According to Sangmin Bae “Punishing people with death has a history as old as society itself, and it was not considered a human rights violation until the last decades of the twentieth century”
Capital punishment, or the death penalty, finds its legal justifications rooted in various principles across different jurisdictions such as India, Bangladesh, and Pakistan. Legally, proponents argue that it serves as a deterrent to serious crimes, deterring potential offenders from committing heinous acts due to fear of severe consequences. Additionally, in cases of particularly egregious crimes, capital punishment is often viewed as a proportionate response to the severity of the offense, providing a sense of justice to victims and their families. Furthermore, in some legal systems, capital punishment is perceived as a necessary tool for maintaining social order and protecting the safety and security of society by removing irredeemable criminals from society permanently.
From a social perspective, proponents of capital punishment often argue that it serves as a form of retribution, satisfying society’s collective sense of justice by holding offenders accountable for their actions. This retributive aspect is particularly prominent in societies where there is a strong emphasis on traditional moral values and the concept of “an eye for an eye.” Additionally, in certain cultural contexts, capital punishment may be perceived as a means of restoring balance and harmony to communities disrupted by violent crimes. However, it is important to note that there are also social and ethical concerns regarding the death penalty, including the potential for wrongful convictions, disparities in its application based on factors such as race or socio-economic status, and the moral dilemma of state-sanctioned taking of human life. As such, debates surrounding the justification for capital punishment remain complex and vary significantly across different jurisdictions.
Over the past few decades, the abolition movement has gained momentum across the globe. The recognition of the death penalty as a human rights issue, combined with the development of international human rights law and the political weight that has been given to the campaign led by European institutions to get rid of capital punishment completely, is the main explanation for the surge in abolition over the past quarter of a century. Another major development in the abolition movement at the dawn of the twenty-first century was the Rome Statute of International Criminal Court which currently has 124 States Parties. This Statute excludes the death penalty from the punishments that the International Criminal Court is authorized to impose, despite the court’s jurisdiction over extremely grave crimes such as crimes against humanity, genocide and war crimes. This development is a significant benchmark in an unquestionable trend towards the universal abolition of capital punishment. According to the Report of the UN Secretary-General, more than 150 of the 193 Member States of the United Nations have abolished the death penalty or introduced a moratorium, either in law or in practice. The report also endorses the fact that the international community as a whole is moving towards the abolition of the death penalty in law or practice. The publication of the United Nations Human Rights Office of the High Commissioner shows the trend towards the abolition of the death penalty and it recorded that only 22 countries implemented executions in 2015. Since 2007, the General Assembly in a series of five resolutions adopted in 2007, 2008, 2010, 2012 and 2014 respectively, calls for international moratorium on the executions. On November 19, 2016, the General Assembly passed its sixth resolution for moratorium on capital punishment. A total of 115 countries supported the resolution, 38 countries voted against and 31 abstained. The annual report of Amnesty International on ‘Death Sentences and Executions 2015’ reflects that 102 countries have abolished the death penalty for all crimes whereas this figure was only 16 in 1974. It is obvious that the world is moving away from the death penalty. In this context, there are two compelling reasons why the debate on capital punishment in India, Pakistan and Bangladesh is important.
Firstly, India, Pakistan and Bangladesh still retain capital punishment. In these three countries the persons charged with certain crimes are not only sentenced to death but also executed. India, Pakistan and Bangladesh always voted against UN General Assembly resolutions on moratorium on the use of the death penalty. According to Amnesty International, Pakistan and Bangladesh are among those countries in the world where the most people were sentenced to death during the year 2014. The report further reveals that these three countries are included in the list of 22 countries of the world that carry out executions.
Secondly, the discourse’s global dimension shows that almost one third of the world’s population of death row prisoners is confined in various prisons in Pakistan, India and Bangladesh. Some of these death row prisoners have been sentenced to death charged with various non-lethal offences in violation to article 6(2) of the International Covenant on Civil and Political Rights. Furthermore, the mental agony of the death row prisoners, languishing in overcrowded prison cells for many years, is intensified in the absence of an effective mechanism of legal aid at the state’s expense and the hard physical conditions of living in prison.
At the regional level, despite the diversity in South Asia, India, Pakistan and Bangladesh not only share common historical similarities in constitutional and statutory texts as former British colonies but also common stance on the application of capital punishment to combat terrorism and heinous crimes. In the name of security and the war on terrorism, these three countries have been applying capital punishment in the special courts constituted under special laws that bypass the under resourced and inefficient criminal justice systems in order to combat terrorism and other heinous offences.
In addition to special courts, military courts in Pakistan have multiplied the risk of arbitrary application of the death penalty. Pakistan lifted a six-year long moratorium on civilian executions and established military courts as part of the National Action Plan against terrorism in the wake of the horrific attack by Taliban terrorists on Army Public School Peshawar on 16 December, 2014 that claimed 145 lives, including school children. The 21st Constitutional Amendment amended Article 175 of the Constitution of Pakistan 1973 to provide military courts with justification, for a period of two years, to try civilians for terrorism related offences.27 According to the Pakistan Army’s press wing, 11 military courts convicted 274 persons on the ground o confession before the magistrate and the trial court- 161out of the 274 convicted persons were awarded death sentences.
