CAN LEGAL FICTION OVERCOME RELIGIOUS AND CONSTITUTIONAL LOCKS?
DEATH PENALTY: A PAKISTANI PERSPECTIVE
BY
Tipu Salman Makhdoom*
Abstract:
Death Penalty
is not really an issue in Pakistan. Mostly because it’s an ideological state, Constitutionally
having a religion which clearly provides for death penalty. In addition to this
ideological check, there is also a Constitutional check. Constitution of
Pakistan states that all laws need to confirm to Islam and Supreme Court of
Pakistan says that among others, this part of Constitution constitutes the
‘Basic Structure’ of the Constitution which cannot be amended, even by adopting
the procedure that Constitution itself provides for its amendment!
After making a
jurisprudential argument in favour of abolition of death penalty, this paper
explores the ideological and Constitutional checks in Pakistan legal system
locking the death penalty in the system. In the end, an argument is made that
in addition to taking the political course, a legal path can be taken to
abolish the death penalty in Pakistan, without violating the Constitutional
check; legal fiction.
I. INTRODUCTION:
Resumption of death
penalty executions and confirmation of death penalty by High Court, in high
profile case of blasphemy accused Asia Bibi has once again heightened the
controversy that really started 7 years ago when Pakistan government imposed a
moratorium on death penalty; whether to keep capital punishment on the Pakistan
statute book?[1]
History of
Pakistan would have been different had it abolished Death Penalty before 1979.
Zulfiqar Ali Bhutto[2], the
democratically elected Prime Minister of Pakistan, who was hanged in 1979 in a
politically maneuvered decision,[3]
would have been released after review of his case in 1988, when his ousting dictator
General Zia ul Haq perished in an air crash and his daughter was elected as
Prime Minister. Many people claim that Bhutto would have been to Pakistan what
Nelson Mandela had been for South Africa and what Aung San Suu Kyi is for
Myanmar; if, and only if, Pakistan did not have the harsh, brutal and
irreversible penalty of killing people officially i.e., under the authority of
law!
This Article
looks at different philosophical, moral and utilitarian aspects of death
penalty and sees whether it goes with our current values of collective
conscience? Death penalty in many countries is awarded for a number of
different crimes ranging from murder to blasphemy to rape. As a test case, this
Article analyzes the justifiability of death penalty in cases of murder only.
If death penalty cannot be justifiably awarded for murder, it cannot possibly
be awarded for any other crime.
A large
majority of Pakistanis believe that death penalty is not only a just punishment
for murder it has most utility in terms of utility. They argue passionately
that in our socio-economic conditions it is the only option available to keep
an effective check on the homicide rate. It is the only punishment which
creates special deterrent effect in the minds of the potential future
murderers. Moreover, it is the only mode by which victim’s death can be
retributed.
Relying heavily
on the notion that knowledge is by no means a product of presumptions[4]
and that truth lies in the mind of the beholder,[5]
this paper analyzes viability of the major arguments in favour of retaining death
penalty as a possible punishment for murder. Going one step further, the paper
argues that legal, ideological and Constitutional obstacles in abolishing death
penalty from Pakistani jurisprudence can be overcome by utilizing the age old
tool of legal fiction.
To put the
argument in perspective, the next section will take a glance over the creation
and development of the concept of punishment in general.
II. PUNISHMENT
& ITS EVOLUTION:
Conceptually
speaking, punishment is a society’s reaction to crime.[6]
It used to be official revenge on victim’s behave which later developed into a
means to keep society safe of criminals: by reformation, isolation or
execution. Claiming its justification originally from moral values, punishment,
crossing the domain of divinity, landed in the realm of law. Law has its roots
in the collective value system of the society.[7]
In the form of written word of statutes and judicial decisions, law is the
executed expression of society’s political decisions based on its collective conscience.
But translation of political decisions of the society into executable legal decrees
is not the only mode in which law functions. Many a times law can be used as a
tool to bring change in social values. When some of society’s social values go
rotten and require consciously engineered change, people who are placed by the
society at the helm of its affairs are responsible to evaluate situations &
issues rationally, and take pragmatic decisions leading to practical solutions,
often violating and in the long run altering the social morality.
Historically, institution
of punishment came into being with the formation of first formal societies; the
tribes.[8]
Benefits of keeping people together in shape of a tribal society gave rise to
the need for social order. Backed by religion, institution of punishment became
the foundational basis of tribal community’s peace & order. In those
primitive societies, barring few punishments which prescribed on the basis of
utility, rest were inflicted indirectly (by allowing the victim party to take
its revenge) and were justified on the basis of retribution.[9]
Gradually, with the advent of modern society and development of social contract
theory, state usurped complete authority of deciding the quantum and mode of
punishment along with the sole responsibility to inflict it. And so the
rationality seeped in criminal law.[10]
Admittedly, the
modern criminal legal system is not an end in itself but is simply a means to
achieve peace and order in a society.[11]
In contrast to ancient legal systems which were mainly based on the concepts of
divine guidance and retribution, modern legal systems’ objectives of criminal
law are to prevent the commission of crime, discouragement of the potential
criminals and isolation of criminals from society in order to keep the
community safe of them.[12]
Thus, in terms of utility, punishments can aim for deterrence, isolation,
reform, retribution or a combination of above.[13]
Converging the
argument from justification of punishments in general to the justification of
death penalty, next section is going to analyze the viability of the argument
justifying state’s right to kill its citizens under the authority of its own
laws.
III. PHILOSOPHICAL
JUSTIFICATION OF STATE KILLING:
Even on the
philosophical plane, it is very difficult to justify a state’s right to kill.
The notion of a state having a right to kill provides no logical support to the
notion that a state is right in killing.[14]
Arguing otherwise is a sure trap to Petitio Principii. State gets right to kill
simply by declaring so. The only condition on this unbridled power of the state
is that this declaration should be made following the prescribed law making
procedure. Thus a state would claim its right to kill as legal and valid if
declaration to this effect has been made in accordance with the legal procedure.
Therefore this killing right, although would have ample support of procedural
compliance, would not be able to claim any moral or rational justification per
se. The fact that a statute has been enacted by following the prescribed
procedure correctly cannot justify the claim that it ‘should’ have been enacted
in the first place.[15]
So state’s justification to kill cannot be derived from legality or validly of
its ‘death statutes’. It will have to be looked for in the depths of ethics and
rationality.
