Policy Perspectives, Volume 6, Number 2, July - December Abstract

Should Pakistan Abolish or Retain Capital Punishment? Written by {ga=nadeem-farhat-geelani} “ Policy Perspectives , Volume 6 , Number 2, July - Decem...
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Should Pakistan Abolish or Retain Capital Punishment? Written by {ga=nadeem-farhat-geelani}

“ Policy Perspectives , Volume 6 , Number 2, July - December 2009 ” Abstract [Although opinions, beliefs and perceptions about capital punishment vary widely across cultures, societies and countries, the idea of its abolition is patronized by the United Nations and has been endorsed by more than two-thirds of the countries of the world. Since the establishment of the Pakistan People's Party-led government in Pakistan in 2008, the call for abolition or at least commutation of the death sentence has arisen time and again in the parliament and in segments of the national press. The abolition movement is a product of historical and social developments peculiar to the Western part of the world. Current world opinion, as expressed in international surveys as well as at international forums, does not permit the viewing of abolition as an internationally accepted human right. Muslim states and peoples, in particular, resist the idea on an ideological basis. While Pakistan needs to review its laws and practices in respect of the death penalty, its outlawing or abandoning the practice altogether would be unconstitutional and highly unpopular. - [Author]

When the Pakistan People's Party (PPP) came to power in 2008, one of the issues that topped its agenda was partial or total abolition of the death penalty from the penal system of Pakistan. [ 1]

As a first step towards this objective, the federal cabinet adopted a proposal on July 2, 2008 to commute the death sentence of around 7000 condemned prisoners. [2]

Earlier, Prime Minister Yousuf Raza Gillani had asked President Pervez Musharraf to commute all death sentences to life imprisonments as a tribute to the slain leader of PPP, Benazir Bhutto, on the anniversary of her birth on June 21, 2008. [3]

The initiative was, however, checked by the apex court of the country on July 4, when (former) Chief Justice Abdul Hameed Dogar moved suo moto and issued notices to the Attorney General and ministries of Interior and Law seeking explanation. [4]

Realizing that a legal battle in the court could be challenging in the present constitutional framework, the Government of Pakistan decided to change its course and, instead of using its executive order for the commutation, a draft for the abolition of the death penalty through amendment in the law was prepared. Mr. Farooq H. Naik, who was then law minister, told the media that the Ministry of Law was planning to review various laws under which capital

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punishment is awarded in the country. He was reported as saying that the review bill would be ready by mid-November (2008) and the parliament would pass it by the end of same month. [5] On October 19, 2008, the law minister revealed that his ministry had forwarded a summary for removing the death penalty from the Pakistan Penal Code to the Prime Minister. [6] Later, the National Assembly was informed by the Adviser to the Prime Minister on Interior, through written reply to a question on November 22, that the government was considering a proposal -being processed by the law ministry-to abolish the death penalty in the country. [7]

Further developments were perhaps prevented by the volatile political and security situation in the country. Now, as the political scene seems relatively less restive, the government of PPP again looks inclined to move forward on this issue. The most recent development was seen on April 21, 2009, when it was reported in national dailies that further action had been stopped on all death sentences through an official notification issued by the President. [8]

In this backdrop, it is pertinent to examine the idea of abolition of the death penalty, understand it in the context of the global movement for it, and see whether it would be practical and advisable for the Government of Pakistan to opt for this measure.

[1] Dawn (Karachi), "Ending Death Penalty", June 11, 2008.

[2] Beena Sarwar, "Death Penalty-Pakistan: Reprieve Call Could Save Thousands," Inter Press Service News Agency , July 4, 2008, http://ipsnews.net/print.asp?idnews =43074 (accessed April 7, 2009).

[3] The News International, "PM urges president to commute death sentences," June 22, 2008, http://www.thenews.com.pk/arc_default.asp (accessed April 7, 2009).

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[4] The News, "SC takes notice of move to commute death sentence," July 5, 2008.

[5] Daily Times, "Death penalty review bill this month: Naik," November 2, 2008.

[6] Hasnaat Malik, "Ministry forwards summary to PM House for abolishing death sentence," T he Post , October 19, 2008.

