“A Most Serious Crime”: Pakistan’s unlawful use of the Death Penalty

On December 17, 2014, Pakistan lifted a seven-year moratorium on the death penalty. Coming in the wake of the tragic terrorist attacks on the Army Public School in Peshawar, the resumption of executions initially applied only to individuals convicted of terrorist offenses. Yet within several months and without public justification, the Interior Ministry lifted the moratorium for all death-eligible crimes. As a result, more than 8,000 individuals are now at risk of execution, many for offenses that are ineligible for capital punishment under international law. Since ending the moratorium, Pakistan has executed more than 400 people, bringing the country’s annual rate of executions to the highest point in its history and making it the third most prolific executioner in the world.

In the twenty months since the lifting of the moratorium, the Government of Pakistan has carried out 418 executions. This means that an average of 6 executions have been carried out every week since the death penalty was reinstated, with the highest number of executions taking place in the province of Punjab. Whilst there is no confirmed figure for Pakistan’s total death row population, in December 2014, the Ministry of Interior and the Ministry of Law and Justice stated that there were 8,261 prisoners on death row in Pakistan. Therefore, thousands of prisoners remain at risk of imminent execution.

Initially, in December 2014, executions were reinstated for terrorism-related offences only. In March 2015, however, the Government “ without any public justification “ bought back the death penalty for all capital offences. Thereafter, from December 2014 to March 2015, the Government executed a total of 24 people, or an average of 2 per week. That rate more than doubled in March 2015 to over 5 per week, when executions were also resumed for non-terrorism cases. In the period March 2015 to September 7 2016, the Government has executed an alarming total of 393 people.

Pakistan’s resumption of executions has drawn sharp criticism from international actors. On June 11, 2015, UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein said, the idea that mass executions would deter the kinds of heinous crimes committed in Peshawar in December is deeply flawed and misguided, and it risks compounding injustice. “That same week, the European Union delegation mission to Pakistan urged its government to reinstate the moratorium immediately to commute the sentences of persons sentenced to death” in order to comply with its international legal obligations. British and German officials have also urged Pakistan to reconsider its decision.

Pakistan’s imposition of the death penalty is, at its core, arbitrary. To begin with, Pakistan does not reserve the death penalty for the most serious crimes, as required by international law, but instead imposes execution for commonplace offenses, such as kidnapping and drug-trafficking. Second, Pakistan’s justice system is ridden with deficiencies and abuses of authority. Police routinely coerce defendants into confessing, often by torture, and courts admit and rely upon such evidence. Poor defendants must rely on attorneys who typically provide only cursory and ineffective representation.

Once sentenced, defendants lack effective recourse to post-conviction relief, even in the face of new exonerating evidence. Finally, the Anti-Terrorism Act of 1997 offers even fewer safeguards than the ordinary criminal justice system and has the effect of fast-tracking convictions.

Each of these failings constitutes a human rights violation in itself; taken together, they reveal an unreliable system that is fundamentally incapable of administering the ultimate and irreversible penalty of death. As the cases examined in this report illustrate, the systemic problems described above fall most heavily on Pakistan’s most vulnerable members the poor, juveniles, and persons with mental illness and development and intellectual disabilities.

This report, written by the Allard K. Lowenstein International Human Rights Clinic at Yale Law School (Lowenstein Clinic) in partnership with Justice Project Pakistan (JPP), documents the many ways in which Pakistan’s application of the death penalty is in breach of its obligations under international law. In analyzing Pakistan’s use of the death penalty, the authors focused on -crucial case- that exemplify the numerous international law violations and that illustrate the particularly damaging impact of these violations on certain vulnerable populations: juveniles, the mentally ill, and persons with physical disabilities. Relying on public records for a dozen of JPP’s clients sentenced to death, the report tracks the many junctures at which violations occur, from charging to sentencing to execution. Several of the individuals selected have been executed since research for this report began.

The systemic violations illustrated in this report compel the conclusion that Pakistan’s continuing practice of capital punishment violates international law. The irreversible nature of execution mandates the immediate reinstatement of the moratorium on all executions. Yet a moratorium alone will not suffice. Today, Pakistan continues to sentence to death persons who are juveniles, mentally ill, or very likely innocent. What procedural safeguards exist in theory are largely ignored on the ground. Given the multi-level failings of its criminal justice system, Pakistan should suspend indefinitely all capital sentencing and launch investigations into those cases marked by allegations of juvenility, mental illness, the use of torture and other abuses of authority, and evidence of innocence.