One argument
equates state and its citizen thereby holding that destroying state’s peace and
order amounts to killing it; which grants the state a right to kill such
criminal citizen in self defence. Even without going into the fallacy of
equating state with its citizen, it is evident that an attempt to level state’s
right of granting death penalty with a citizen’s right of self defense is
naïve, to say the least. Citizens are given right to kill in self-defense on
the basis of special circumstances where a citizen’s life comes under serious
and imminent threat of being taken without the authority of law, where there is
not enough time for law to take appropriate action, and where there is no
alternative except to kill the attacker in order to save a life being taken
unlawfully. Although a murderer violates the laws of the State and thus, in a
sense, attacks its existence, neither such action poses any serious and
imminent threat to State’s existence nor is there any shortage of very feasible
alternatives.[16]
A powerful
argument of retentionists’ is based on retribution; claim that emotional
satisfaction of the victim’s family, by ding unto the criminal what he did unto
the victim, is essential to attain social peace and ideal justice. Now if it is
claimed that law wants to equal scores with the murderer on the basis of
tit-for-tat, ideally speaking murderer should be awarded death penalty in
exactly the same manner, however brutal and inhuman that may be, in which he
had killed the victim.[17]
But for that, civilization is claimed to have grown too mature.[18]
A heavy weight view against retaining death penalty is that not only it
psychologically places ‘killing in retribution’ on the legal plane,[19]
it also lowers the moral code of the society resulting in extinguishing of community’s
respect for life and brutalization of collective values of the society.[20]
Though
punishment has always been a social necessity, and still remains so; death
penalty, although has always been an essential, rather popular punishment in
ancient legal systems, is no more essential. Proportionality and utility of
punishment are at the base of contemporary legal systems; that is why mens rea
is an essential element in modern concept of crime. It is utilized in order to
objectively ascertain the intention and circumstances of the crime committed, so
that accidental criminals can be suitably punished, mainly as a warning to them
as well as others, and then assimilated back in the society while the habitual trouble
makers can be marked and quarantined. Ancient mode of permanently getting rid
of the dangerous trouble makers has always been execution. However, one rather
humane way of keeping the society safe and free of trouble makers is to
sentence them to long imprisonments, which can be made to last, say, till the
natural death of the convict. In this respect, however, the argument for
abolition of death penalty is not based on the ground of granting lesser
penalty, since very long imprisonments, like the ones lasting till the natural
death of the prisoner or comparable, can be anything but punishments ‘lesser’
than execution. The case for abolition of death penalty is also not based on
the premise of having any kind of sympathy with the murderer, rather it is
based on the concept that death penalty is no longer consistent with our
self-respect.[21]
Recognition of
global value against retention of death penalty is evident from the fact that
more and more countries are abolishing it. Since the start of this millennium,
at least 18 more countries have abolished death penalty from their law codes.[22]
Moreover, even Rome Statute of the International Criminal Court and the Unites
Nations Security Council resolutions establishing the International Criminal
Tribunals for former Yugoslavia and Rwanda, though established to try most
heinous crimes, do not allow infliction of death penalty on the convicts.[23]
Death penalty
is a punishment which is irreversible immediately and completely and in case of
conviction of an innocent, if discovered later on, there is no way of undoing
the wrong, even in part. It was precisely for this reason that in the year
2003, Governor Ryan of the State of Illinois in the United States of America
imposed a moratorium on the death penalty after discovering that 13 of the 167
convicts on the death row were innocent.[24]
By any standard, there is more than fair chance that our system of criminal
justice will produce a much better ratio of innocent convicts, if proper audits
are carried out.
We do not allow
abortion at any stage of the conception, although we are not sure at which
stage life begins in the fetus, because we consider human life too sacred to be
terminated unnaturally by humans. We do not allow euthanasia, although we may
be certain that there is no chance of recovery and that patient is undergoing
an agonizing torture, again because we consider human life too sacred. But we
do not consider human life sacred enough to abolish death penalty and opt to
continue to kill people, calculatedly and legally, basically for two reasons:
firstly to do unto them what they have done unto others, and secondly, to
‘scare’ others. The chances of innocents being executed in this process by
mistake are considered ‘collateral damage’!
After analyzing
the concept of death penalty from philosophical angle and seeing if state can
justifiably claim to have a right to kill its rowdy citizens, the next section
will look at the issue empirically and will examine whether the experimental
data supports the argument that death penalty in fact plays a role in lowering
the homicide rate?
IV. UTILITY
OF DEATH PENALTY:
Death is one of
the oldest punishments in legal history. However, this reminiscence of the past
is still very rampant in the modern day world. By the figures covering period up
to 2010, criminal justice system of 102 nations of the world have death penalty
for different crimes while 95 nations have abolished it.[25]
This means that our globe, in terms of number of states, is roughly divided
equally on the question of justifiability of death penalty. So here is a live
and a lethal issue on which the world is divided equally. This sounds
challenging; both ways!
Modern day
proponents of death penalty invoke all the aims of punishments in their favour;
all but one—reformation.
