An interesting article....persons facing death can escape death by paying compensation to the family/heirs of victim - but is it just? This avenue may only be available to the rich....not the poor.
Should be 'total pardon' or just result in commutation of the death sentence to imprisonment?
Should Malaysia be considering this? For murder, the 'heir of the victim' is clear - but for drug trafficking cases, can it apply?
Should victims of crimes play a more significant role in sentencing - should they or their families have a say before sentencing. If the family of victim 'pardons' - should it not have a bearing on the sentence - should it not be a mitigating factor, capable of even changing 'mandatory death sentences' to prison sentences...
Reforming the law: In Pakistan, punishment is Islamic, but not the procedure
A number of Muslim majority countries have abolished
the death penalty; can we begin the debate in Pakistan?
LAHORE:
Around 100 countries with varying legal traditions have
abolished the death penalty, including a number of Muslim majority
countries like Turkey, Albania and Djibouti according to the Amnesty
International. The case of death penalty in Pakistan, however, is
trickier.
“Over here, the punishment for murder is Islamic but the procedure
for investigating such cases is not,” says Barrister Umar Mahmood Khan,
who practices criminal law in Punjab’s court. The burden of proof is
extremely high, but the investigation is so faulty that the conditions
for a fair trial as required by the Islamic law are never met here, says
Khan. Money is frequently used to influence investigation, which is
structurally testimonial-centric, so there is not much left for the
lawyers to defend.
So far, Khan says, he has not seen the trickle down effect of
government attempt, if any, that could help the marginalised in death
penalty cases. Despite setting up of a forensic lab for advanced
investigation techniques, no definite change in cases like murder and
rape are seen yet, he adds.
Qisas and diyat
Under Islamic law, the punishment for murder, homicide or infliction
of injury can either be in the form of qisas – equal punishment for the
crime committed – or diyat – compensation payable to the victims or
their legal heirs. Under the Qisas and Diyat law
in Pakistan, the victim or his heir have the right to determine whether
to exact retribution (qisas) or compensation (diyat) or to pardon the
accused.
The ordinance came under the spotlight in the Raymond Davis case when
the CIA contractor, accused of killing two Pakistanis in Lahore, was
allowed to leave Pakistan after paying compensation to the victims’
heirs.
Given how diyat reduces rescue from gallows to money, Barrister Zafrullah asks, “Is Islam the religion for rich only?”
The Qisas and Diyat ordinance is “privatisation of justice” and
absolves the state of protecting its citizens, says the Human Rights
Commission of Pakistan’s 2006 report on death penalty, “Slow March to
Gallows.”
Arthur Wilson, executive director at Prison Fellowship Pakistan, has
been mediating for forgiveness of condemned prisoners for over two
decades. Wilson says as a Christian he does not believe in blood money,
but as an activist he needs to make best use of what the system offers
him.
“A lot of families of deceased when approached, would like to take
the blood money and forgive the accused, if it were not for those who
have stakes in wrongful conviction of the accused.”
Room for debate
In Pakistan, people’s idea of justice regarding the death penalty is
based on religion and there is a need for starting a debate on Islamic
law; therefore, the debate on emphasis that Islamic Law puts on a state
to provide justice needs to be conducted openly, says Sarah Belal.
Asad Jamal, a senior lawyer, argues that there is a need for policy
to regulate the Qisas and Diyat law, and quotes from a paper written by
William Schabas, a professor or Islamic Law at University of Montreal,
in 2000.
“Schabas writes that though all Islamic countries have ‘demonstrated
some degree of flexibility in the interpretation of Islamic law in some
of the areas of criminal law, yet they stubbornly refuse to acknowledge
that the same approach may be undertaken with respect to the death
penalty. It appears that religion is little more than a pretext to
justify a resort to harsh penalties that is driven by backward and
repressive attitudes in the area of criminal law,” Jamal says.
Path to the gallows is strewn with orders and appeals
Capital punishment is prescribed as the maximum punishment for over
20 different crimes in Pakistan, including various forms of intentional
murder, treason, blasphemy, kidnapping or abduction, rape, procuration
and importation for prostitution, assault on modesty of woman and
stripping of her clothes, drug smuggling, arms trading, and sabotage of
the railway system.
An accused becomes a condemned prisoner after an additional district
and sessions judge condemns him to death. Prisoners, however, cannot be
executed unless a High Court confirms the death penalty. Even if the
prisoner does not appeal his penalty, jail authorities automatically
take the case to a High Court. If the High Court upholds the death
penalty, the additional district and sessions judge issues a black
warrant which bears the date of the execution. After that, the prisoner
can appeal to the Supreme Court (SC). If the SC does not issue a stay
order before the day of execution, the prisoner will be hanged. And if
the SC upholds the penalty, the prisoner, through jail authorities, can
send a mercy appeal to the president as last resort.
Under article 45 of the Constitution,
the president has the “power to grant pardon, reprieve and respite, and
to remit, suspend or commute any sentence passed by any court, tribunal
or other authority,” if there is a mercy petition before him.
A prisoner is on the death row after all his appeals have been rejected.
No comments:
Post a Comment