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This decision was extremely good news for the 7,379 prisoners who are now on death row. However, the Supreme Court, in the person of the incumbent chief justice who was appointed by President Pervez Musharraf in November 2007, has taken upon itself to question the abolition of the death sentence and has asked the attorney general and the Ministry of the Interior and Law to submit written replies within a week explaining the government's position on death row prisoners. The next hearing of the case will be July 14.
This is the second time that Chief Justice Abdul Hameed Dogar was disturbed to see that the government intended to abolish the death sentence. On April 28, the chief justice also asked the attorney general about the government's plans to submit legislation to commute the death sentence to life imprisonment.
On June 21, Prime Minister Yousaf Raza Gillani announced that his government would recommend to the president to commute the death sentences of thousands of prisoners to life imprisonment as part of a birthday tribute to slain former Prime Minister Benazir Bhutto; and on July 2, the cabinet approved this initiative of the prime minister. Some of the death row prisoners, which include 44 women and two children, have been in custody awaiting their fate for several years.
Muslim clerics began opposing the commutation of the death sentence on June 24. They viewed it as repugnant to Islamic fundamentalism and the teachings of the Holy Koran. A new environment is thus being created by vested interests to dehumanize society by supporting the death sentence, thereby condoning violence perpetrated by the state.
It is both surprising and disturbing that within 48 hours of the announcement by the Cabinet the chief justice of Pakistan reversed the decision through suo motu action, in other words, on his own initiative. Yet he has at no time explained how commuting the death sentence can be contrary to the interests of the public. Pakistan is a signatory to the International Covenant on Civil and Political Rights, in which Article 6(1) states, "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."
Moreover, shortly after taking this action, the Supreme Court of 13 judges – who were handpicked by Musharraf – revalidated as "inevitable" the president's controversial imposition of a state of emergency in November last year and his sacking of judges who did not endorse his unilateral and preemptive action to preserve his re-election by the outgoing National Assembly.
The judgment also made the observation that the deposed judges had "transgressed constitutional limits" and had brought the functioning of the government to a near standstill. Chief Justice Dogar stated that Musharraf's actions had become "inevitable" in order to save the country from "chaos and anarchy."
Musharraf has never been in favor of abolishing the death sentence. During his rule, his government voted against a resolution on a moratorium on the use of the death penalty on Dec. 18, 2007, at the U.N. General Assembly. It has become quite obvious that the sitting judges of the Supreme Court, working at the behest of Musharraf, do not want to uphold the right to life of the citizens of Pakistan as envisaged in the International Covenant on Civil and Political Rights, a cornerstone of the United Nations' International Bill of Human Rights.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia. His blog can be read at http://srilanka-lawlessness.com/.)