First of all it
is claimed that death penalty is ‘the’ most effective deterrent against a
crime, and thus is justified as an appropriate punishment for heinous crimes
like murder. Thus, on the basis of utility it is the most useful and beneficial
punishment for the greatest good of the greatest number of people in the
society. This argument, strong as it is, has one inherent weakness; it is based
on a premise that can be verified empirically. And so was it done, over and
over again. The hypothesis: “Does death punishment provide a better deterrent
to murder than long punishment?” was repeatedly verified by empirical data.[26]
Apparently
there were some states imposing death penalty which had higher murder rate than
those which had abolished it.[27]
Moreover, many states in USA abolished death penalty and after few years
re-introduced it. Therefore specific empirical studies were conducted on the
reliable and comprehensive data. All the changes in homicide rate after
abolition of death penalty and also after its re-introduction were duly
recorded and scientifically studied. However, no deterrent effect of death
penalty on homicide rate could be detected.[28]
Even a niche argument that death penalty has special deterrent effect in cases
of murder of police and prison staff, failed the scientific test.[29]
A critical
study of data and methods used for extracting and verifying empirical evidence
in support of deterrent effect of death penalty on homicide rate was conducted
by Donohue and Wolfers concluding that death penalty is not a major influence
on the murder rate of a state.[30]
In 1972 Federal
Supreme Court of United States of America held that[31]
death penalty was violative of U.S. Constitution. The view was over ruled by
the Supreme Court in 1976. This period of unconstitutionality of death penalty
provided remarkable opportunity to the researchers to collect data and
scientifically study the deterrent effects of death penalty on murder rate.[32]
Despite performing thorough statistical studies on the data for the period
before 1972, when the death penalty was legal, from 1972 to 1976, when the
death penalty was abolished, and for the period after 1976, when the death
penalty was re-instated in those states, no evidence could be found to support
the hypothesis that death penalty is more effective deterrent than long
imprisonment sentences.[33]
This scenario,
however, is not United States specific. For instance, Canada abolished death
penalty in 1976 and in next 25 years its homicide rate fell to almost half. On
the other hand, as of year 2000, homicide rate of USA, where in majority of
states death penalty is applicable, was almost 3 times higher than Canada. Not
only that, but European Union countries, where abolition of death penalty is a
pre-condition to the join the Union, have much lower crime rate than USA.[34]
A very
persuasive argument by the third world countries in favour of retaining death
penalty is the difference of socio-economic conditions between developing and
the developed nations. It is argued that due to difference of such
socio-economic conditions, other penalties may have proved to be sufficient
deterrence in developed nations but in developing countries death penalty is
the only effective deterrent.[35]
Nevertheless, in support of this argument no material from any country of the world
including the developing ones, could ever be produced.[36]
Arguing for
abolishment of death penalty does not mean that penalty for murder is to be
made softer or lesser.[37]
It is just a question of change of mode of punishment without compromising on
its quantum, harshness or proportionality. As a matter of fact, the actual
deterrence is the certainty in the mind of the criminal that he will be
arrested, convicted and punished promptly; not that the punishment prescribed,
however remote the possibility of its actual infliction may be, is harsh.[38]
Thus it has been concluded by United States of America’s National Academy of
Science that 10% increase in the probability of arrest and conviction would
lower twice as many crimes as would be lowered by a similar increase in the severity
of punishment.[39] Moreover,
when state kills a person to deter others, it uses a human being as a tool to
achieve its administrative goals. Such a calculated killing in cold blood, to
serve state’s administrative objectives, strips the offender of his humanity
and lowers the dignity of a human being to the scale of a mere tool.[40]
A valid
question arises that if the empirical evidence is so clear that death penalty has
no special deterrence against crime, why is it so difficult to convince peoples
and authorities to abolish it? US Presidential election campaign for the year
2000 may shed some light on this phenomenon. In the earlier part of the year
2000, US Attorney General Janet Reno stated, “I have inquired for most of my
adult life about studies that might show that the death penalty is a deterrent,
and I have not seen any research that would substantiate that point.”
However, later that year, in Presidential debates, George W. Bush stated that
death penalty “saves other peoples’ lives.”[41]
Thus the political questions which need to be settled by public through vote
are still settled by popular slogans and presumptive beliefs, without least
reference to the empirical evidence or logical arguments.
Another
argument in favour of retaining death penalty is retribution. Vengeance is one
of the basic human instincts, much like love, they say. Therefore, in order to
satisfy the basic emotional need of the victim’s family, punishment should be
inflicted on the criminal to avenge the crime. In case of murder, therefore,
vengeance demands that murderer should be murdered to keep the scores even.
Powerful though it is, this argument confuses positive and negative human
instincts. In addition, it ignores thousands of years of development of human
conscience, social values and human civilization. Death penalty is a fossilized
punishment of an ancient system of criminal administration of justice based on
vengeance. Civilized justice has arisen above this outmoded and brutal notion
of retribution by adopting symbolic yet proportional punishments[42]
which need not repeat the crime for doing complete justice.[43]
The point here
is not to deny the righteous anger of the murder victim’s family or abhorrence
of society for this heinous crime, but to stress that capital punishment is not
the only appropriate way available to the society for expression of its moral
outrage at this vile crime. We neither put out the eyes of a criminal who has
blinded another nor sentence the rapist to undergo rape. “The state does not
need to engage in the cold and calculated killing of murderers in order to
express moral outrage at their conduct. A very long prison sentence is also a
way of expressing outrage and visiting retribution upon the criminal.”[44]
Although
retribution does not make a powerful argument for the biblical notion of an eye
for an eye, it does make a good case for a proportionally harsh sentence. But
an argument for abolition of death penalty is never based on getting soft on
the murderer notion. It will be hard to argue that a sentence of 100 years of
rigorous imprisonment would in any way be less harsh than death penalty, for
instance.
Lastly comes the
case of isolation. The oldest argument employed in support of death penalty by
the ancient tribal societies, other than God’s injunction, was hygiene.
Offenders were considered filth to be permanently removed from the society. In
times when human intellect had not created institution of prison, death penalty
would have been the only way to attain this goal. However, very long prison
sentence can provide a viable alternate to achieve this end in the modern day
system of administration of justice. A need to permanently eliminate a murderer
from society can be achieved by putting him in prison, permanently.
After dealing
with conceptual basis of the argument, and before indulging into the issues
involved in the Pakistani jurisprudence of capital punishment, next section
will take the overview of death penalty jurisprudence in European Union and
United States of America.
V. EUROPEAN
UNION AND UNITED STATES OF AMERICA:
In Pakistan, it
is a general perception that Western world is itself convinced of the utility
of retaining death penalty but push third world countries, especially the
Islamic countries and specifically Pakistan to abolish it, in order to create
anarchy therein. Therefore it would be useful to see what exactly is the stance
versus situation of the European Union and specially United States of America
to understand whether they are justified in lobbying for abolition of death
penalty or are they simply using it as a tool to put pressure on other
countries for some covert purposes?
