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DEATH PENALTY IN PAKISTAN

[ Historical background ]

In 1947, at the time of independence, only homicide and treason were punishable by deathpenalty.

The important evolution occurred between 1977 and 1988 under General Ziaul Haqs regime,

and the beginning of the Islamisation of the country. The peak of executions by year was

reached in 1978, with 207 executions. The lowest happened in 1989, where no execution took

place.

During the last year of Benazir Bhutto's reign (1996), only 9 executions occurred. Her father

had been sentenced to death and executed after an unfair trail under General Ziaul Haqs

regime.

[ Capital offenses ]

The Islamic Republic of Pakistan has a mixed legal system with Islamic provisions

mandatorily prescribing the death penalty for extra-marital sex by a married person, for

blasphemy, and for murder if proven through the testimony of specified eye witnesses,

through confession of the accused, and additionally at the discretion of the court in cases that

do not fall within the above categories or for act of murder amounting to mischief on earth.

In addition, the death penalty can be imposed under other provisions within the Penal Code

for a range of offences against the state as well as for gang-rape and for robbery by five or

more persons with murder.Altogether, Pakistani laws provides the death penalty for 27 crimes including crimes going

beyond the notion of most serious crimes as recommended by the International Covenant onCivil and Political Rights: disclosure of parole or watchword, drug offences, false evidence

with intent to procure conviction of capital offence, stripping a womans clothes, orzina(illegal sexual intercourse).

[ Status of the death penalty in international laws ]

Pakistan signed the International Covenant on Civil and Political Rights and the United

Nation Convention against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment in April 2008 but has no ratified it.

In December 2007, Pakistan voted against a United Nation General Assembly resolution for a

moratorium on the death penalty and joined the statement of disassociation initiated by

Singapore.

[ Method of execution ]

Executions are carried out by hanging or, for adultery only, by stoning.

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[ Figures ]

Some 310 people were reportedly sentenced to death in 2007, mostly for murder. At least 135

people were executed,

[ Recent evolution ]

The Juvenile Justice System Ordinance 2000, abolishing the death penalty for persons under18 at the time of the offence in most parts of the country, entered into force on 1 July 2000.

On December 6, 2004 the High Court in Lahore (province of Punjab) decided to revoke this

Ordinance. The federal government and a non-governmental organization working on child

rights filed appeals in the Supreme Court against the Lahore High Court judgment in 2005,

but the appeal is still pending before the Supreme Court.

The last five years have seen an increase of convictions to death after the 2003 Supreme Courtruling which stated that, in cases of murder, the normal penalty of death should be awardedand leniency in any case should not be shown, except where strong mitigating circumstances

for lesser sentence could be gathered.

Since November 2006, Pakistan has amended its law on rape and adultery, which are no more

punishable by death penalty, but by five years of imprisonment and a 129 Euros fine.

On 21 June 2008 Prime Minister announced that his government will send a proposal for

Presidents approval to commute all current death sentences as a tribute to Benazir Bhutto, the

leader of his Pakistan People's Party who was killed outside an election rally in December

2007.

On 4 July 2008, the Pakistan Law Ministry strongly opposed the federal cabinet approving thecommutation of the death penalties of 7,000 convicts to life terms, claiming the decision was

a violation of Islamic laws.

In the Law Ministrys view, the president has no right to commute a death sentence awarded

under Hadood and Qisas laws1. The Federal Sharia Court ruled that, according to Islamic law,

the legal heirs of a murder victim are the sole persons entitled to grant mercy to the culprit.

Federal Sharia Court and the Supreme Court have limited the possibilities of pardon by the

president, in spite of the constitutional provision that grants him the right to do so. However,the president still retains the right to pardon when the political circumstances demand it. For

instance, Mirza Tahir Hussain, a Briton condemned to capital punishment, was grantedclemency in November 2006 by President Musharraf after massive international pressure and

against the wishes of the victims family.

1

The Qisas and Diyya Ordinance (1990) allows to pay blood money to relatives of the victim in lieu ofexecution: under Islamic law, the punishment can either be in the form ofqisas (equal or similar punishment for

the crime committed) ordiyya (compensation payable to the victim's legal heirs).

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[ Specificity of the country ]

Pakistan ranks among the countries in the world which issues the most death sentences. At

present there are approximately 7,500 persons including children under sentence of death,

mostly for murder many of which appear to be imposed after unfair trials:

In criminal cases, there is a strong tradition to rely much more on oral evidence thanon material evidence, which greatly increases the pressure on witnesses. It is very

difficult to have independent witnesses testify, for fear of retaliation against their

family, or because of fear of getting involved with the authorities and the police.Coercion or corruption of witnesses can stem from the police, from the powerful local

families, from the culprits relatives, or even from the victims party.

The police in Pakistan are still ruled by a culture of violence, intimidation andcoercion; torture is routinely used to extract information or confessions from suspects

and illegal detentions are common.

The Qisas and Diyya1Ordinance introduced in 1990 risk to lead to a privatisation of

justice, as the State withdraws from one of its main responsibilities, since it no longer

is the guardian of the rule of law through the exercise of justice. The life of anindividual hinges not on the norms of justice but on the persuasive powers of his

relatives. If the murderer is forgiven by the victims heirs, he is acquitted and

immediately freed. However, the State retains the possibility to punish the offender.

This practice is discriminatory as the rich and powerful usually have the means to

obtain the pardon of the victims family and thereby obtain their release, whereas the

poor and powerless are often executed.

It also has consequences on lower courts: Amnesty International has learned that thedeath sentence for murder is frequently imposed on the basis of inadequate evidence in

the expectation that the sentence will not be carried out as families are likely to reach a

compromise, forgive the offender and so release the alleged perpetrator. Sometimesnegotiations over compensation continue while the convict stands ready to be hanged.

The Anti-Terrorism Act was adopted in 1997 with the aim to " provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous". Itexplicitly overrides all other legal provisions, and applies to the entire country. It

appears that the Anti-Terrorism Act de facto shifts the burden of proof from the

prosecution to the accused resulting in a presumption of guilt.

[Sources : Slow march to the gallows: Death penalty in Pakistan (2007) http://www.fidh.org/spip.php?article4096

Amnesty International Annual Report 2008 http://thereport.amnesty.org/eng/Homepage ]