The past several years have seen a continuous surge in shocking and ghastly cases of child abuse in Pakistan. In February, the National Assembly took a firm stance against such atrocities and voted for the resolution in favor of ‘Public Execution’ of culprits. The resolution was passed with a majority vote.
However, this led to some segments of society, our ‘intelligentsia,’ expressing dissatisfaction, considering it a violation of the culprit’s ‘Right to Dignity.’ Amnesty International put out a statement condemning any move towards capital punishments as well as public hangings.
They presented five chief reasons for abolishing the death penalty. First that it is irreversible, and mistakes in identification of the criminal can happen; second, it does not deter crime; third and fourth arguments they state as it is often used within a ‘biased and discriminatory’ justice system; and, fifth, it is commonly used as a political tool.
Human dignity connotes the fact that human beings are different from the other creatures, the human species is indeed something special in that it possesses valuable uniqueness or distinctiveness
The question is: does the concept of capital punishment violate the right to dignity? Are the two rights: victims’ right to retribution (right in personam) and society’s right to protect human dignity (right in rem), contradictory to each other?
Professor Erin Daly, in his book, Dignity Rights: Courts, Constitution, and the worth of Human Person, expressly talked about the concept of dignity. The right to dignity can either be protected as a constitutional value and right or not be recognized as a constitutional value and right. And “as to constitutional value, human dignity is the value of a person within society.” Meaning thereby, it varies from the constitution to constitution and as per norms and mores of a society.
Accordingly, to consider each society’s norms and mores as one: arguing that the idea of capital punishment is against the norms and concepts of the United Nations and its laws, and therefore it must be abolished, is nothing but an attempt to undermine each society’s own concept of dignity.
Yet that is a separate debate. But the crux of the above terse three lines is that: dignity varies from society to society and morality. One’s morality may be an offense for another. Thus, it is an absurdity to consider the whole world’s morality and mores as one. Such is the case also with dignity.
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As Professor Aharon Barak (former chief justice of Supreme Court of Israel) said in the forwarded portion of the book mentioned above: “the concept of human dignity will be determined in accordance with the perspectives of the enlightened public in Israel, in accordance with the purpose of Basic Law…” Therefore, as a natural outcome: here in Pakistan, the right to dignity must be interpreted as per our mores and norms.
Since “at the center of human dignity are the sanctity and liberty of life. And at its foundation are the autonomy of the individual will, the freedom of choice, and the freedom of man to act as a free creature”. That is why dignity revolves around the concept of liberty. However, liberty is not unbridled, and it is and was always limited freedom.
Unless one does not interfere in the freedom of the other, it is unlimited; it is limited as soon as one transgresses into the others’ freedom. This is what John Stuart Mill the great proponent of liberty taught us. In Pakistan, under Article 14 of the Constitution of the Islamic Republic of Pakistan, 1973, the concept of dignity is preserved as: “the dignity of man… shall be inviolable.”
The prime considerations should be the dignity of the child, not that of the offender
The Supreme Court of Pakistan in 1994 in a suo-motu case on the question of public hangings has held that “the dignity of every man is not subject to law but is an unqualified guarantee… inviolable and execution in public, even the worst criminal appears to violate the dignity of man”.
Here the question is: what is the purpose of punishment? Is it to save the dignity of the transgressor, the one who dreadfully and with impunity violates the dignity of a child, through death, child pornography, by selling and earning from it, then what is the value of the dignity of the child? Should the child or their parents be satisfied, if the sinner is punished with ‘due respect’ for his dignity?
Furthermore, as famous professor and philosopher George Kateb argued in his book, Human Dignity, that “human dignity connotes the fact that human beings are different from the other creatures, the human species is indeed something special in that it possesses valuable uniqueness or distinctiveness. Humanity is not the only natural, whereas all other species are only natural”.
So, is the one who—like an animal—transgresses and ruins the child’s dignity with no fear of God and the law of the land—because he knows he would at maximum be incarcerated for fourteen years— yet deserves to be called human and so to have a dignified punishment?
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Needless to reiterate here that, liberty is not unlimited: and dignity is entangled with freedom; if one violates the liberty and dignity of the other, he should be deprived of the dignity of his own. True that dignity is inviolable: but not when one transgresses, ruins, and depraves another from dignity.
It would be itself against dignity to think: let the sinner keep his dignity. As one, the purpose of punishment is retribution: to the satisfaction of victim, not that of society. Amongst five paramount purposes of punishment: deterrence, incapacitation, rehabilitation, retribution, and restitution; retribution is the one that deals with the victim’s satisfaction as a criterion to ‘justice’.
Right, that crime is considered against society but it is the victim who has suffered most. So, it must be his satisfaction and his retribution. Moreover, the pragmatic concept of punishment is deterrence: an exemplary act of the state so that the habitual offenders may deter and refrain from their sins.
In a nutshell, as the natural law in all divine religions: Islam, Christianity, and Judaism, is Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal”(Quran: Surah Al-Maida, verse No. 45)
Jeremy Bentham is the chief proponent of this theory; he argued that sentences should be calculated to be sufficient to prevent others from committing the offense. Therefore, what are we achieving by not giving capital sentences or in extreme cases by not publically executing the transgressors: especially the hardened, desperate, and dangerous criminals.
The one who violates the dignity of a child, in its extreme form of child rape, death, even pornography? The prime considerations should be the dignity of the child, not that of the offender. Moreover, if one argues—as it is being done in newspapers and articles—by referring to arguments made by institutions such as Amnesty International—that deterrent and retributive punishments do not serve the purpose and it does not diminish the crime rate.
Then to them, the question I have is whether incarceration serves your purpose: has incarceration brought forth the required results? Have habitual offenders been brought to line by imprisonment? How much time is considered sufficient for incarceration to work? Above-all, could we satisfy the child that we have given him justice through mere confinement of his culprit?
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Last, as per our norms and mores, Islam, too, has the concept of retribution for the punishment. Because in retribution, the same injury is caused to the offender as a punishment, as Holy Quran said: “the punishment for an injury is an injury equal to it” (Quran: Surah Shura, verse No. 40).
Accordingly, what if the injury is caused to the dignity of the child? Then, should it not be caused to the dignity of the offender? For clarification, needlessly, it is pertinent to describe here that an injury can be to the body, mind, and reputation in criminal law. Can we extract and distinguish ‘Dignity’ from the terms ‘Reputation and mind?’ Indeed, we cannot.
In a nutshell, as the natural law in all divine religions: Islam, Christianity, and Judaism, is “Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal” (Quran: Surah Al-Maida, verse No. 45); so, here it should be as well: “Dignity for Dignity.”
Hafiz Muhammad Azeem is an advocate of the high court and writes on various topics. He can be reached at Khokhar. azeem@yahoo.com. His articles can be accessed on hmazeem.blospot. com. He holds an LL.M. from the Punjab University and teaches law.
The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.