The position of
European Union is clear; it encourages states to the point of pushing for
abolition of death penalty because it has abolished it on the ground of being
immoral, brutal and below human dignity.[45]
The position of
United States of America, however, is complicated. While USA campaigns for
abolition of death penalty, in majority of its constituting states[46]
death penalty is legal. In USA authority to legalize death penalty or to
abolish it lies with the legislatures of its federating states. Only condition
on them is that it should not violate any provision of federal Constitution. A
question came up before the federal Supreme Court of USA in 1972 as to whether
the imposition of capital punishment amounts to cruel and unusual punishment,
which has specifically been prohibited by the Constitution of USA.[47]
Holding that death penalty was an awesome punishment, US Supreme Court held it
violative of the federal Constitution in the manner in which it was being
executed.[48] However,
in the 1976 case[49]
US Supreme Court, in the background of a nationwide reaction to the Furman Case,[50]
over-ruled that decision and held that if a state decides to legalize death
penalty with some procedural checks, then the death penalty will not be
violative of the US Constitution.[51]
While political support shown by the majority of Americans in favour of
retaining death penalty is often cited as the major factor behind US Supreme
Court’s over-ruling Furman Case[52]
in its Gregg judgment of 1976,[53]
there is a strong possibility of another very dangerous factor, and that is
mis-representation of empirical evidence.
When in its
1972 Furman decision[54]
US Supreme Court held that the then existing state statutes providing death
penalty were violative of US Constitution, Isaac Ehrlich published his analysis
of national time series data claiming that his analysis proved that each death
penalty saved 8 lives by creating a very special deterrent effect which no
other punishment was able to produce. Solicitor General pleading in US Supreme
Court next year, for a decision in favour of death penalty, in Gregg’s case[55]
did cite Ehrlich’s analysis as a piece of scientific evidence proving utility
of death penalty. It is claimed that this must have a persuasive effect on the
Supreme Court. However, as the situation unfolded, Ehrlich’s analysis was found
incorrect and this led to US National Academy of Sciences to issue its 1978
report clarifying that there was no valid empirical evidence to support special
deterrent effect of death penalty.[56]
Although all the empirical evidence collected by the US intelligentsia points
towards the non-existence of any special deterrent effect of death penalty and
it is making a case for abolition at home and abroad, the popular belief there
still is that it does. So death penalty in US has two faces: popular and
intellectual. While the popular belief in US is still faithful to the divine
utility of the biblical notion of an eye for an eye, the rationally considered
opinion is striving hard to claim its place in the social horizon. In the back
drop of popular political rhetoric, to say the least, this sounds familiar in
Pakistani situation as well.
The next
section will now take a look at the law and the facts and figures in Pakistan
in relation to death penalty. The arguments that are advanced by the
fundamentalist/conservative faction of religious scholars in favour of death
penalty will also be examined before taking up the task of suggesting the
possible ways to wriggle out of the situation without really getting into it.
VI. PAKISTAN
& ISLAM:
In 2006, due to
negligence of the registrar’s office, appellate court’s orders of suspension of
death penalty of a convict were not transmitted to the jail authorities. The
man was hanged from the neck till death while the court was preparing to check
the genuineness of his guilt.[57]
The country in which this poor man was hanged mistakenly, is Pakistan; a
country which ranks among the countries of the world with highest death penalty
awarding ratio.[58]
As of June,
2012, some 8,500 persons were on the death row in Pakistan.[59]
While at the time of creation of Pakistan in 1947 only homicide and treason
were punishable with death; today there are more than two dozen crimes which
carry death penalty, including sabotage of railway system,[60]
blasphemy, stripping a woman of her clothes in public, etc.[61]
This is a country which, except for few procedural and formal amendments, has
not changed the basic structure of the legal system that it inherited from its
colonial masters.[62]
Pakistani society has been criticized even otherwise for not showing any
substantial progress since its independence some 7 decades ago.[63]
A country adversely affected by botched police investigations and unfair trials[64]
where only 1.5 murder trial judges are available for 100,000 people,[65]
there always is an extremely high probability of miscarriage of justice. Yet,
in Pakistan, pleading for abolition of death penalty is not only difficult,
it’s actually dangerous. Pakistani pro-death penalty voices, which are often
aggressive and usually fundamentalist, invoke Islamic law, retribution and
deterrence, in order of priority, as the justification of penalty of death.
While the
rationality of historical trends indicates that a considerable portion of Islamic
law was developed very progressively by the Islamic scholars[66]
on utilitarian basis, very pragmatically,[67]
it was only in later centuries that religious fanaticism seeped in and the
whole system based on dynamism and innovation was frozen in the medieval space-time.
Today there certainly is a dire need to develop Islamic law on modern lines as
is being done in some other Islamic countries,[68]
but such trends, arguments and needs are conveniently denied by many in
Pakistan, for the most part on the strength of religious fundamentalism. Even the
argument that bulk of Pakistani law has been very progressively developed and
the trend should be continued, for instance, where it provides prison sentence
for theft while in Islamic law punishment for theft is cutting of a hand,[69]
falls on deaf ears. Their simple yet powerful rhetoric is that biblical notion
of an eye for an eye is part of Islamic law which, according to the
Constitution,[70]
is the supreme law of the land. Thus death penalty for a murderer is ordained
by God and God’s injunction is based on the utility of retribution and
deterrence. Although it is not only difficult, but is actually dangerous in
Pakistan now-a-days to question the religious fanatics’ distorted argument of
the divine wisdom, yet there is a very strong and persuasive logic against this
age old rhetoric of ideological fundamentalism. In Islamic law, in case of
murder, there is a possibility for the murderer of paying monetary compensation
in lieu of death penalty. This possibility available for a rich murder convict
of buying out his life and in fact all the punishment and going scot-free the
moment he pays the blood money, destroys the fanatics’ arguments of both
retribution and deterrence[71]
and should have forced them to seriously consider the possibility of replacing
death penalty with some other proportionate penalty. But the dead-end response from
this quarter is always based on the notion of religion being a phenomenon
beyond and above reason.
The next section
will consider the ideological as well as constitutional checks that are the
actual jurisprudential challenges to abolition of death penalty and will also
suggest a possible solution to overcome these checks by differentiating legal
death from medical death and using legal fiction to replace medical executions
by legal executions.
