 2004, according to a recent analysis of capital punishment practices by Justice Project Pakistan.

Encouragingly, however, between 2012 and 2018, Pakistan’s officially recorded death-row population has gone from being 7,167 to 4,688 — an astounding one-third reduction. This defies the historical trend of a steady increase in the net total of the country’s condemned prisoners. In the same period, 1,692 people were sentenced to death and almost 500 people were executed. In other words, 1,200 people should have been added to Pakistan’s death row instead of this rapid decrease.

So, what is behind this unprecedented feat?

The prosaic answer is that this is the result of Pakistan’s appellate courts taking corrective action. 

A Supreme Court bench, constituted in 2014 and headed by Justice Asif Saeed Khosa, has taken on the backlog of thousands of appeals in criminal cases going back to the 1990s. In 85 per cent of capital cases before it, the conviction was found to be erroneous, based on faulty, incomplete or fabricated evidence, resulting in acquittal or reduced sentences.

There is pressure on trial judges to hand out death sentences.

In effect, the country is split between two parallel systems, with incongruent sentencing trends. The higher courts have the job of going over trial proceedings and determining the judiciousness of the decisions. The fact that appellate courts routinely find severe fault with decision-making at the trial level is a serious systemic crisis.

That many wrongful convictions are ultimately overturned affirms the value of the Pakistani appellate courts, but many innocent individuals have had to face torturous death cell conditions for well over two decades. Thousands of Pakistanis have lost years of their lives, their families in complete ruin having had to bear the legal fees, trauma and social stigma of their incarcerations.

Are the judges of lower courts unaware of proper evidentiary rules and precepts of justice? Of course not — they are highly trained and qualified individuals. The fact that their decision-making patterns are consistent across time and space reveals an unwritten systemic logic at work.

Criminal justice practitioners find the written procedures and laws safeguarding the defendant’s rights in capital cases out of sync with their institutional reality, so they collectively proceed to discard them. They seem to operate on the logic of getting the wrong guy with the wrong methods. Torture is predominantly used as an investigative and interrogative technique, making the resulting confessions inconsistent with the evidence surrounding it, and making the resulting convictions manifestly unsafe.

According to lawyers of trial courts, there is immense pressure on judges to sentence someone to death during a murder case, because threats of retribution and extrajudicial violence are ever present, both inside and outside a courtroom. This leads to an environment where judges, aware of the ‘safety net’ of the appellate courts, hand out death sentences on patently fabricated premises as a means of dousing the fire before them.

To this effect, during court proceedings, Justice Khosa recently remarked that some instructors in the federal judicial academy blatantly tell their charges that acquittal is not the job of a trial court in a murder case.

Moreover, initiatives for reforming the judiciary are about increasing efficiency, so the only statistical categories recorded are the numbers of disposed of and pending cases. Thus, there is an added impetus for trial court judges, whose performances are to be reviewed solely on the number of cases they have finalised, to hastily hand out capital sentences.

However, over-sentencing to death violates the legal code for centuries of criminal law. They are taking into consideration factors that are not legal. In sociological terms, this constitutes a deeply embedded routinisation of deviance in the criminal justice system. Poor quality and easily reversed judgements at the trial level are, therefore, like a feature of the judicial system rather than a bug.

Contextualising decision-making of trial courts does not excuse the societal damage being done by this phenomenon. In addition to the grave human cost, this also means that the already overburdened appellate court system is routinely put under more strain by trial court judges simply passing the baton and hoping for the best. 

While remedying the glacial pace of judicial cases is certainly important, equal considerations should be made for the qualitative content of judgements. Record keeping should be expanded to include conviction, acquittal and sentencing. Trials and sentencing procedures must be bifurcated to determine guilt and, with it, the appropriate punishment.

The writer is an instructor and sociology researcher working with Justice Project Pakistan.

Twitter: @daniyalyos

Published in Dawn, October 4th , 2018