[7] Tahir Niaz, "Govt considering abolition of death sentence, NA told," n.d., www.dailytimes.com.pk/print.asp?page=20081122story_22-11-2--0_pg7_1 March 24, 2009).

(accessed

[8] The Post and Jang, April 21, 2009. The report was, however, refuted by the Ministry of Interior: see Jang (Rawalpindi), April 25, 2009.

Global Movement for Abolition of Death Penalty The movement for abolition of the death sentence for all crimes is under way in almost all parts of the world at some level or the other. Capital punishment has been termed as an "ultimate and irreversible denial of human rights." [9] More than two-thirds of the countries of the world (137 in all) have either outlawed capital punishment or have abandoned it practically, [10] although some do allow it in exceptional circumstances, such as treason committed during wartime. [11]

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Prior to the Second World War, only eight countries had abolished the death penalty. [12] Since World War II, there has been a consistent trend towards abolition of capital punishment, although the movement has taken some time to gain momentum. By 1977, 16 countries had abolished capital punishment. In subsequent years, the number of countries who took this step increased remarkably; by December 2008, 92 states had completely abolished the death penalty from their legal system. The European Union strictly requires member states not to practice the death penalty. [13] On the global level, international non-governmental organizations (NGOs) like Amnesty International and Human Rights Watch have launched aggressive campaigns to promote abolition while international organizations like the United Nations (UN) and its allied bodies are also advocating it and seeking a universal ban on capital punishment.

The legal argument for the idea is found in the Universal Declaration of Human Rights (UDHR), 1948, which proclaims the right of every individual to protection from deprivation of life and states that no one shall be subjected to cruel or degrading punishment. [14] Article 6 of the International Covenant on Civil and Political Rights (ICCPR) [15] is seen as the first brick of the movement on the basis provided by UDHR. This provision recognizes an "inherent right to life" of every human and prohibits "arbitrary" deprivation of right of life to any individual. This is the first international covenant that makes a clear mention of abolition of the death penalty and asks those nations that retain capital punishment to limit its scope only to "the most serious crimes."

The UN Economic and Social Council (ECOSOC) adopted the "Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty" [16] in 1984. In the same year, the Safeguards were endorsed by consensus by the UN General Assembly. These Safeguards state that no one under the age of 18 at the time of the crime shall be put to death and that anyone sentenced to death has the right to appeal and to petition for pardon or commutation of sentence. This too is viewed as a step forward towards total abolition of the death penalty on the global level.

An important development, however, took place in 1989, when the UN General Assembly adopted the Second Optional Protocol to the ICCPR, [17] which categorically states in Article 1 that "No one within the jurisdiction of a State Party to the present Protocol shall be executed." This protocol was adopted by 59 votes in favor, while 26 opposed it and 48 abstained. [18] Seventy-one countries had become parties to this Protocol by June 18, 2009.

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[19] Subsequently, the UN Commission on Human Rights (UNCHR) passed a resolution calling on all states that still maintained the death penalty to progressively restrict the number of offenses for which it may be imposed with a view to completely abolishing it. [20] The most recent significant development in this regard has taken place in 2007, when the UN General Assembly adopted a resolution calling for a moratorium on the use of the death penalty; 104 UN member states favored the resolution, 54 voted against it and 29 abstained. [21]

[9] Amnesty International USA, "Death Penalty."

[10] Amnesty International USA, "International Death Penalty."

[11] Wikipedia, s.v. "Capital Punishment," . http://en.wikipedia.org/wiki/capital_punishment (accessed March 21, 2009).

[12] Walton, Second Optional Protocol.

[13] Council of Europe, "Protocol No. 6 to the Convention for the Protection of Human Rights ." [14] Articles 3 and 5. (The full text of the Declaration may be viewed at http://www.un.org/Over view/rights.html ).

[15] UN General Assembly, "International Covenant on Civil and Political Rights."

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[16] UN Economic and Social Council, "Safeguards guaranteeing protection of the rights of those facing the death penalty." [17] UN General Assembly. "Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty."

[18] Ibid.

[19] UN, "Databases."

[20] UN Commission on Human Rights, "Question of Death Penalty."

[21] Amnesty International, "UN General Assembly Resolution 62/149: Country Votes."