VII. LEGAL
FICTION—MEDICAL DEATH VS. LEGAL DEATH:
In Pakistan
death sentence cannot be abolished easily even if it is accepted that it should
be. There are checks stronger than the ones which can be overcome by simple
legislation; Constitutional and ideological checks. The Preamble of the
Constitution[72]
makes is abundantly clear that the Sovereignty in Pakistan’s legal system belongs
to God alone. This settles the ideological formation providing the fundamental
basis to the Constitutional structure of this first modern ideological state of
the world. Not only this ideological basis is expressed in its name viz.,
Islamic Republic of Pakistan[73]
but also in the operative Articles of its Constitution. Thus Article 2-A of the
Constitution makes the concept and claims enshrined in the Preamble of the
Constitution as integral part of the Constitution.[74]
Article 2 sets it abundantly clear that Pakistan is not a secular state but has
a religion. Consequently, Constitution declares that Islam is the State religion
of Pakistan[75]
while it also defines who is a Muslim and who is a non-Muslim.[76]
The matter does not end here. Seven years after enactment of the Constitution,
it was amended and a precise and very elaborate mechanism was added in the
Constitution, by creating a special limb of higher judiciary with specific and
exclusive jurisdiction to declare all the laws which are in conflict with Islamic
laws as null and void and non-existent.[77]
Since death penalty is an integral part of the Islamic law, its abolition by
simple legislation will violate the express provisions of the Constitution. So
in Pakistan death penalty cannot be abolished simply by amending statutes, it
requires Constitutional amendment. However, this problem cannot be solved by
amendment of Constitution even as such an amendment will violate the basic
structure[78]
and the very ideological and foundational basis of the Constitution. Supreme
Court of Pakistan has held that the Constitution of Pakistan is more than a
random, or even serial and somewhat systematic compilation of articles; rather it
is not only a structured document but a document based on a well defined
structure. One integral and a significant part, a salient feature, of this structure—the
basis structure of the Constitution—comprises of different articles spread all
over the Constitution imparting Islamic theme therein. And this ‘salient
feature’ cannot be amended by the assembly even if it follows the procedure
provided in the Constitution itself for its amendment. The Supreme Court has
held this and this is good law in Pakistan. Now this ‘is’ a problem!
Such problems
arise seldom from the internal conflict in a legal system but usually when
there is a conflict between a dogmatized legal system and the development of
dynamic collective conscience beyond that dogmatized system. It is the problems
like these that have been arising in different legal systems of the world, challenging
the jurists in history and shook them out of their deep slumbers of following
the traditions and forced them to come up with new and innovative responses. Such
had always been the out of the box responses aimed at meeting the social
requirements which the legal system of the time had failed to come up to. One
such innovative response had been tackling of such complex and insurmountable problem
by creating legal fictions.
A legal fiction
is simply a false statement recognized as having utility.[79]
Thus it were somewhat similar situations which led the jurists to create legal
fictions like a distinct legal entity of a corporation where a non-entity gets
entity by sheer force of law. Similar is the English concept of adoption where
legal fiction replaces adopted parents as natural parents. Law takes control of
the situation where it decides to create legal fiction for the betterment of
the society and designs the scenario, not according to reality, but in
accordance with socio-legal requirements. Thus, law creates an artificial
distinction between natural person and legal person and declares to have
granted the status of legal person to a corporation by operation of legal
fiction. Same can be the case with the concept of death.
One
constructive way of using legal fiction can be to distinguish between medical
death and legal death and replacing all death penalties with legal deaths
instead of medical deaths. This should not be too fictitious in the face of
modern thinking where there is a dire need to abolish old concepts of death and
come up with new ones in the backdrop of modern scientific and technological advances
and controversies.[80]
A recent study in the adequacy of traditional definitions of medical death has
concluded that in view of development in medical science a statutory definition
is essentially required to replace the traditional definition of medical death,
which is no more adequate amidst modern views of life and death.[81]
A very convenient way of grasping the concept is by visualizing coma patients.
A person in coma, although is alive medically, is practically dead. Similarly,
a person locked up in a cage for the rest of his life can be seen as
essentially, or to look at it more precisely, socially dead! This will mean
that law will consider a certain kind of limited rights to life as a person’s
legal death, which can be awarded and executed without killing that person
biologically. Thus, if life of a person, in jail, is termed no-life legally, an
imprisonment sentence till his natural biological death becomes his legal death.
So the day a person is put in prison never to be taken out alive, becomes the
day of his legal death. Such creation of a legal fiction of ‘legal death’ to
replace ‘medical death’ for the purposes of punishment will solve both angles
of the challenge. As Constitutional frame work does not allow abolition of
death penalty, it will not be abolished and deserving convicts will continue to
be awarded the penalty of death; penalty of ‘legal death’ to be precise. And
since no human life will be terminated by the state as a punishment, there
neither will be any degradation of collective values of the society nor will
there be any possible innocent executions. If otherwise false statements can be
legally taken as true in order to safeguard commercial and social relations,
why can’t same thing be done in order to save precious human lives?
VIII. CONCLUSION:
From the brutal
ancient concepts of crucifying people in order to give them exemplary
punishments, human intellect grew up and matured. The basis of social relations
developed from narrowly perceived personal self-interests to collective good of
the greatest possible number of people. The basis of law out grown the divine wisdom
and entered the era of utilitarian laws. Punishments also left the times of
emotional satisfaction and personal vengeance and entered the period of
pragmatism. Man started asking if it is alright for a non-victim party like
state, to take revenge as an agent? And even if it is alright, is it
justifiable to kill a human being on that account? Then the question of scaring
potential law breakers by killing people arose. People started thinking if it
is just to kill one person to scare another? And further questions were asked; Does
killing of a murderer by the state has some special deterrent effect as
compared to alternate but proportionally harsh punishment? And it was also
asked if the only way to keep a trouble maker out of a society is to murder him
under the authority of law?
Philosophical
deliberations were made on these issues for centuries and in the last several
decades, scientific investigations were also conducted to see the empirical
evidence supporting these questioned concepts and purposes. The answers that
came are over whelming and against death penalty. The question then turned to
chalking out some strategy to get the society out of the clutches of its
fossilized legal and moral concepts, which it failed to do in its own course of
intellectual maturity, and get the death penalty abolished in law. This proved
to be a tricky task. While in modern western secular states it requires only a
public mobilization and convincing majority of voters, in religious and
ideological states like Pakistan it proved to be a task much more difficult.
