The resolution passed by the National Assembly in early February 2020, calling for the public hanging of convicted child killers and rapists, created quite a stir. Moved by Parliamentary Affairs State Minister Ali Muhammad Khan, it once again ignited the debate on a subject matter, which had been put to rest in the past by the Supreme Court and other courts of the country.
It is interesting to note that the Federal Minister sought public hangings of convicted child rapists and killers through referring to the Holy Quran, i.e., “The Quran commands us that a murderer should be hanged.” It is crucial to assess the legal position on the subject in light of the legal provisions along-side various pronouncements of the superior courts of the country on the subject.
Article 14 & 8 of the Constitution of Pakistan, 1973, provides that the “dignity of a man and, subject to law, the privacy of home, shall be inviolable.” & laws inconsistent with or in derogation of Fundamental Rights to be void.
Equilibrium has to be maintained between two contending interests at stake; one, individual liberties and positive rights of the citizen which were declared by the Constitution to be Fundamental
1. Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
2. The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void, respectively.
Inviolability of Human dignity
In 1994 the Honorable Supreme Court of Pakistan in its suo moto jurisdiction took cognizance of the matter as a question of public importance, namely the validity of public hangings and execution of punishments in public had arisen.
Through judgment reported as 1994, SCMR 1028, the five-member bench of the SC, headed by the then CJ Naseem Hassan Shah, observed that public hangings even for the worst of criminals violate the right to human dignity as enshrined in Article 14.
According to the Court, “According to this provision, the dignity and self-respect of man has become inviolable, and this guarantee is not subject to law but is an unqualified guarantee. Accordingly, in all circumstances, the dignity of every man is inviolable and execution in public, even for the worst criminal, appears to violate the dignity of man and constitutes, therefore, a violation of the fundamental right contained in Article 14.”
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As a result, it categorically stated that public hanging, even for the worst of criminals, was a violation of human dignity and, therefore, unconstitutional. In its judgment, the Honourable Court also relied on the “Universal Declaration of Human Rights in Islam” (UDHRI), a charter produced by leading Muslim scholars in London in April 1980 to state that public hangings amount to violations of the right to protection from torture enshrined under Islam.
Article 7 of UDHRI declares that a state is not permitted to torture a criminal, especially a suspect: “God will inflict punishment on those who have inflicted torture in this world.”
The case was disposed off after the statement by the Deputy Attorney General, and he stated before the honorable Supreme Court that “the Government had decided, as a matter of policy, that it will not carry out execution of criminals’ sentence to death in public, despite, the powers vesting in it to do so under section 10 of the Special Courts for Speedy Trials Act, 1992”.
In other words, they will not resort to public hangings. Article 7 of UDHRI declares that a state is not permitted to torture a criminal, especially a suspect: “God will inflict punishment on those who have inflicted torture in this world.” In the case of ‘Dr. Kumail Abbas Rizvi vs. UOP’ case, the Supreme Court of Pakistan held: “The right to dignity was one of the cardinal principles of law and most valuable right, which had to be observed in every civilized society—human dignity, honor, and respect were more important than physical comforts and necessities.”
The Federal Shariat Court of Pakistan in the judgment reported as P L D 2010 Federal Shariat Court, ‘Muhammad Aslam Khaki vs. State’ held that “Inviolability of dignity of man is an inalienable right recognized by Article 14 of the Constitution. The accused or prisoner has a valuable right to claim freedom from torture under clause (2) of Article 14 of the Constitution…”
The court relied upon the inviolable standard of human dignity enshrined in the Quran and stated that: “The concept of human dignity received legal recognition for the first time when Ayat 70 of Sura 17, Sura Bani Israil was revealed.
It declared: And surely WE have conferred dignity on the children of Adam, and WE carry them in the land and the sea, and WE have given them of the good things, and WE have made them excel, by a high degree of excellence, most of those whom WE have created.”
Explicitly, with regards to the treatment of prisoners with dignity, the court stated that:
“Imam Muslim quotes a tradition on the authority of Abu Huraira RA wherein it is stated that the Holy Prophet (P.B.U.H.) strictly prohibited the believers from transgressing or treating another person with contempt or dishonoring him. Even to consider another person to be insignificant is a sin, according to this tradition.
We have already referred to a tradition in this judgment wherein it is stated that every human being is answerable to Allah for the manner in which he treats those who are under his control and supervision”. Article 189 of the Constitution makes the decisions of the Supreme Court binding on other courts, and Article 190 of the Constitution requires all executive and judicial authorities throughout Pakistan to act in aid of the Supreme Court.
Executions shall normally take place at the District Prison in which the prisoner was sentenced unless the warrant otherwise directs
In the light of Article 189, the SC, in its judgment of 1994 SCMR 1028, has decided on a question of law concerning the Section 10 of the Special Courts for Speedy Trials Act, 1992, by explicitly stating Special Courts for Speedy Trials Act, 1992-by the Deputy Attorney General.