Background of the Movement To understand the origin of this idea, one shall have to travel back in European history to the age of the industrial revolution. Like most of the notions, theories and beliefs practiced in and promoted today by developed Western nations, the movement for abolition of capital punishment has evolved from a political and social experience expanding over different phases of history that is essentially peculiar to their part of the world.

In the society crafted by the Industrial Revolution, the quest for superiority and dominance through newly explored means of earning had created unprecedented economic disparity and

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polarization. Those who owned and ran industry were obsessed with the desire to safeguard their interests, even at the expense of others. Posing the slightest threat to the assets and capital of an industrialist could be a fatal mistake. In England, death was decreed for several hundred specific offences, particularly those against property. [22] Cutting down a tree, stealing an animal, [23] pick-pocketing goods worth more than one shilling, being out at night with a blackened face, [24] impersonating a Chelsea pensioner or damaging London Bridge [25] could mean a summons from the gallows. Michael Hammond and his sister, Ann, aged 7 and 11 respectively, were reportedly hanged at King's Lynn on September 28, 1708 for theft. The local press did not, however, consider the executions of two children newsworthy. [26] Harsh and ruthless modes were adopted for execution. The English legal system from the seventeenth century to the early nineteenth century is today remembered as the "Bloody Code." [27]

Voices were raised against this tyranny and injustice and the plight of the poor was highlighted by many, including Montesquieu, Beccaria, Voltaire, John Howard and Bentham. Individual voices soon joined into a movement which was, of course, reactionary in nature. Better sense seemed to prevail and reforms began. In Britain, for example, where at the beginning of the 19th century more than 200 offences were graded as capital crimes, the list of such crimes was reduced to just four by 1861. [28] However, like most movements launched in reaction to a wrong, the movement against the death penalty also swung to the other extreme, calling for a complete abolition of the death penalty from the legal system. This initiative received strength from the widespread popular movement that was reshaping European society. The Church had been ousted from public life and all that it believed and preached was under attack-including capital punishment. Human rights and individual freedoms constituted the new gospel for the modern world.

Gradually, the momentum and scope of the movement increased and in 1863 Venezuela became the first country to abolish the death penalty for all offences. [29] During and after World War II, a number of irregularities were noticed in the executions carried out by the warring nations. Military organizations employed capital punishment as a means of maintaining military discipline. The Soviets, for example, executed 158,000 soldiers for desertion during World War II. [30] When such facts came to the limelight, there was naturally a public outcry and the movement for abolition of death penalty gained further impetus. It has made rapid progress ever since.

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[22] Encyclopedia Britannica, 15th ed, s.v. "Capital Punishment," 536.

[23] Wikipedia, s.v. "Capital Punishment."

[24] Durham University, "The Bloody Code."

[25] Capital Punishment, UK, History of Judicial Hanging.

[26] Wikipedia, s.v. "Capital Punishment."

[27] Durham University, "The Bloody Code."

[28] International Encyclopedia of Social Sciences, s.v. "Capital Punishment," 291.

[29] Franck, The Barbaric Punishment, 51.

[30] Paul Shaheen, "Patriots ignore greatest brutality," Sydney Morning Herald, August 13, 2007, http://ww w.smh.com.au/news/opinion/patriots-ignore-greatest-brutality/2007/08/12/1186857342382.html (accessed April 27, 2009).

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Arguments for Abolition The following arguments are frequently quoted in favor of abolition: (1) the death penalty is racially biased, (2) it is primarily the poor who get executed, (3) the penalty claims innocent lives, (4) it is arbitrary and unfair, (5) the mentally ill are executed, (6) it costs more than alternative punishments, (6) it defies international human rights standards, and (7) it does not deter crimes. [31]

The first five of these arguments relate to the weaknesses of the implementation system and are in fact facets of the same assertion. They also reflect a specific historical perspective. Racial discrimination, for example, is cited with the American experience in mind, particularly its history of prejudice against African Americans. If they can make an argument for abolition of a specific kind of sentence, then the same argument applies to other punishment's too. Poor execution and flaws in implementation can never be made a basis for abolition of a law per se . Irregularities, corruption, injustice and discrimination are quite frequently reported in the structures and practices of the police, judiciary and executive agencies, especially in a number of developing countries. The entire framework of police, judiciary and prisons would have to be done away with, at least in these countries, if these arguments are accepted.

