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Reforming processes of death penalty

The debate on death penalty has focused on outcomes alone

Reforming processes of death penalty

Read Aftab Bahadur’s letter from his death cell published in The Guardian. These words represent perhaps the last communication, with the outside world, of a man on death row.

He was hanged on June 10, 2015.

Adam Smith once wrote that sympathising with someone is an exercise in imagination. If that is true, and I find the idea to be particularly compelling, then most of us fall well short when it comes to sympathising or, just as important, empathising with human suffering. The finite nature of time, perhaps, cannot be imagined till you actually have no option but to count the seconds ticking down.

Aftab’s letter is, in no small way, a comment on the state of Pakistan’s criminal justice system. It also, along with circumstances surrounding his case and others, encapsulates how discourse on opposing sides never really engages in a direct grasp of some important issues and the damage this causes.

The debate on the death penalty has gained significant momentum in Pakistan. This is, of course, something to be celebrated. But we must also ask ourselves whether the debate in its current dominant form provides any real hope for alleviation of human suffering. This applies to both the victim(s) and the accused in a criminal case but particularly with regard to the death penalty — is the focus on outcomes or processes?

Largely the debate has focused on outcomes while ignoring processes, leading up to the carrying out of the death penalty. This is no small oversight. People and organisations mostly write and argue in terms of ‘pro’ or ‘anti’ death penalty. Without taking anything away from NGOs that do commendable work to help individual prisoners on death row, we must acknowledge the limits of such work when it comes to the macro issues. This fact, yes an indisputable fact, must be acknowledged and addressed by all relevant stakeholders.

There is little point in giving people injections to fight a disease if you never take out time to study the virus itself.

Aftab Bahadur’s letter could probably be argued to support an argument against the death penalty but doing so would not alleviate the risk for someone in his position in the future. What he argues for early on in his letter is not an anti-death penalty stance but an argument for transparent processes in the system, equality of arms, presumption of innocence etc. What he argues for first is his innocence. What he pleads is the lack of process.

Are we doing a disservice to human suffering by focusing only on the consequence?

Bringing individual cases of abuse of process helps flag important issues. There is no doubt about this. But by then the war becomes about the consequence. The remedy is individualistic and it does not make the system better or the existence of an accused any safer. It is not surprising that the press loves highlighting individual cases since an argument for a re-examination of the relevant criminal justice processes is not as glamorous. But even if such concerns for process do not offer faces of individuals that you can splash on newspapers, it does represent an issue affecting an aggregation of people — rather than just one person. What is ignored is a systemic issue and what takes a backseat is concern for substantive justice for all.

When the debate becomes pro- or anti-death penalty, it does a disservice to human interests at stake as well as the commendable work of individuals/NGOs regarding particular cases. The issue of whether cases like Shafqat Hussain’s have been botched must remain separate from the case for holistically addressing the processes that threaten a fair investigation, prosecution and trial. The merits of the death penalty are also completely distinct from this.

It is important to view these issues separately instead of conflating them. And a conflation of these often occurs when individual cases are brought to light — it gives stakeholders a chance to push their broader agendas and it gives the press something sensational to throw out there.

This is a tragedy and nothing less.

Aftab Bahadur’s letter is also a commentary on human psychology — and the impact of imprisonment on a social animal. Things that we take for granted — interacting with other human beings, taking stock of our surroundings — become scarce. Every little detail of the ‘outside world’ becomes important. Each passing second represents a diminishing opportunity to engage in the exercise called life. This is not something we would wish upon anyone, let alone a person claiming his innocence. Of course, a cynic (arguably for good reason) would say that few men would make a case for life by pleading guilty. That might be so. But that does not address the fact that there are bound to be scores of cases of wrongful convictions leading to the death sentence — and the wait for execution.

What will help the innocent is a reform of the process and not a glamorous story about individual cases. The case for reform is not helped by the media, highlighting well-intentioned actions gone wrong in cases like Shafqat’s.

Many of those engaged in the practice of criminal law look to the Honorable High Courts of this country to set things right for just outcomes — and this too applies only to individual cases.

A case-by-case exercise is undertaken by Honorable Justices to aid the cause of justice. The pressures on their time and resources are immense — indeed even unimaginable for most of us. And we cannot expect to flourish as a society by leaving all abuses of process to be rectified by appellate courts. The only remedy is a reform of the system — and how many are pushing for that?

So, what is the takeaway thought? Whether the death penalty is just or unjust is a debate that must be kept separate from a concern for ensuring justice on a holistic level. The relevant NGOs, politicians, practitioners all have some hard thinking, and work, to do. We can either stand at the end of the line when the guillotine has already started doing its work or we can step forward to bring people together to ensure transparency in a system — not individual cases.

There is little point in giving people injections to fight a disease if you never take out time to study the virus itself. The reason: the finite nature of time will eventually consume all of us, including our broken systems. 

Waqqas Mir

The writer is a practicing lawyer. He can be reached at [email protected]

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