"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Monday, October 24, 2016

The barbarism of capital punishment

Barbarism. There is no other way to describe the senseless bloodlust and spiteful vindictiveness that characterises what passes for the criminal justice system in Pakistan. 

In a judgment that will long be remembered for its sheer idiocy and mind boggling insensitivity, the Supreme Court of Pakistan has declared that paranoid schizophrenia is not a mental disorder, and that those suffering from it can indeed be executed by the state. In deciding thus, the Court has sealed the fate of Imdad Ali, who suffers from the disease and has been languishing on death row after being convicted of murder in 2002. On at least 2 separate occasions, in 2004 and 2012, medical experts confirmed that Imdad Ali is a victim of mental illness, and that his condition is severe enough for him to not even understand what he has been convicted of or the nature of the sentence that has been decreed by the court. 

The Pakistan Penal Code prohibits the punishment of those suffering from mental illness. Pakistan is also a signatory to the United Nations Convention on the Rights of Persons with Disabilities. Medical experts around the world are unanimously of the view that paranoid schizophrenia is a very serious mental disorder. Yet, despite all of this, the Supreme Court has defied Pakistan's laws, its international obligations, and conventional wisdom by simply deciding that because the disease can be treated and managed, it does not somehow qualify as the type of disorder that could impede an execution. 

In order to arrive at this this determination, the court relied on definitions of schizophrenia provided in 2 English dictionaries, as well as a precedent from an Indian court case from 1988. The real irony of this is that even on these flimsy grounds (note the absence of reference to contemporary medical opinion) there is little substantive content that supports the Supreme Court's conclusions. Instead, the judges have simply changed the meaning of paranoid schizophrenia by definitional fiat. 

Condemnation of the Supreme Court's decision has been unsurprising and widespread. Yet, even as lawyers, doctors, and human rights groups continue to raise questions about the flaws in judicial process and reasoning that have brought Imdad Ali to the brink of execution, significant sections of the Pakistani populace have welcomed the decision. 

Once again, the medieval logic of an eye-for-an-eye has intruded upon the debate, with an army of armchair analysts and keyboard warriors frothily baying for blood; if someone is guilty of murder, they should be killed. It does not matter if they did not know what they were doing or lacked the mental faculties to understand the consequences of their actions; there is no room for empathy, compassion, or understanding in the justice system. 

The problems with this argument are numerous. Those who simply demand blood and vengeance every time a crime is perpetrated seem to give very little thought to the purpose of punishment itself. Is the whole point to wreak terrible retribution upon the perpetrators of crimes, is it to prevent further crimes, or is it to offer the chance for rehabilitation and reform? Can it truly be argued that depriving someone of their liberty for decades is less severe a punishment than execution? Can a purely retributive and reciprocal principle of justice even be implemented in a just and meaningful way, particularly in a context like Pakistan, where weak law enforcement and judicial institutions preclude the possibility of foolproof investigations and trials? Does the state even have the right to take lives in this fashion, given the well-established fact that innocents are sometimes executed for crimes they did not commit? Most importantly of all, in the context of Imdad Ali, what possible purpose is being served by killing a man who does not even understand what is going on around him? 

Capital punishment does not work. Evidence from around the world has shown this time and again. It does not deter crime, it is prone to abuse and severe miscarriages of justice, and it is often entirely disproportionate to the gravity of the offence committed. Yet, it continues to be championed as a panacea for all kinds of social ills in Pakistan. 

After a welcome moratorium on the death penalty that lasted for the better part of a decade, 425 people have been executed in Pakistan since 2014. This number includes people who were children when they were convicted of the crimes they allegedly committed, as well as others suffering from severe physical disabilities. The execution of these people (with thousands more death row prisoners slated to die in the years to come) has been justified in the name of national security, with the desire to punish terrorists serving as a basis upon which to reintroduce this form of punishment. How people accused of murder and other non-terror related offences can be executed on that basis is something that has yet to be clarified by the government and the courts. 

However, it is here that it becomes possible to see that the execution of people like Imdad Ali has nothing to do with justice, and everything to do with keeping up appearances. He must die, not because of adherence to some abstract principle of justice, but because the powers-that-be have decreed that capital punishment is a necessary tool in the fight against terrorism. 

To spare a life under these circumstances, no matter how legitimate the reason might be, would be to undermine the legitimacy of the whole exercise. To cast doubt on the rightness and justness of the state's right to execute people would be to potentially open the floodgates to further questioning about the utility and legitimacy of the death penalty. 

We live in a country where a video of a female reporter being assaulted by a security official in Karachi is welcomed with a chorus of cries lauding the latter for putting the woman in her place, and where religious minorities are routinely persecuted by mobs egged on by the calls emanating from the loudspeakers of their mosques. We as a society have come to revel in brutality, and the bloodlust that demands satiation through the execution of Imdad Ali has absolutely nothing to do with justice. 

Source: The Nation, Hassan Javid, October 23, 2016. Mr. Javid is an assistant professor of political science at LUMS.

Justice can't be blind


The facts are not in dispute in the case of 50-year-old Imdad Ali. He killed a cleric in 2001 and was sentenced to death for the murder but he was also certified as suffering from schizophrenia by government doctors. Since Imdad's condition means he cannot understand both his crime and the punishment handed out to him, he should not be awarded the death penalty. But a 3-member bench of the Supreme Court, led by Chief Justice Anwer Zaheer Jamali, rejected his appeal using the reasoning that schizophrenia is not a permanent condition and so does not fall within the definition of mental disorders. This is, to put it very mildly, an unenlightened view of mental illnesses. The Supreme Court relied on dictionary definitions of schizophrenia and a 1988 judgement by the Indian Supreme Court. Our understanding of mental disorders has progressed greatly in the last 30 years so that case was perhaps not the best precedent and it would have been better to rely on expert definitions rather than consulting a dictionary. The US National Institute of Mental Health calls schizophrenia a "chronic and severe mental disorder" and says "people with schizophrenia may seem like they have lost touch with reality." Since Imdad's schizophrenia is not in dispute, under this professional definition he should not be given a death sentence.

Pakistan's justice system has struggled to keep up with the times. When much of the world has made use of DNA testing to bring a greater degree of certainty in the guilt of accused criminals, we have been arguing about its merits. It was only in April of this year that Pakistan set up its 1st DNA testing lab. We have now shown ourselves to be similarly archaic in our understanding of mental disorders. It should be the duty of the state and the courts to provide defendants with every possible chance to prove their innocence, especially when the state has the power to take their lives. But, since the reintroduction of the death penalty, capital punishment has been handed out hastily and we are now seeing the consequences of that. Earlier this month, 2 brothers Ghulam Sarwar and Ghulam Qadri were successful in appealing their death sentences to the Supreme Court. The only problem was that they had already been hanged in Rahimyar Khan a year ago. How they were given the death penalty when all their appeals were yet to be exhausted will have to be explained and those who carried out the sentence made to face the consequences for what is essentially murder. Such cases do not get the attention they deserve because those given the death penalty are overwhelmingly poor and without the resources to properly fight their cases. They languish in jail for years - 15 in the case of Imdad - as the courts are too slow in taking up their appeals. That people who should not be imprisoned in the first place have to wait that long for verdicts is a denial of their rights to begin with. That they are then still executed only compounds the offence, turning it into a crime. Imdad, Ghulam Sarwar, Ghulam Qadri and many others like them deserve better from the justice system.

Source: Editorial, The News, October 23, 2016

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