As to the comparative cost of the death penalty and its advised alternative, such as imprisonment for life, statistics and findings may and do differ. It can justifiably be argued that keeping and maintaining a person in a prison for a protracted period costs much more than execution. Moreover, the monetary aspect of the punishment may be cited as an argument by those who already endorse the idea of abolition but it can never pose a serious concern in a society where people believe that capital punishment for grave offenders is more likely to protect society. Furthermore, the cost of execution claimed by the abolitionists includes investigation, trial, appeals and incarceration and additional expenses, and this, in fact, reflects the caution and sensitivity of state authorities in handing down capital punishment. It shows that necessary precautions are taken and all doubts removed before a criminal is sentenced to death. The capital punishment, as a result, is rarely arbitrary or unfair in civilized and developed judicial systems.

The claim that the death penalty defies international standards of human rights is based on the fallacy that a universal understanding exists regarding what these rights should be. In fact, a charged debate is under way on the global level as to the universality of human rights. [32] This point begs some elaboration.

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It should not come as a surprise to anyone that even the so-called Universal Declaration of Human Rights is not seen to be ‘universal'; this was the case, even, at the time of its adoption and proclamation by the UN General Assembly in 1948. It was viewed by many to disregard the traditions, religions, and socio-cultural patterns of different communities constituting a large portion of the world's population. Eight countries, out of total membership of 56, preferred to abstain at the time of voting. These included Saudi Arabia, South Africa and six Soviet-block countries, such as Byelorussia, Czechoslovakia, Poland, Ukraine, USSR and Yugoslavia. [33] Other Muslim countries like Sudan, Iran and Pakistan [34] and Muslim populations and communities have been continuously expressing their concerns regarding certain provisions of the declaration. The Islamic Council of Europe, in its International Islamic Conference held in Paris in September 1981, proclaimed an alternative version of human rights in Islam. Setting forth the Islamic concept of the right to life, it provides: "... no one shall be exposed to injury or death, except under the authority of the law." [35] Muslim states, for the same reason, adopted an alternative document, known commonly as the Cairo Declaration on Human Rights in Islam, to express their interpretation of human rights. Article 2 (a) of the said Declaration says: "it is prohibited to take away life except for a Shari‘ah-prescribed reason."

The claim of universality of human rights cannot, therefore, hold good, and is therefore not a valid defense for abolition of the death penalty.

The important question that remains to be answered is whether the death sentence is or is not an effective deterrent for crimes. This issue is central to the discussion as one of the primary aims of any penal system, and of each of its component punishments, is to ensure the highest possible protection of and peace in society through a reduction in the frequency of crimes. [36] The effectiveness of a penalty is, therefore, most often linked to its actual ability to deter potential criminals and reduce the crime rate.

Owing to its centrality, this aspect of the issue has been discussed at length on every concerned level. As often happens in hotly contended debates, a clear yes or no answer has not emerged. Studies have led to dissimilar and often conflicting results. [37] The evidence produced regarding the deterrent effect of capital punishment has depended on the type of study carried out, specifically whether time-series and panel data have been used or cross-sectional data, and the effects of publicity. It should also be underscored that the effects of a specific social factor on society cannot be determined precisely and conclusively. Each social factor is inseparably connected with a host of other phenomena. Factors like poverty, despair, urbanization, economic and social conditions, governance, law and order and

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effectiveness of judiciary as well as media play their respective roles in setting the patterns in a society. Statistics and studies, therefore, may and do differ, and evidence both for and against the death penalty is enormous.

In a recent study to analyze the deterrent effect of the death penalty, Hashem Dezhbakhsh and Joanna M. Shepherd have used panel data of 50 American states for 1960-2000. Their findings were published in an article titled "The Deterrent Effect of Capital Punishment: Evidence from a Judicial Experiment." [38] The analysis is based on comparison of murder rates immediately before and after changes in state's death penalty laws, drawing on cross-state variations in the timing and duration of the moratorium. The authors conclude: We perform before-and-after-moratorium comparisons and regression using both national time series data and state level panel data for 1960-2000. The results are boldly clear: executions deter murders and murder rates increase substantially during moratorium. The results are consistent across before-and-after comparisons and regression regardless of the data's aggregation level, the time period, or the specific variable used to measure executions. (reference) The Criminal Justice Legal Foundation, America (CJLF) maintains a record of citations and abstracts of all articles on death penalty deterrence published in peer-reviewed journals without filtering them. The Legal Director of CJLF, in his statement before California Commission on Fair Administration of Justice, testified:

