Introduction:
Whenever or wherever there is a word human being, there is a word life. We cannot eradicate the life from humanity. Right to live or life is a basic and utmost right of any human being living in any corner of the world without the difference of color, creed, caste or religion. Human rights were originated since the birth of the first human being in this world. But if we want to trace them then we will find the roots of human rights from the Magna Carta which was issued in 1215 by the John Lockland. Now the question here is what is Magna Carta? So, it is the set of rules and regulations or basic human rights which was signed by the King of England in 1215.
In Islamic point of view, history of human rights is as old as the Islam itself. We can find various examples of the term Huqooq Ul Ibaad in the Holy Quran and Sunnah. If we study these terms deeply, we will come to know that these human rights in Islam are given to the human beings for his dignity and respect. So, we can say that Islam is the custodian of human rights.
I will not go deeply in the human rights in Islamic point of view or Western point of view. My research is about the right to life. How can we favor death penalty despite we have given every human being right to life?
Various Articles about Right to Life:
I will share the basic human rights here:
In 1444, the Poljica Statute declared right to life.
In 1776, the US Declaration of Independence, declared the right to life.
In 1966, the ICCPR declared the right to life.
The human rights act 1998 sets out the various principles of human rights. Its article 2 defines the right to life of every human being. This means that nobody including any government can try to end your life.
Article 3 of the Universal Declaration of Human Rights (UDHR) asserts that everyone has a right to life. Now here the world everyone means every human being living in any corner of the world.
Article 3 of the European Convention on Human Rights states that right to life shall be protected by law. It further states that without the right to life it is impossible to enjoy the other rights.
Still there are many examples of the right to life for every human being.
Constitution of Pakistan 1973:
Now if we study the Constitution of Islamic Republic of Pakistan, we will come to know that Article 9 deals with the security of a person. It further illustrates that no person shall be deprived of life or liberty. It does not define the term life but it covers all the facets of human existence.
Now turns towards the topic is death penalty is the basic violation of human rights law in the world or not?
What is Death Penalty?
Death penalty is considered as the capital punishment which is derived from the Latin word Capitalis, whose root is caput which means the head, which is the integral part of the life. Cutting the head or losing the head for the human being is equal to depriving him from the life. Death penalty comes under the prohibitory clause of Cr.PC which is section 497(1) of the code which states that the offence is non-bailable. Section 53 of the Pakistan Penal Code deals with the different types of punishments awarded to the convict for his/her crimes.
What is Death Row?
In law, “death row” refers to the section of a prison where inmates who have been sentenced to death for a capital crime are held while awaiting execution.
Let us start from the Pakistan, under section 53 of the Pakistan Penal Code, death penalty is provided as a mode of the punishment. Under section 368 of the Cr.PC, the mode of the execution of the death is that the person shall be hanged till death. Pakistan bans the death penalty from 2008 to 2013 under the pressure of the human rights activist but uplift the ban after the Army Public School Peshawar incident. If we study the death penalty database of Pakistan, we will come to know that 516 people were executed in Pakistan since December 2014 and 6039 people are in death row and the number is still increasing day by day.
Who are these 6039 people? Those are the poor, marginalized people from poor background waiting for death. None of them belongs to the rich background. Now a question here is that does rich people does not commit crimes in Pakistan? The answer here is yes, rich people does commit crime but a big round of applause to our judicial system who only give death sentence to the poor people of the country.
Why Death Penalty is Important?
There is a common stance of many jurists or law-making institutions that the purpose of giving the death penalty is not only to punish who commit serious crimes, but also to give the most severe warning to who intend to commit similar crimes, thereby minimizing similar crimes recurring in the future.
According to my opinion this assumption is based on false opinions. Let us consider the example of Pakistan, despite giving the capital punishment for various offences, there is annually 10% increase in the crimes. Murder, rape, Zina and 27 different offences which are punishable by death are increasing day by day. We can see daily number of cases happening around us which falls under the prohibitory clause. The famous Zainab Murder case. The culprit was executed but still thousands of children are being raped annually in Pakistan.
The United Nation General Assembly adopted in 2007, 2008, 2010, 2012, and 2014 suspended the capital punishment or death penalty. There are many countries which are based in Islamic Sharia including Pakistan which implies the death penalty for various crimes but it is the clear violations of right to life.
According to my opinion, awarding accused of death penalty and then keeping them in a death row is against the human rights.