Here, even if the dominant public opinion is developed in favour of abolition
of death penalty, it cannot be expressed and executed legally without hitting
the very foundational and ideological structure of the state. Thus a technical
solution is prescribed. The solution is to use the concept of legal fiction to
make a distinction between the concepts of medical and legal deaths. This will
serve two purposes: first, it will provide a very harsh punishment to a
murderer which will not only satisfy the vengeance needs of the victim’s family
but will also provide enough deterrence to the potential murderers, and second,
it will save the brutality of state calculatedly killing a human being under
the authority of law. Not only will this stop the official murders at the hands
of state, it will be done without violating the ideological basis of the
ideological states. Among many other purposes that it will serve, will be a
possibility of undoing a wrong committed to an innocent convict, as no
realistic system of administration of justice to date ensures error free
convictions.
[1] (a)-Daily the
Dawn, dated December 17th, 2014. Available at: http://www.dawn.com/news/1151408/nawaz-removes-moratorium-on-death-penalty. Accessed on
20.04.2015.
“ISLAMABAD: Prime Minister
Nawaz Sharif on Wednesday approved the removal of moratorium on death penalty
after the [Taliban] carnage in Peshawar [School] killed 141 people [mostly school
boys].”
(b)-Daily the Dawn, dated October 17, 2014.
Available at: http://www.dawn.com/news/1138402. Accessed on 05.11.2014.
“LAHORE: The Lahore High Court (LHC) on Thursday upheld the death
sentence of a Christian woman convicted of blasphemy four years ago, as her
lawyers vowed to appeal.
Asia Bibi, a mother of five, has been on death row since November 2010 after she was found guilty of making derogatory remarks
about the Holy Prophet Mohammed (peace be upon him) during an argument with a
Muslim woman.
Two high-profile politicians – then Punjab governor Salmaan Taseer
and minorities minister Shahbaz Bhatti – were murdered in 2011 after calling
for reforms to the blasphemy law and describing Bibi's trial as flawed.”
(c)-Daily the News
International, dated November 4, 2014. Available at: http://www.thenews.com.pk/Todays-News-13-33907-Moratorium-on-death-penalty-causing-rise-in-crime-terror.
Accessed on 05.11.2014.
“ISLAMABAD: The PML-N-PPP
appeasement policy towards convicted terrorists, target killers, rapists and
those involved in other heinous crimes because of the continued moratorium on
the death penalty is said to be the major cause for the rise in major crimes
and terrorism in the country.
Rangers, police, other
law-enforcement agencies and even the judiciary have been repeatedly calling
for an end to the moratorium on the death penalty but for the past six years
neither the previous PPP government nor the present PML-N government lifted the
informal ban placed in September 2008.
This moratorium on the death
penalty is not only in violation of the law, but is also un-Islamic. The
security forces personnel are of the firm opinion that this moratorium has
badly hurt the much-needed factor of deterrence against crime in Pakistan,
where heinous crime is on the rise.”
[2] Father of former Pakistani
Prime Minister Benazir Bhutto.
[3] International Federation for
Human Rights & Human Rights Commission of Pakistan, Report Mission of
Investigation, Slow March to the gallows, Death Penalty in Pakistan,
2007, 17. Available at: http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm.pdf/. Accessed on: 17th
August, 2014.
“The
most famous death row inmate, former Prime Minister Zulfiqar Ali Bhutto, was
executed on 4 April 1979 on the charge of conspiring to murder a political
opponent, after what was widely held to be an unfair and politicized trial.
Bhutto’s appeal to the Supreme Court was rejected by 4 judges out of 7; one of
the 4 stated in hindsight that the death penalty should not have been awarded,
and that he regretted his decision to condemn Bhutto to death, which was due
mainly to the massive pressure he had been subjected to.”
[4] Steven Connor, Postmodernist
Culture, An Introduction to Theories of the Contemporary, Blackwell, 1989
reprint 1994, 3,
“Knowledge,
it is often claimed, can only be gained and enjoyed about what is in some sense
over and done with.”
[5] Slavoj Zizek, Living in the
End Times, Verso, 2010, xiv,
“Though
one may be tempted to oppose these perspectives—the dogmatism of blind faith
versus an openness towards the unexpected—one should nevertheless insist on the
truth contained in the second version: truth, as opposed to knowledge, is, like
a Badiouian Even, something that only an engaged gaze, the gaze of a subject
who “believes in it,” is able to see.”
[6] Edwin H. Sutherland &
Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978) 301.
[7] Al Gore, The Future, WH
Allen, 2014, 363,
“Behaviors
that bring rewards become more common. Those that don’t diminish. The elements
of our nature that are activated by rewarded behaviors gain strength. Social
groups establish values that reflect both the behaviors they wish to reward and
those they want to discourage. These values become embedded in tribes,
communities, nations, economic systems, institutions, and cultures.”
[8] Supra, note 6, 305-308.
[9] Katherine S. Williams, Textbook
on Criminology, 3rd ed, Blackstone Press Limited, 1997, 1.
[10] Ibid, 1.
[11] J.C. Smith & Brian Hogan, Criminal
Law, Butterworth & Co. (Publishers) Ltd, 7th ed, 1992, 3.
[12] Ibid, 3.
[13] Ibid, 4.
[14]Hugo Adam Bedau, Death is
Different: Studies in the Morality, Law, and Politics of Capital Punishment,
Boston, Northeastern University Press, 1987, 46-63. Quoted in Joel Feinberg
& Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 1975,
4th ed, 1991, 778.
[15] Ibid, 778.
[16] Ibid, 781-782.
[17] Ibid, 786.
[18] The State Vs. T Makwanyane
and M Mchunu, Constitutional Court of the Republic of South Africa, Case
No. CCT/3/94, decided on 06.06.1995, Para-233. Available at: http://www.saflii.org/za/cases/ZACC/1995/3.html. Accessed on: 17th August,
2014.
[19] John Lamperti, Ph.D., Does
Capital Punishment Deter Murder? A Brief Look at the Evidence, 2010, 8.
Available at: https://www.math.dartmouth.edu/~lamperti/my%20DP%20paper,%20current%20edit.htm. Accessed on: 17th
August, 2014.
[20] Furman Vs. Georgia, United
States Supreme Court, 1972, 408 U.S. 238 (1972). Quoted in Joel Feinberg &
Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 1975, 4th
ed, 1991, 766.
[21] Supra, note 18, Para-189.