Strikingly, of the twelve papers published in peer reviewed journals, all twelve find a deterrent effect. Such a convergence of results by different scholars using different methods all coming to the same basic conclusion is remarkable, to put it mildly. [39]

Articles presenting the opposite point of view have, on the contrary, appeared in non-peer-reviewed journals or agenda-driven websites. [40]

It is also interesting to note that some countries have had to reintroduce capital punishment in their legal systems after once abandoning it. These include many states of the USA, India, Jamaica and Sri Lanka. [41] Tunisia abandoned the practice in 2000 but reverted to it in 2008 [ 42] when three executions were handed down during the year. [43] Philippines abolished the death penalty in 1987 but restored it in 1995. [44]

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[31] Batchelder, "15 Reasons to Abolish the Death Penalty."

[32] See, for example, Talbot t, Which Right Should be Universal?

[33] Sieghart, International Law of Human Rights, 24.

[34] New World Encyclopedia, s.v. "Universal Declaration of Human Rights," http://www.neww orldencyclopedia.org/entry/Universal_Declaration_of_Human_Rights#Criticism (accessed May 5, 2009).

[35] Hussain, Islam and Human Rights, 90.

[36] Walker, Sentencing in a Rational Society, 3.

[37] CJLF, "Articles on Death Penalty Deterrence."

[38] Dezhbakhsh and Shepherd, "The Deterrent Effect of Capital Punishment."

[39] Scheidegger, Statement before California Commission on the Fair Administration of Justice, April 11, 2008, www.cjlf.org/deathpenalty/ ScheideggerCCFAJStatement.pdf (accessed April 24, 2009).

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[40] Ibid.

[41] Wikipedia, s.v. "Capital Punishment."

[42] Magharebia, "Tunisian court upholds death penalty for convicted terrorist," February 21, 2008, http://w ww.magharebia.com/cocoon/awi/xhtml1/en_GB/ features/awi/newsbriefs/general/2008/02/21/newsbrief-01 (accessed April 29, 2009).

[43] Amnesty International, "Tunisia: Court's decision to uphold death sentence."

[44] David Lamb, "Rapist's Execution is First in Philippines Since 1976," Los Angeles Times, February 6, 1999, http://articles.latimes.com/1999/feb/06/news/mn-5451 (accessed April 29, 2009).

Public Opinion Public opinion on the subject varies in different societies but a Gallup International poll from 2000 found that "worldwide support was expressed in favor of the death penalty, with just more than half (52%) indicating that they were in favour of this form of punishment." While support for the death penalty generally continues to decline in developed countries, there is an increasing demand for its reinstatement in many abolitionist countries. [45]

[45] DPIC, "International Polls and Studies."

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Ideological Faultnes A bird's-eye view of the list of abolitionist and retentionist countries shows a clear ideological divide. This division is geographical too; the reluctance of most Asian and African countries to endorse abolition substantiates the impression that the movement is primarily Western. The religious divide is, however, more obvious. Countries where the majority of the population is Muslim have, by and large, resisted attempts at a universal ban on capital punishment. A few have, however, joined the abolitionist group. Tajikistan, Morocco, Brunei, Algeria and Maldives are among the countries which, while not abolishing the death penalty, have abandoned its practice. Tunisia joined this group but, as mentioned earlier, reinstated the practice after right years. In other Muslim countries too, abolition is being resisted severely. In May 2003, the Moroccan parliament passed a new anti-terrorist law, which made ordinary crimes eligible for the death penalty if they are considered terrorist crimes. By August 2005, over 2,000 people had been accused of crimes related to terrorism, and 17 were sentenced to death. [46] Kazakhstan and Kyrgyzstan retain the death penalty, though they have limited its application to exceptional circumstances, like mutiny and military law. [47] In Brunei, the death penalty is mandatory for murder, unlawful possession of firearms and explosives, and drug trafficking although no execution has taken place since 1992. [48] On December 18, 2008 Brunei, Darussalam and Maldives voted against the Resolution on a Moratorium on the Use of the Death Penalty at the UN General Assembly. [49] Algeria, too, has not executed a death sentence since 1993 but the new criminal code introduced by the government in 2006 retains capital punishment. The country is being offered political incentives by the EU for abolition. [50]

