June 18, 2008

Yusuf Raza Gillani
Prime Minister
Islamabad
Pakistan

Re: Death Penalty

Dear Prime Minister Gillani,

Human Rights Watch is a nongovernmental organization that monitors human rights in more than 70 countries around the world. We appreciate the policy goals you have announced to address many of the human rights problems your government inherited after more than eight years of military rule. We welcome the goals related to lifting media restrictions, freeing detained lawyers and judges, and releasing political prisoners.

We also appreciate the steps that your government has taken to embed international human rights standards into Pakistani law by ratifying the International Covenant on Economic, Social and Cultural Rights and signing the International Covenant on Civil and Political Rights, as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Another subject requiring your attention is the death penalty. Human Rights Watch is opposed to the death penalty in all circumstances because it is a punishment of an inherently cruel, inhuman and final nature. Wherever it is in force, the death penalty is plagued by arbitrariness, unfairness, and racial, class or other bias, highlighting the necessity of its abolition.

Charges carrying the death penalty have significantly increased in recent years in Pakistan, resulting in a much higher number of death sentences and executions. Pakistan has over 95,000 people in custody for criminal offenses, of which approximately 67 percent (about 63,600) are pre-trial detainees. Out of the more than 31,400 convicts, nearly a quarter—over 7,000 individuals, including almost 40 women—have been sentenced to death, and are either involved in lengthy appeals processes or awaiting execution after all appeals have been exhausted.

The number of persons sentenced to death in Pakistan and executed every year is among the highest in the world, with a sharp increase in executions in recent years:

  • In 2004, 394 prisoners were sentenced to death and 15 were hanged.
  • In 2005, 477 people were sentenced to death and 52 were hanged.
  • In 2006, 446 people were sentenced to death and 82 people were hanged, including one juvenile offender.
  • In 2007, 309 prisoners were sentenced to death and 134 were hanged.

Most of those sentenced to death are poor and illiterate. Some face discrimination as members of religious minority communities. Many were held without due process of law and faced trials that did not meet international fair trial standards.

As you know, torture is endemic in Pakistan. This is due in part to the absence of a scientific, systematic and up-to-date system for investigation. For example, forensic facilities, including inadequate training, equipment and laboratories are poor. In the absence of proper forensic tools, police more often than not obtain “evidence” based on confessions and witness testimonies through various kinds of torture, mistreatment, and intimidation. Although there are many cases of detainees being severely injured and even dying in police custody, the courts rarely dismiss cases where there are credible allegations or evidence of torture, and few police officers are ever prosecuted, let alone convicted, for torture or illegal detention. Given the brutality of methods used—including beatings, sleep-deprivation, upside-down hangings, rape and electro-shock—it is not surprising that detainees often confess to crimes they did not commit.

Torture can lead to wrongful convictions and the execution of innocent people. Lawyers and human rights activists believe that there are many cases where the person executed was innocent.

Human Rights Watch is also concerned by the use of the death penalty by special courts like the anti-terrorism, narcotics and military courts, all of which fail to deliver fair trials, not least because these courts are not independent of the executive. Appointments to the special courts are meant to be made in consultation with the High Courts, but this requirement is often ignored.

Due process of law is also violated when the prisoner is denied an adequate opportunity to present a defense. Of special concern in death penalty cases is the right to counsel. Individuals sentenced to death are disproportionately poor and unable to afford competent counsel. Poor people lack access to competent counsel at both the trial and appellate stages. According to one study on condemned prisoners conducted in 2002, 71 percent of condemned prisoners in the North West Frontier Province were uneducated and over half (51 percent) had a monthly income below Rs 4,000 (US$50). The average fee for an appeal to the High Court in murder cases is around Rs 60,000 (about US$900). This creates an unequal system of justice, in which those with financial or political resources are able to obtain better legal services and avoid the death penalty.

