Open letter to the Pakistani authorities on death penalty

The Human Rights Commission of Pakistan (HRCP) and FIDH want to share with you their concerns and future recommendations about the application of the death penalty in Pakistan. Both organizations have jointly, and for several years, advocated for the abolition of this inherently cruel, inhuman and degrading punishment that violates the right to life.First of all, we would like to stress that, together with the rest of the human rights community, we have recognized and appreciated the efforts made by the Government of Pakistan through the moratorium on executions established in September 2008. Soon after, Pakistan ratified the International Covenant on Civil and Political Rights (ICCPR) and, at the occasion of the UN Universal Period Review of Pakistan in October 2012, supported recommendations by other States to maintain the moratorium. However, the execution of Muhammed Hussain on 14 November 2012, as well as the fact that 450 convicts out of the more than 8,000 death row inmates in Pakistan awaited execution by August 2013, highlight the many challenges still to be fulfilled. Among the 58 countries in the world that retain the death penalty, Pakistan is one of the only 21 countries reportedly carrying out executions in 2012 ; with an average of more than 300 yearly sentences, it ranks among the countries in the world which issue the most death sentences regardless the current global trend on death penalty that is undoubtedly towards universal abolition.

HRCP and FIDH strongly believe that Pakistan should abolish the death penalty. First, we believe that the scope of application of the death penalty remains particularly broad under the Pakistan Penal Code and other laws. While it comprised of only 2 charges carrying the death penalty at the time of Partition, there are today 27 such charges. These go far beyond the threshold of ’most serious crimes’ stipulated by Article 6 of the ICCPR : capital punishment in Pakistan is prescribed for offenses including blasphemy, sexual intercourse outside of marriage, kidnapping or abduction, gang rape, assault on the modesty of women and the stripping of a woman, smuggling of drugs, arms trading and sabotage of the railway system. In addition, HRCP and FIDH believe that in the specific context of the ’fight against terrorism’, the death penalty is not a solution. The Anti-Terrorism Act (ATA), adopted in 1997 with the aim to “provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offenses and for matters connected therewith and incidental thereto”, explicitly overrides several legal provisions and curtails the guarantees of fair trial, especially in death penalty cases. Those who commit acts of so-called terrorism should be prosecuted before competent, independent and impartial courts that meet international due process standards, and should not be sentenced to death.

Besides, the high incidence of crime in the Pakistan despite it being among countries with one of the highest rates of conviction to capital punishment in the world demonstrates that capital punishment has no special deterrent effect. Studies in several other countries have also shown that death penalty does not work as a deterrent to crime, and the rising number of convictions under death penalty offences in countries that retain capital punishment further proves that point.

In addition, the current state of the administration of justice in Pakistan compels the Government of Pakistan to maintain the moratorium, as a first step towards abolition. As you well know, capital punishment in Pakistan has been historically adversely affected by the lack of independence of the judiciary and the weakness of the police. Torture is routinely used to extract information or confessions from suspects, illegal detentions are common and there remains a strong tradition to rely much more on oral evidence than on material evidence, which lead to false judgments. Lastly, it is very difficult to have independent witnesses testify, for fear of retaliation. Coercion or corruption can stem from the police, powerful local families, culprit’s relatives, or even from the victim’s party. The generally hierarchical and unfair social structure of Pakistan inevitably skews police investigations and judicial proceedings in favor of the wealthy and influential, especially at the local level. Pakistani laws have even institutionalized – especially through the Qisas and Diyat Ordinance of 1990 – discrimination against poorer defendants. In cases of murder, the criminal can be forgiven and the death penalty removed if the family of the victim comes to an agreement with the criminal. This practice puts a price on human life and serves to ensure that murderers with money will walk free. The poor, being unable to pay, will receive no amnesty and likely be sentenced to death. Additionally, many litigants are not given an adequate defense as lawyers appointed ex officio are often paid too little and are too young and inexperienced to deal with procedures not respecting the minimum fair trial guarantees.

Furthermore, HRCP and FIDH believe that a thorough reform of the prison system needs to accompany the moratorium in place since 2008. While death sentences should be commuted to enforceable penalties of life imprisonment, the condition of detention of current death row inmates – notably the long periods of detention and the solitary confinement they face – should be swiftly improved as it amounts in many cases to cruel, inhuman and degrading treatment. The pressure of the death penalty stay has affected the mental health of many, who have over years been given dates for their hanging, only for them to be successively canceled. A number of these prisoners have reportedly committed suicide. Although the number of death row inmates increased from less than 5,500 in 2005 to more than 8,000 today, prison capacity has not been increased to hold them.

Taken into consideration that the death penalty contradicts the premise that human rights and human dignity are universally acknowledged fundamental norms, and that its application will not lead to an improvement of the situation of law and order in Pakistan, HRCP and FIDH recommend to the Government of Pakistan to :

On the death penalty :

• Maintain the moratorium on executions, and seriously consider moving towards the abolition of the death penalty ; in addition, become party to the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty.
• Approve the proposal made by the Federal Cabinet on July 2, 2008, to commute death sentences to enforceable penalties of life imprisonment, and follow on the previous Government’s plan to table a bill in Parliament to commute death sentences to life imprisonment, as reiterated in a petition pending before the Supreme Court of Pakistan.
• In the interim and as a first step towards abolition, restrict the number of offenses carrying the death sentence to the most serious crimes only, as reflected in the ICCPR and in conformity with paragraph 2 of the UN Safeguards Guaranteeing the Protection of the Rights of Those Facing the Death Penalty.
• Guarantee transparency of data collection regarding death penalty in the country, and make public statistics on the number of death sentences pronounced and executed every year, differentiated by gender, age, charges etc, in order to allow for an informed public debate on the issue.
• When all judicial appeals are exhausted, ensure that mercy petitions addressed by defendants to the President of Pakistan are accepted.
• Develop programs aiming at raising public awareness regarding the relation between human rights and the death penalty.

On the administration of justice :

• Repeal the Qisas and Diyat Ordinance of 1990.
• Set up efficient mechanisms to combat corruption within the police and the judiciary ; and establish effective and independent complaint mechanisms.
• Strengthen police investigations, in particular through material and forensic information collection ; ensure proper training in those fields ; and, more generally, increase budgetary allocations for the police, justice and prison systems.
• Establish a program for the protection of victims and witnesses taking part in criminal procedures.
• Guarantee accessibility of members of civil society to prisons and ensure contacts with death-sentenced prisoners.

We would be happy to discuss these issues with you at your convenience, and remain at your disposal for any question or clarification.