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Even though the right of expression and political and social freedom is not available to the people in most of these societies, discontent and disapproval towards the official position is often expressed. [51]

Turkey is the only country with a Muslim majority to abolish the death penalty. It should however be mentioned that Turkey is constitutionally a secular state and the abolition was also motivated by the country's keen desire to acquire EU membership.

[46] Jennifer Arnold, "Islamic Society, Human Rights, and Death Penalty: Capital Punishment in Morocco," Free Press Release, November 26, 2007, http://www.free-press-release.com /news/200711/1196083537.html (accessed April 29, 2009).

[47] Amnesty International, "Death Penalty: Countries Abolitionist for Ordinary Crimes Only."

[48] FCO, "Brunei Darussalam."

[49] Nessuno Tocchi Caino, "Brunei Darussalam."

[50] Nessuno Tocchi Caino, "Algeria." [51] See, for example, Judith Evans, "Religious Scholars Mount Bid Against Gayoom Candidacy," Minivan News (Malé), September 25, 2008, http:// ww w.minivannews.com/news_detail.php?id=5037 and Said Jameh, "Debate rages in Algeria over proposed death penalty ban," Magharebia (Algeirs) , January 29, 2009, http://www.magharebia.com/cocoon/awi/xhtml1/en_GB/features/awi/ features/2009/01/29/feature-01 (accessed April 30, 2009).

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Why Muslims Resist Abolition While human beings have a lot of common societies do differ become of the value framework they follow a society based on the principles of Islam is therefore essentially different from the societies based on contemporary Western philosophy. Developments during the past two and half centuries in Europe and America have created a capitalist society and the capitalistic behavior is not confined to economic activity. Religion has already been abandoned, along with the commandment, "Whosoever sheds man's blood, by man his blood shall be shed, for in the image of God He made man." [52] Money and materialism make the headlines of public life while human rights are adopted and promoted in an attempt to fill the moral gap. Individual freedoms and economic non-dependence underpin the entire structure of human rights. Disintegration of family institutions and other social ties based on kinship has been an obvious result of this phenomenon. A self-centered lifestyle is considered the height of civilization though it virtually leaves every individual to fight his or her own war for subsistence, of course, at his or her own expense. Even the closest relations are no more revered. The presence or absence of a close relative rarely makes much difference for a member of a capitalist society as the focus of all activities is money, not people.

On the contrary, Islam lays foremost importance on the human being and all of its teachings seek to uphold the honor and dignity of man. Each person is required and taught to respect, not only the life, but also the belongings, dignity and sentiments of others. Islam seeks to establish a society where every individual has a responsibility towards others. Muslims are expected to take care of and remain concerned about their fellows and to see the entire society as one unit, each part strengthening the other. While the abolitionist movement considers murder an "ordinary crime," [53] Islam equates the killing of one person with the slaying of all mankind. [54 ] Mutual respect and a sense of brotherhood are so deeply nurtured that the mere pointing of a weapon towards another Muslim is prohibited. [55] Maintenance of ties with kinsfolk is repeatedly emphasized in the teachings of Islam, and a person who breaks these ties is regarded as a fasiq (transgressor). [56] All acts that could lead to weakening of the institution of family have been effectively blocked.

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Looking at the objectives of shari‘a, [57] it is evident that it does not only aim at success in the hereafter but also seeks to regulate human life in this world in a manner befitting the status of man in the universe. It seeks to create a truly "human" society; it does not accept a way of life that reduces people to behaving like talking animals or breathing machines. To establish its envisaged society, Islam does not restrict itself to persuasion and advice: it ensures that those who disturb the peace are appropriately dealt with. If the scope and magnitude of the disturbance caused is limited and can be remedied, then compensation for the damage and reform of the guilty is sought. If, however, the crime is of such magnitude and scope that it disrupts life and poses a danger to society, then the response of shari‘a is accordingly firm. For these reasons, Islam not only obligates the qisas [58] (like treatment) but also mentions that it assures the soundness of life in society. [59] Apart from murder, adultery, apostasy and waging war against a Muslim state are capital crimes in a Muslim society.