With the change in the time day by day, many countries are banning the capital punishment. According to the Abolition of the Death Penalty in International Law, William Schabas, noted those fifty years ago, no one was ready to abolish the capital punishment but now this topic is under debate. Spain abandoned the death penalty in 1995 stating that the death penalty has no place in advanced civilized societies. The South African Constitutional Court has banned the death penalty stating that the right to life and dignity are the most important of all human rights. If we study the Makwanyane and Mchunu v. The State, 16 HRLJ 154 (Const. Ct. of S. Africa 1995) we will come to know that nothing is superior then the human life including the way it punishes criminals.
Death Penalty in Pakistan:
According to the PLD 2012 S.C. 1, the state is bound to ensure the fundamental rights of a person. According to the commentary of the Constitution of the Islamic Republic of Pakistan, 1973 by M. Mehmood, it clearly states that no person shall be deprived of life. If we move further, we come to know that life does not mean only single word “life”, but it means the life with dignity according to the PLD 2005 S.C. 193. In a recent judgement by Amjad Ali Shah, Judge, Anti Terrorism Court No.01 Rawalpindi, granted death sentence twice for murdering the two lawyers in the premises of District Courts Attock.
As I mentioned above, there are thousands of people in the death row in Pakistan. It is the situation the person is sitting behind the cold steel bars, inhabitant by an assemblage of doomed offenders who mark the relentless passage of time that alone separates them from death by execution. These prisoners have many psychological disorders like depression, anxiety, panic attacks, feeling of loneliness, schizophrenia and fear of death. The miserable condition of the prisoners on death row is alarming and needs attention.
A case has been brought in front of Supreme Court of Pakistan, titled as Mst. Safia Bano and others Versus Home Department Government of Punjab through Secretary and others, [PLD 2021 SC 488], in which this issue was discussed. This judgment enlightens the mental condition faced by the prisoners in the death row. The Supreme Court turns the death sentence to the life imprisonment.
Another issue is being raised in this judgment that we all know the judicial system of our country. There are many innocent prisoners waiting for their execution as we have seen in PLD 2021 SC 488.
Pakistani judicial system has many flaws during the pendency of trial. There are many cases in which poor investigation, weak evidences and long and slow judicial processes leads to the increase in death penalty. Let us take an example of Mazhar Farooq, he spent 22 years on the death row and after that he was acquitted by the Supreme Court. So, there is one more reason to ban the death penalty because our system needs reform. Supreme Court in its latest judgment have changed the death sentence to the life imprisonment. Reliance can be placed on [2024 YLR 2393 Shahzad Ahmed Shah Versus The State], [2024 YLR 628 Shazam Ali Versus The State].
Just imagine a person who has spent 15 years in the jail waiting for execution and justice and later on he was told that his sentence was wrong, null and void. What a level of injustice this is??
Conclusion:
Let us take an example of crime like murder, rape or any other which has a capital punishment. These crimes happen because of structural powers and has very deep and strong roots in our society. These crimes will continue to happen unless those underlying causes can be addressed. Executing a single person is not enough to eradicate these crimes from our society. As I mentioned above, the famous Zainab Murder Case, this incident happens in 2018. Many protests were conducted for the executing of the culprit. He was executed by hanging on 17th October 2018. Does the crime end? No, it is still happening. I will give this example for the murder case also. So, let us not focus on the execution. We should ask our leaders that what measures are they taking to address those underlying structural powers from which the crime happens.
So, death is not the punishment if we understand it in the eye of human rights law. Execution is not decreasing crimes. The right to life with dignity is the basic right of every person in any corner of the world. Keeping the person/culprit in the death row for many years in a worse condition making him mentally unstable, depressed and deteriorating his mental health is the violation of basic human right. Making the person/culprit waiting for his execution and then his appeal which is so expensive and time taking process is the violation of basic human right which is a right to life with dignity.
As I mentioned above, the discrimination between rich and poor in awarding the death sentence is again the violation of basic human right which is right to life with dignity. Instead of awarding them death sentence, we should teach them the basics of crimes and their impact on the society. Government should build state level institutions to recognizes such crimes. Government should take measures to address the social and economic disparities that are cause of the crimes.
References:
Black Law Dictionary
Constitution of the Islamic Republic of Pakistan 1973 by Mehmood
Magna Carta
ICCPR
UDHR
2024 YLR 2393 Shahzad Ahmed Shah Versus The State
2024 YLR 628 Shazam Ali Versus The State
Mst. Safia Bano and others Versus Home Department Government of Punjab through Secretary and others, [PLD 2021 SC 488]
PLD 2005 S.C. 193
PLD 2012 S.C. 1
Author: Laraib Mushtaq Advocate