[22] International Commission
against the Death Penalty, The death penalty and the “most serious crimes”,
A country by country overview of the death penalty in law and practice in
retentionist states, January, 2013, 7. Available at: http://www.icomdp.org/cms/wp-content/uploads/2013/02/Most-serious-crimes_final_6Feb2013.pdf. Accessed on: 20th August,
2014.
[23] Supra, note 3, 10.
[24] Ibid, 9.
[25] David Garland, Why Does the
U.S. Have Capital Punishment? Published 2012, 2. Available at: http://photos.state.gov/libraries/amgov/133183/english/P_You_Asked_WhyCapitalPunishment_English.pdf. Accessed on: 17th August,
2014.
[26] Supra, note 19, 1.
[27] Ibid, 3.
[28] Ibid, 4.
[29] Baily & Peterson, Murder, Capital
Punishment and deterrence: a review of the evidence and an examination of
police killings, Journal of Social Issues, 1994, 53-74. Quoted in John
Lamperti, Ph.D., Does Capital Punishment Deter Murder? A Brief Look at the
Evidence, 2010, 5. Available at: https://www.math.dartmouth.edu/~lamperti/my%20DP%20paper,%20current%20edit.htm. Accessed on: 17th
August, 2014.
[30] John J. Donohue and Justin
Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate,
58 Stanford Law Review, 791-846, 2006, 841.
[31] Details below
[32] Tammra Hunt, Does Death
Penalty Deter Murder? Research Methods in Economics, Fall 2004, 8.
Available at: http://www.bus.ucf.edu/faculty/rhofler/file.axd?file=2011%2F2%2FHunt-Death+penalty.pdf. Accessed on: 17th
August, 2014.
[33] Ibid, 13.
[34] Supra, note 3, 8.
[35] Supra, note 18, Para-116.
[36] Ibid, Para-146.
[37] Ibid, Para-123.
[38] Ibid, Para-122.
[39] Supra, note 3, 8.
[40] Supra, note 18, Para-316.
[41] John J. Donohue and Justin
Wolfers, The Death Penalty: No Evidence for Deterrence, The Berkeley
Electronic Press, Economists’ voice, 2006, 1. Available at: http://www.deathpenaltyinfo.org/DonohueDeter.pdf. Accessed on: 17th August,
2014.
[42] Supra, note 3, 9.
[43] Supra, note 18, Para-197.
[44] Ibid, Para-129.
[45] Supra, note 3, 8.
[46] 37 States by the figures of
2008.
[47] Furman Vs. Georgia,
United States Supreme Court, 1972, 408 U.S. 238 (1972).
[48] Furman Vs. Georgia,
United States Supreme Court, 1972, 408 U.S. 238 (1972). Quoted in Joel Feinberg
& Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 1975,
4th ed, 1991, 764.
[49] Gregg Vs. Georgia,
United States Supreme Court (1976), 428 U.S. 153.
[50] Supra, note 47.
[51] Gregg Vs. Georgia,
United States Supreme Court (1976), 428 U.S. 153. Quoted in Joel Feinberg &
Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 4th
ed, 1991, 772.
“The
most marked indication of society’s endorsement of the death penalty for murder
is the legislative response to Furman. The legislatures of at least 35 states
have enacted new statutes that provide for the death penalty for at least some
crimes that result in the death of another person. And the congress of the
United States, in 1974, enacted a statute providing the death penalty for
aircraft piracy that results in death……But all the post-Furman statutes make
clear that capital punishment itself has not been rejected by the elected
representatives of the people.
In
the only statewide referendum occurring since Furman and brought to our
attention, the people of California adopted a Constitutional amendment that
authorized capital punishment, in effect negating a prior ruling by the Supreme
Court of California…..that the death penalty violated the California
Constitution.”
[52] Supra, note 47.
[53] Supra, note 25, 3.
[54] Supra, note 47.
[55] Supra, note 49.
[56] Supra, note 30, 792.
[57] Supra, note 3, 18.
[58] Ibid, 16.
[59] Supra, note 22, 27.
[60] Supra, note 3, 17.
[61] Pakistan Penal Code, 1860, S.
295-C: “Whoever by words, either spoken or written, or by visible
representation, or by any imputation, innuendo, or insinuation, directly or
indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon
him) shall be punished with death, or imprisonment for life, and shall also be
liable to fine.”
S.
354-A: “Whoever assaults or uses criminal force to any woman and strips her of
her clothes, and in that condition, exposes her to the public view, shall be
punished with death or with imprisonment for life, and shall also be liable to
fine.”
[62] Osama Siddique, Pakistan’s
Experience with Formal Law, An Alien Justice, (Cambridge University Press,
2014), 8.
“If
Jeremy Bentham’s preserved, albeit headless, body at University College
London—the so called “Auto-icon”—was to be miraculously resurrected and induced
to visit a contemporary Pakistani Court, he would be well within his rights to
feel a certain sense of de ja vu. After all, he famously prophesied acting as
the “dead legislative” of British India, with James Mill acting as its “living
executive.” If his brilliant disciple Thomas Babington Macaulay were persuaded
to undertake a similar escapade, he would be somewhat taken aback. He would
discover that his great handiwork, the Indian Penal Code of 1860, is still en
vogue, its original spirit intact beneath the veneer of periodic piecemeal
amendments. Both time travelers could be excused for thinking that they had not
travelled at all.”
[63] Ilhan Niaz, The Culture of
Power and Governance of Pakistan 1947—2008, Oxford University Press, 2010,
ed. 2011, ix.
“One
went so far as to declare that if we were to take away the much derided
‘colonial legacy’ all that we would be left with are shrines, some palaces and
a few cultural and aesthetic refinements.”
[64] Supra, note 3, 6.
[65] Supra, note 62, 20.
[66] N.J. Coulson, A History of
Islamic Law, Edinburgh University Press, 1964, 1st Indian
Reprint, Universal Law Publishing Co. Pvt Ltd, 1997, 50
“A
conservative attachment to tradition is the hallmark of the early Medinan
jurists, while their Kufan colleagues, living in a newly formed society which
had no such roots in the past, were animated by a spirit of free enquiry and
speculation.”