In relation to the Original Jurisdiction of Supreme Court: Article 184 (3) states as follows: “Without prejudice to the provisions of Article 199, the Supreme Court shall if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article.”
In judgment reported as 2017 PLD 31, Karachi High Court held that:
“Equilibrium has to be maintained between two contending interests at stake; one, individual liberties and positive rights of the citizen which were declared by the Constitution to be Fundamental; and the other, need to impose social control and reasonable limitation on enjoyment of those rights in the interest of collective good of society.”
Also, in 2010 SCMR 1475, it was held: “By virtue of Articles 189 and 190 of the Constitution, the judgment of SC is binding on each and every organ of the state”.
Then in 2015, SCMR 976 Supreme Court ordered that “All executive and judicial authorities were constitutionally obliged to implement Supreme Court’s orders” and in 2015 PLC(CS) 201 the Supreme Court held that Both President and Prime Minister had to ensure that the judgments of the Supreme Court were implemented in its letter and spirit, and findings of the Supreme Court were not nullified.”
In October 2018, a divisional bench of the Lahore High Court, headed by Justice Sardar Shamim, while hearing a petition, filed by Zainab’s father, seeking public execution of convicted Imran for her rape and death, relied upon Section 22 of the Anti-Terrorism Act, 1997, which gives the government power to specify the manner, mode, and place of execution, and dismissed the said petition by discarding all the arguments in favor of public hangings.
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The bench was gracious enough to give me the audience as a public interest litigant. I got the opportunity to apprise the court on the legal position along with the case law on the subject with specific reference to 1994 SCMR 1028. Government of Punjab’s counsel referred to the Jail Manual, 1978, rule 364, which relates to the admission of Spectators and Place of Execution and reads as:
“Executions shall normally take place at the District Prison in which the prisoner was sentenced unless the warrant otherwise directs.” This provision cannot be brought into the ambits/purposes of “Public Executions” because it explicitly provides for executions to be conducted at the District Prison.
Violation of Pakistan’s International Obligations
As a member state of the United Nations (UN), Pakistan is required to uphold the human rights standards enshrined under the UN international human rights treaties that it has ratified, and this includes the International Covenant on Civil and Political Rights (ICCPR).
The Human Rights Committee, the monitoring body of the ICCPR, has stated that public hangings amount to a violation of human dignity under the Covenant. Similarly, in Resolution 2004/67, the UN Commission on Human Rights urges states to ensure that where capital punishment occurs, it shall not be carried out in public or any degrading manner.
During the review of its initial report before the UN Human Rights Committee in July 2017 and during the Universal Periodic Review in November 2017, the Government of Pakistan committed to reducing the scope of its death penalty to bring it in conformity with international human rights standards.
This includes a statement by the Ministry of Foreign Affairs to the Prime Minister recommending a revision of existing provisions of the Code of Criminal Procedure, 1898, and the Pakistan Penal Code, 1860, on the death penalty keeping in view the international commitments.
Furthermore, the commitment to reducing the scope of the death penalty has also been reinforced in its continuing dialogue with the European Union under the GSP+ mechanism. Keeping this in view, legalizing public executions would effectively serve to undermine the progress it has made in moving towards greater compliance of international standards.
Council of Islamic Ideology on Public hanging
The Senate’s standing committee on law and justice referred a proposed amendment in Pakistan Penal Code (PPC), seeking public execution of criminals charged with kidnapping an individual below the age of 14, to the esteemed Council of Islamic Ideology (CII) for its review and opinion. CII, in response to this, suggested an inconclusive and vague recommendation.
About amending Section 364-A of the Pakistan Penal Code, 1894 (PPC), to include the words “public hanging,” the CII stated that no such amendment to the law is required. It cited Rule 364 of the Prison Rules, 1978 and Section 10 of the Special Courts for Speedy Trials Act 1992, to establish the argument that existing legal provisions provide for public execution.
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This is factually and legally erroneous. While Section 10 of the Special Courts for Speedy Trials Act 1992 did indeed authorize public executions, allowing the Government to specify the “place of execution… having regard to the deterrent effect which such execution is likely to have”, this Act was repealed by Parliament in 1996 by Act No. XI of 1996.
Therefore, it can no longer be relied on as a basis for a public hanging. Besides, under Rule 364 of the Prison Rules 1978, a maximum of “twelve” “respectable male adults” may be admitted to “witness an execution” either “inside a prison” or into “the gallows enclosure” where the latter is “outside the prison.” The “wali [guardian] of the victim” may also witness the execution.
This makes it clear that the Prison Rules do not authorize the use of ‘public hanging’ as envisioned in Section 10 of the Special Courts for Speedy Trials Act 1992, or in the manner the term is being employed in public discourse and government statements. Under the Prison Rules, the execution cannot be witnessed by an unlimited number of people.