At a conference of eminent jurists and intellectuals of Europe held in Riyadh in March 1972, a Saudi scholar put this fact in these words.

We are not hesitant in that Islam has prescribed death penalty for premeditated murder: its very severity makes the chastisement more efficiently repressive, especially if one considers how rapid the procedure: and how beneficial also are its effects for social tranquility and the protection of human lives. [60]

However, it should be underscored that, in most cases, Islam does not insist on execution. [61] Its primary concern is maintenance of law and order in the society. In a society founded on the principles of nature and where human ties are established on the basis of mutual love and affection, murder of a person is likely to result in rage and anger in the relatives. This anger can be so overwhelming that the slayer may neither be pardoned nor blood money be accepted. The Spanish jurist Montero had emphasized that a key aim of penal law is "to protect offenders and suspected offenders against unofficial retaliation" [62] and if proper justice is not meted out then the society may witness more bloodshed and more lawlessness. The examples of Musharraf Bibi of Sheikhupura, Pakistan, who killed the person she believed to be the murderer of her two brothers and a cousin inside a courtroom, [63] and of Don Taylor of Milan, who shot dead the murderer of his father after he was released after completion of his prison term,

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[64] may suffice to explain this point. In Islam, the right to pardon a murderer is, therefore, exclusively given to the heir of the slain. [65] At the same time, the Qur'an encourages the faithful to prefer forgiveness.

The recompense for an injury is an injury equal thereto (in degree): but if a person forgives and makes reconciliation, his reward is due from Allah: for (Allah) loveth not those who do wrong. [6 6]

Finally, Islam does not use the death penalty as the only deterrence. It trains, purifies and reforms society and ensures that justice is provided without delay or discrimination. The greatest deterrence that Islam invokes is the belief that every person will be held responsible for his or her deeds.

These are the reasons why Muslim societies normally show lower rates of homicide, despite the fact that they are far from ideal. Internationally, among the first thirty countries that have shown the highest homicide rate in recent years, there is only one Muslim country and that is Iraq, [67] which, of course, cannot be regarded as a typical example. On the other hand, mass killings and deadly shootouts have become a source of chronic concern for governments and individuals in both the United States and Europe.

[52] Genesis 9:6.

[53] Amnesty International, "Abolitionist and Retentionist Countries."

[54] Al-Qur'an 5:32.

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[55] Sahih Al-Bukhari, Book 9, Vol. 83, Hadith 13.

[56] Al-Qur'an 2:27.

[57] Muslim jurists have identified five fundamental objectives of Shariah: protection of deen, protection of life, protection of property, protection of honor, protection of lineage, and protection of intellect.

[58] The concept of qisas in Islam is similar to the biblical principle of ‘an eye for an eye.' It is the right of heirs of the victim (in case of murder) or the victim himself (in case of a non-fatal injury) to demand the same loss to the offender as was suffered by the victim. This right may be waived either as an act of charity or in return of compensation.

[59] Al-Qur'an 2:178-179.

[60] Kingdom of Saudi Arabia, Moslem Doctrine and Human Rights in Islam, 23.

[61] Al-Qur'an 2:178.

[62] Walker, Sentencing in a Rational Society, 3.

[63] Geo Television Network, "Woman kills brothers' alleged murderer in courtroom," February 11, 2009, http://www.geo.tv/2-11-2009/34949.htm (accessed April 30, 2009.)

[64] Associated Press, "Revenge Motive in 19 Year old Murder," eMy Fox (Memphis), April 28, 2009, http://www.m yfoxmemphis.com/dpp/news/042809_Revenge_

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Motive_in_19_Year_Old_Murder (accessed April 30, 2009).

[65]

Al-Qur'an 17:33.

[66] Al-Qur'an 42:40.

[67] Wikipedia, s.v. "List of countries by international homicide rate," http://en.wikipedia.org/wi ki/List_of_countries_by_murder_rate (accessed May 4, 2009).