Noel
J. Coulson, Conflicts and Tensions in Islamic Jurisprudence, The
University of Chicago Press, 1969, 4
“The
first 150 years of Islam were characterized by an almost untrammeled freedom of
juristic reasoning in the solution of problems not specifically regulated by
divine revelation. Such rules of law as the Qura’n and the sunna
established were regarded simply as ad hoc modifications of the existing
customary law. This existing law remained the accepted standard of conduct
unless it was expressly superseded in some particular by the dictates of divine
revelation. And when new circumstances posed new problems, these were answered
on the basis simply of what seemed the most proper solution to the individual
judge or jurist concerned. In the expression of his personal opinion, known ra’y,
the individual was free to take into account any factors he deemed relevant. In
short, in these early days law had a distinctly dual basis. It was a compound
of the two separate spheres of the divine ordinance and the human decision.”
[67] Joseph Schacht, An
Introduction to Islamic Law, Oxford University Press, 1964, 1st
Indian Reprint, Universal Law Publishing Co. Pvt. Ltd, 1997, 15
“In
the field of penal law, the first caliphs went beyond the sanctions enacted in
the Koran by punishing with flogging, for instance, the authors of satirical
poems directed against rival tribes, a form of poetic expression common in
ancient Arabia.”
[68] Ran Hirschl, The New
Constitution and the Judicialization of Pure Politics World Wide, 75 Fordham
Law Review, 2006, 721-753, 737-738
“Another
telling example of judicial articulation of a nation’s core values is the
central role played by Egypt’s Supreme Constitutional Court in dealing with the
core question of the status of Shari’a rules—arguably the most
controversial and fundamental collective identity issue troubling the Egyptian
polity. Since the 1979 establishment of judicial review in Egypt and the 1980 constitutional
amendment that made Islamic Shari’a the principal source of legislation
in that country, the court has increasingly been called upon to determine the
constitutionality of legislative and administrative acts on the basis of their
adherence to the principles of the Shari’a. “The question before the
Court in all of these cases has been which principles of the Shari’a
possess determinative and absolute authority.”
To
address this question in a moderate way, the court developed a complex
interpretative matrix of religious directives—the first of its kind by a
nonreligious tribunal. It departed from the ancient traditions of the fiqh
(Islamic jurisprudence or the cumulative knowledge/science of studying the Shari’a)
schools, and has instead developed a new framework for interpreting the Shari’a.
Specifically, the court has developed a flexible, modernist approach to
interpreting the Shari’a that distinguishes between “unalterable and
universally binding principles, and malleable applications of those
principles.” Legislation that contravenes a strict, unalterable principle is
declared unconstitutional and void, while at the same time, ijtihad
(contemplation or external interpretation) is permitted in cases of textual
lacunae, or where the pertinent rules are vague or open-ended. Furthermore, the
government has been given broad legislative discretion in policy areas where
the Shari’a is found to provide unclear or multiple answers, provided
that that legislative outcome does not contravene the general spirit of the Shari’a.
This interpretative approach has marked a true shift in the paradigm for
legitimizing government policies based upon a moderate, fairly liberal
interpretation (ijtihad) of the Shair’a.”
[69] Holy Quran, English
translation by Marmaduke Pickthall (Pak Company, Lahore Pakistan, 2005),
Chapter 5 (The Table Spread) Verse 38: “As for the thief, both the male and
female, cut off their hands. It is the reward of their own deeds, an exemplary
punishment from Allah. And Allah is Mighty, Wise.”
Pakistan Penal Code, 1860, Sec. 379: “Whoever
commits theft shall be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with both.”
[70] Constitution of Islamic Republic
of Pakistan, 1973, Article 2: “Islam shall be the State religion of Pakistan.”
Article
203-D (3): “If any law or provision of law is held by the Court to be repugnant
to the Injunctions of Islam,
(b)
Such law or provision shall, to the extent to which it is held to be so
repugnant, cease to have effect on the day on which the decision of the Court
takes effect.”
[71] Supra, note 3, 20.
[72] Constitution of Islamic
Republic of Pakistan, 1973, Preamble, “Whereas sovereignty over the entire
Universe belongs to Almighty Allah alone……..”
[73] Constitution of Islamic
Republic of Pakistan, 1973, Article 1(1): “Pakistan shall be a Federal Republic
to be known as the Islamic Republic of Pakistan, hereinafter referred to as
Paksitan.”
[74] Constitution of Islamic
Republic of Pakistan, 1973, Article 2-A: “The principles and provisions set out
in the Objectives Resolution reproduced in the Annex are hereby made
substantive part of the Constitution and shall have effect accordingly.” The
Preamble of the Constitution is derived from this Objectives Resolution.
[75] Constitution of Islamic
Republic of Pakistan, 1973, Article 2: “Islam shall be the State religion of
Pakistan.”
[76] Constitution of Islamic
Republic of Pakistan, 1973, Article 260(3).
[77] Constitution of Islamic
Republic of Pakistan, 1973, Article 203D(3): “If any law or provision of law is
held by the Court to be repugnant to the Injunctions of Islam,
(b)
Such law or provision shall, to the extent to which it is held to be so
repugnant, cease to have effect on the day on which the decision of the Court
takes effect.”
[78] Mahmood Khan Achakzai Vs.
Federation of Pakistan, Supreme Court of Pakistan, PLD 1997 SC 426, 459
“……freedom bestowed upon the Parliament in clause
(6) of Article 239 after amendment does not include power to amend those
provisions of the Constitution by which would be altered salient features of
the Constitution, namely federalism, Parliamentary Form of Government blended
with Islamic provisions. As long as these salient features reflected in the
Objectives Resolution are retained and not altered in substance, amendments can
be made as per procedure prescribed in Article 239 of the Constitution.”
[79] Nancy J. Knauer, Legal
Fictions and Juristic Truth, St. Thomas Law Review, Vol. 23, 2010, 4.
[80] Stuart J. Youngner, Robert M.
Arnold & Renie Schaprio (ed), The Definition of Death, Contemporary
Controversies, The John Hopkins University Press, 1999, xiii
[81] President’s Commission for the
Study of Ethical Problems in Medicine and Biomedical and Behavioral Research,
Defining Death, A Report on the Medical, Legal and Ethical Issues in the
Determination of Death, 1981. Available at: https://repository.library.georgetown.edu/bitstream/handle/10822/559345/defining_death.pdf?sequence=1. Accessed on: 23rd
August, 2014.
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