It is important to note that Rule 364 also contradicts, and thus undermines, the CII’s reliance on the definition of taifa as “a group of people present to witness the execution for the offense of Had-e-Zina… whose number can vary from three to forty”. Under the Prison Rules, no more than 12 people can witness such an execution.
Deterrence effect of public hangings
Public hanging does not serve as a Deterrent against Child Sexual Abuse. There is no empirical evidence to indicate that the death penalty, particularly public hanging, has a deterrent impact on crime.
More likely, it would further aggravate the under-reporting of crimes in these cases since research shows that in instances of child sex abuse, a significant majority of the perpetrators are family members or are otherwise known to the victim, in the capacity of teachers or neighbors.
(i) Pakistan
Journalist Ansar Abbasi cited an article by Sabir Shah, in which the latter had discussed how the public hanging of the killer and rapist of a young boy named ‘Pappu’ in 1981 had “effectively worked” as a deterrent. According to him, “The bodies of the culprits were made to remain hanging till sunset, and this stern punishment had served as an effective deterrent as no child was reportedly abducted or raped in the country for the next one decade or so.”
This statement is factually flawed and can be dispelled by cases reported in Pakistani newspapers in the 1980s and 1990s, compiled in the archives of the Human Rights Commission of Pakistan. Between 1983 and 1992, there were at least 11 reported cases of rape committed against minors in Pakistan, as young as four years of age. At least four of these cases occurred in Lahore, where the public execution of Pappu’s murderer and rapist had taken place.
(ii) Saudi Arabia
Deterrence to drug-related offenses
Drug-related offenses comprise one of the top categories of crimes in Saudi Arabia. In February 2016, there was a 23% increase from the previous year in the number of drug crimes reviewed by the prosecution in Saudi Arabia. Around 47,000 drug-related cases were reported, representing about 27 percent of the total number of cases reported.
Between January 1991 and June 2015, executions for drug-related offenses, the largest category of non-lethal crimes under ta’zir for which the death penalty is invoked in Saudi Arabia, constituted 28 percent of the total number of executions. Public executions are a common form of execution in Saudi Arabia.
There was a “significant rise” in executions recorded for drug-related offenses between 2012 and 2015, as recorded by Amnesty International. In 2012, 28% of those executed were for drug-related offenses, while in 2013, this number had risen to 32%. In 2014 and 2015, respectively, 47% of those executed were for drug-related offenses.
Public hanging negatively affects the psycho-social well-being of children by immunizing them to violence. The children who witness violence, such as public hangings, are more likely to reproduce it in later years
It is essential to consider these figures in the context of the total number of executions to determine the proportion of executions for drug-related crimes. Between January and June 2014, 17 people were executed in Saudi Arabia. In contrast, between January and June 2015, there were 102 executions in total. However, the rate of executions for drug crimes in both years was 47% of all executions.
This means that there were significantly more executions for drug crimes in 2015 than there were in 2014. Despite an increase in the number of executions for drug crimes in 2015 as compared to 2014, there was a 23% increase in February 2016 in comparison to the previous year in the number of drug crimes reviewed by the prosecution in Saudi Arabia.
It indicates that the increase in public executions for drug-related offenses in 2015 was not effective in deterring the commission of drug-related offenses at least in the first two months of the following year. Despite authorities in Saudi Arabia arguing that the death penalty is the “most effective means” to counter drug-trafficking, there is no reliable evidence that the death penalty is a more effective deterrent than other punishments.
Research findings carried out by the UN on the relationship between the death penalty, and homicide rates concluded that: “Research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole still gives no positive support to the deterrent hypothesis.”
Deterrence effect on Murder
There was a marked increase in the rate of homicide/ murder in Saudi Arabia between 2014 and 2015. In 2014, the United Nations Office on Drugs and Crime recorded a rate of 0.92% per 100,000 population, equalling a total of 283 offenses.
In 2015, this had increased to a rate of 1.50% per 100,000 people, totaling 472 offenses. In 2014, out of a total of 85 executions in Saudi Arabia, 42 executions were for murder offenses. By 2015, this number had almost doubled- there were 84 executions for murder offenses, out of a total of 152 executions.
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Despite an increase in the number of executions for murder in 2015 as compared to 2014, there was reportedly a 0.58% increase in the rate of homicide per 100,000 population in Saudi Arabia, as recorded by the UN Office on Drugs and Crime.
There were 189 more offenses of murder in 2015 than in 2014, indicating that the increase in public executions for murder in 2015 was not an effective deterrence for committing murder in the same year.