State-funded legal counsel in death penalty cases in Pakistan is wholly inadequate. In cases where the possible punishment is death or imprisonment for life and the defendant is unrepresented, or declares him or herself financially unable to afford counsel, the court is obliged to engage a lawyer at state expense. Lawyers who voluntarily place their names on a list maintained for this purpose are paid a paltry Rs 200 per hearing (less than US$5). It is therefore not surprising that the Pauper Counsel list is mainly composed of either young and inexperienced lawyers or those without briefs—lawyers who should not be representing persons in death penalty cases. Pakistani law provides no redress or remedy on the grounds of incompetent or ineffective legal representation. In many death penalty cases it appears that the absence of effective counsel is the difference between whether the death penalty is confirmed or set aside. Thus, many end up receiving the death penalty, not for the worst crime, as international law requires, but for the worst lawyer.

A recent case that resulted in an execution highlighted several problems, including lack of access to counsel, torture in custody, and possible religious bias. In 2003, an illiterate army janitor named Zahid Masih was arrested along with three others for allegedly molesting and murdering the child of an army officer. Masih’s family was not told of his whereabouts for more than two years, until after he was convicted without counsel on March 10, 2006 by a military court. The court sentenced Masih, a Christian, to death while acquitting the other three accused (who were all Muslim). Masih was allegedly tortured for 28 days and made a series of confessions. He also maintained that some army officers and their orderlies had convinced him that he would be absolved of charges if he confessed. On March 12, 2008, Masih was hanged in Peshawar Central Prison.

Pakistan currently has 26 criminal offenses that allow for the death penalty—as opposed to just two, for murder and treason, at the time of independence in 1947. Several of these laws were enacted as a specific response to specific law and order situations, for example, when kidnapping for ransom was on the rise or when some particularly heinous cases of violence against women had been reported. Criminal offenses carrying the death penalty include murder, armed robbery, treason, mutiny, railway sabotage, giving false evidence that causes an innocent person to be executed, kidnapping, gang rape, stripping a woman of her clothes in public, child smuggling, hijacking, arms trading, drug smuggling and trafficking, extortion, terrorism, blasphemy and illegal sexual intercourse (including between partners not married to each other). This list includes many crimes that cannot be justified as a “most serious crime” as required for the death penalty under the International Covenant on Civil and Political Rights. Until the death penalty is banned in Pakistan, there is an urgent need for a review to remove the death penalty as a sentence for many of these crimes.

Consistent with international trends, Human Rights Watch urges Pakistan to abolish the death penalty in all circumstances. We recognise that there will be resistance to this move, particularly in cases of murder and other violent crimes. Steps will need to be taken to assure victims and families of victims of such crimes that they, too, are receiving justice, and that there are other ways to achieve justice.

We realize abolition of the death penalty will take time. Until the death penalty is abolished by an act of Parliament, we urge you to announce an immediate moratorium while your government establishes a commission to review the application of the death penalty, the many offenses for which it can be applied, and implement reforms to ensure that international fair trial standards are met. There is precedent for this: when Benazir Bhutto was elected prime minister in 1988, one of her first acts was to commute all death sentences to life imprisonment.

On December 18, 2007, the UN General Assembly passed a resolution by a wide margin calling for a worldwide moratorium on executions. When the General Assembly reopens discussion on this issue in September of this year, we hope that Pakistan will have already either abolished the death penalty or joined in this moratorium. Until that time, Human Rights Watch requests that at a minimum you ensure that the following key issues are addressed before any death sentence is handed down or carried out. These include:

  • Ensure that defendants in death penalty cases have prompt access to competent counsel.
  • Ensure that torture and other ill-treatment is not used to obtain confessions or evidence, and that any confessions or evidence so obtained are excluded from trial.
  • Ensure that all fair trial rights provided under Pakistan and international law are met.
  • Limit the offenses under which the death penalty can be awarded to only “the most serious crimes.”
  • Review the laws and witness requirements for crimes in which the death penalty is applicable to ensure compliance with international due process standards.
  • Ensure that Pakistani federal law with a bearing on death penalty issues, such as the Juvenile Justice System Ordinance, is applied to the Provincially Administered Tribal Areas and the Federally Administered Tribal Areas.

Thank you in advance for your consideration, and we look forward to an open discussion with you and members of your government on this matter and others of mutual concern.

Yours sincerely,
Brad Adams