The Death Penalty in Pakistan In Pakistan, capital punishment is prescribed for 27 different crimes, which include various forms of intentional murder, [68] treason, [69] blasphemy, [70] kidnapping or abduction, [71] rape, [72] procuration [73] and importation [74] for prostitution, assault on modesty of woman and stripping of her cloths, [75] drug smuggling, [76]

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arms trading, [77] and sabotage of the railway system. [78]

In the current legal system, any move to abolish or even abandon the death sentence would certainly be a breach of the constitution. The Constitution of the Islamic Republic of Pakistan expressly declares that no law shall be enacted that is repugnant to the injunctions of Islam as laid down in the Holy Qur'an and the Sunna. [79] It is precisely for this reason that the Supreme Court of Pakistan had to intervene and question the legitimacy of the federal government's move for commutation of death sentences.

Ironically, the Ministry of Law too had initially advised the Prime Minister (in July/August 2008) against the commutation, advising that the proposal to pardon or commute the death penalty awarded to 7,000 civilians to life imprisonment would be a violation of Islamic law, contrary to the rulings of the Supreme Court, and in disregard of the grief and agony of those whose loved ones had been murdered. [80]

It is also highly intriguing that, at the same time that the government was weighing the option of abolishing the death penalty, the President of Pakistan saw fit to promulgate the Prevention of Electronic Crimes Ordinance on November 6, in which "cyber terrorism" was made a capital crime. [81] This stark contradiction in the government's stance suggests that the idea of outlawing the death penalty is not its own but has been transplanted in Pakistan.

Public opinion in Pakistani society is heavily in favor of the death penalty and this fact is acknowledged even by those who support abolition. [82] Any contrary move is, therefore, bound to generate controversy, displeasure and censure. It is, however, suggested that the death penalty be prescribed only for the gravest of crimes. In this, the government may be guided by the principle enunciated by the Prophet of Islam (peace be upon him) that the blood of a Muslim cannot be shed except in three cases: in qisas for murder, for illegal sexual intercourse committed by a married person, and for apostasy. [83] The gravity of offence in case of robbery in the middle of the street ( Qat al-tariq ) and high treason may also invite capital punishment. [84]

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It should not be assumed that deciding to retain the death penalty and limiting its applicability concludes the discussion. Major reforms are urgently needed in the legal infrastructure of Pakistan. The serious defects in the law, in the administration of justice, and in the police service, and chronic corruption and prejudices in Pakistani society have been highlighted by various observers and commentators. These should be addressed immediately through the development and implementation of comprehensive policies. It needs to be ensured that no innocent person is condemned and no guilty person is allowed to escape justice. When a just and transparent process of conviction is coupled with the harsh punishment, it will serve as an effective deterrent to the most heinous crimes. On the other hand, cosmetic measures driven by propaganda groups will only deepen chaos and rifts in an already fragmented society and add to discontent amongst the people.

[68] Pakistan Penal Code, 1860, sections 302, 303, 311, 312, 194, 396; Anti-Terrorism Act, 1997, sec. 7.

[69] Pakistan Penal Code, 1860, sections 121, 132; High Treason Act, 1973, section 2A.

[70] Pakistan Penal Code, 1860, section 295C.

[71] Pakistan Penal Code, 1960, sections 164A, 365A, 367A.

[72] Pakistan Penal Code, 1860, section 376; Offence of Zina (Enforcement of Hudood) Ordinance, 1979, section 5.

[73] Pakistan Penal Code, 1860, section 366A.

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[74] Pakistan Penal Code, 1860, section 366B.

[75] Pakistan Penal Code, 1860, section 354A.

[76] Control of Narcotics Substances Act, 1997, section 9.

[77] Pakistan Arms (Amendment) Ordinance, 1996, section 13A.

[78] Railways (Amendment) Act, 1995, section 127.

[79] Article 227.

[80] Ansar Abbasi, "Naek turns a blind eye to his own ministry's view," The News International, October 8, 2008, http://www.thenews.com.pk/print1.asp?id=139905 (accessed April 21, 2009).

[81] President, "Prevention of Electronic Crimes Ordinance, 2008."

[82] Habbard, Slow March to Gallows, 19.

[83] Sahih Al-Bukhari, Book 9, Vol. 83, Hadith 17.

[84] Al-Qur'an 5:33.

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