(iii) Iran
Rape
Executions for rape make up a large number of public executions in Iran. Despite this, there were 900 recorded crimes of rape in the year ending March 2012. Additionally, according to official estimates, around 90% of all child laborers in Iran are sexually abused or raped, and around 100-150 street children are killed every month for multiple reasons including rape. Public executions have not served to deter these crimes.
Drug-Related Offences
Iran has continually been one of the top five executioners in the world. In 2016, Iran accounted for 55 percent of all executions recorded globally, with more than 567 executions in total. Crimes that have the highest rates of executions are drug-related offenses, murder, and rape.
Iranian authorities have defended the use of public hangings as a method of execution, citing their ability to act as a deterrent to the commission of future crimes. According to a statement made by the Head of the High Council for Human Rights in May 2011, around 75 percent of executions in Iran are for those convicted of drug-related offenses.
A report by Amnesty International stated that the number of executions for drug offenses between 2009 and 2011 had “risen sharply.” In 2009, 166 out of a total of 389 executions were for drug offenses, amounting to a figure of 43 percent. In 2010, this proportion had risen to 80 percent.
Out of a total of 253 executions that were officially recorded, 172 were for drug-related offenses. However, there were “credible reports” of 300 further executions, the ‘vast majority’ of which were for drug offenses. By November 2011, out of a total of 600 executions, 488 were for drug offenses, equalling a figure of 81 percent of all executions.
Given the progressive increase in the number of executions for drug-related crimes between 2009 and 2011, we can argue that the death penalty has been largely ineffective as a deterrent against the commission of these crimes. An increase in the number of people being executed automatically indicates an increase in the number of crimes being committed and subsequently reported and reviewed by the prosecution.
There were 488 executions for drug offenses in 2011, as compared to 166 in 2009. This indicates a 34% increase in the number of executions for drug offenses. On another level, Iran’s recent abolishment of the death penalty for some drug-related offenses delineates cognizance of the fact that public executions have not been successful in deterring drug trafficking in the country.
In November 2016, Hassan Nowruzi, a spokesman for the Iranian Parliament’s Judicial Committee, was reported as stating that 5,000 people were on death row for drug-related offenses, the majority of them aged 20-30. He said most were “first-time offenders.”
In August 2019, Mohammad Baqer Olfat, the deputy head of the judiciary’s department for social affairs, said the death penalty had not deterred drug trafficking; in fact, he said, it was on the rise. Rather than the death penalty, he suggested, traffickers should be given “long prison terms with hard labor.”
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Public Hanging has been banned in comparative jurisdictions as a violation of the right to life and dignity. The Supreme Court of India in 1985 categorically established the unconstitutionality of public hanging with regards to the right to life (Article 21) of the Constitution of India.
The court in Attorney General of India v. Lachma Devi struck down a directive for the public hanging on the basis that “a barbaric crime does not have to be visited with a barbaric penalty such as [public hanging].
The court additionally noted that it was “glad to note” the absence of any stipulation for execution by public hanging in the jail manuals of any state in India, which would be a “revolting spectacle” reminiscent of “earlier centuries.”
Public Hanging impacts the psycho-social well-being of children
Public hanging negatively affects the psycho-social well-being of children by immunizing them to violence. The children who witness violence, such as public hangings, are more likely to reproduce it in later years. This is illustrated by the death of a 12-year-old boy in Iran in 2013.
The boy was inspired by public executions he had witnessed in his home province of Kermanshah in Western Iran. He and his 8-year-old brother hung a rope over a lamp-post. After that, he stood over a cart and tied the noose around his neck as his younger brother pushed the cart away, which led to the tragic death.
While the debate surrounding the introduction of public hanging for child sex rape is being framed as a child protection measure, it is likely to have an extremely adverse impact on the well-being of Pakistani children who witness it.
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As public hangings in countries such as Iran are spectacles that are conducted in front of large jeering crowds, the children that view them are likely to perceive them as theatrical performances, thereby becoming de-sensitized to the violence and its intended message. As a result, they are more likely to reproduce such violence in later years.
Keeping in view the Constitutional & Legal Provision, the case law of national & foreign jurisdiction, Pakistan’s international commitments, and religious injunctions, I believe public hangings cannot sustain in our system.
Furthermore, it is not the severity but the certainty of the punishment which prevents a criminal from committing a crime, and, I believe, there is a dearth of certainty of punishments in Pakistan regardless of the nature of the crime.
The writer is advocate high court practicing in Lahore and is a founding partner of Ahmed & Pansota (Advocates & Legal Consultants). He started his career with Cornelius, Lane & Mufti after doing Bar-at-Law from Inns of Court School Law, London and was called to the bar at Lincolns Inn, London, in the year 2005. Barrister Pansota also figures, as a legal analyst, in a weekly talk show called Zanjeer-e-Adal, on Capital TV and appears on other national TV channels. He also writes for various newspapers on current legal issues. He tweets @pansota1
The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.