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Death Penalty Is A Cruel, Unjust Punishment

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Pakistan’s criminal justice system, notorious for long, drawn-out litigation, still churns out death sentences at the trial court level at an alarming rate, especially when considering that appellate courts overturn a high percentage of these cases. Not only do our cases go on longer than they ought to, but our sentences are also implemented at a glacial place.

For instance, a citizen sentenced to death isn’t executed within months of the confirmation of their sentence and the exhaustion of their appeals. Most are executed after serving an average of 10 years behind bars, and others die of natural causes while awaiting their execution date. Others remain incarcerated after being convicted decades prior, despite having served more than a life sentence. Many grow old and sick, often due to the neglect of authorities. But even when it is warranted on the facts, not to mention allowed by our laws, very few are re-sentenced and rarely on merit.

In such capital cases, where the stakes are high, and the litigation protracted, how is it that trials are still ridden with irregularities, and key pieces of evidence missing? And how is it that the court does not consider new factors relevant to a person’s continued incarceration or the legality of the impending execution of their sentence?

A major part of the problem is the quality of services provided by legal counsel. Most defendants from low-income backgrounds report that their lawyers are difficult to reach, do not keep them informed of the proceedings in their cases, and do not meet them face to face to build a defence. This results in key elements of the case, including mitigating factors that can contextualise the accused’s actions, to remain hidden from the court – despite the passage of years during the trial, and sometimes decades post-trial.

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Lack of access to an experienced lawyer and defence team deprives an accused person of the ability to pursue the exculpatory and mitigating factors in their case. There are times when individuals don’t even recognise that such factors exist. The dearth of legal mechanisms to ensure the same is brought to light exacerbates this issue, leading to little institutional learning in this regard – it seems as though neither the lawyer nor the judge can extract relevant facts from a case in order to ensure that sentences are not arbitrary.

In Pakistan, there is no separate sentencing hearing, wherein a judge can determine what the appropriate punishment is for a guilty person. This determination of sentence is made within the same trial that determines guilt. Even if a good lawyer can raise mitigating factors, judges are not provided sentencing guidelines to follow as is the case in other jurisdictions, including within South Asia. Moreover, as there is no requirement of a separate pre-sentencing hearing, this element of the trial – which is just as important as the determination of guilt – can be entirely overlooked. This produces judgments that vary wildly across courts sentencing for similar offences. When the exercise of the discretion left to judges isn’t based on clear guidelines, the law loses its certainty, and punishment loses its meaning.

In 2002, the first World Day Against the Death Penalty was organised, in the hopes that capital punishment would soon be recognised as barbaric and eliminated as a form of retributive justice. Every year, the day lends focus to a specific issue related to death row. In 2020, it aims to shed light on the importance of the effective legal representation during the arrest, detention, trial and post-trial stages in capital cases, without which irreversible punishments are likely to be disproportionate to the offence and wrongfully imposed on innocent individuals.

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Lack of access to effective legal representation has led to the avoidable deaths of many at the hands of our state. Especially in cases where people had psychosocial disabilities, or they were defending themselves, or had acted without any premeditation and were overcome with remorse. In capital cases, effective legal representation is the difference between life and death.

Concrete improvements in this area are long overdue. There must be a code of ethics for Pakistani lawyers, which should be taught as a compulsory course to gain a professional legal qualification. The government, when appointing state counsel to economically vulnerable individuals, must ensure that the highest quality representation is provided to those at risk of being awarded capital punishment.

Moreover, Pakistan needs to come up with its own sentencing criteria which can result in less arbitrary and more reasoned decision-making, allowing judges to punish with all the facts in hand as opposed to turning a blind eye to very real systemic issues that often create the circumstances for these crimes to take root.

 

 

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Naya Daur