On February 7, Pakistan’s National Assembly (NA) passed a resolution demanding public hanging for child rapists. The minister who presented the resolution, Ali Muhammad Khan, said that the public hanging of rapists and killers of children will “give a strong deterrent effect”.
Although the resolution is not “government sponsored”, as Shireen Mazari, the human rights minister, clarified on Twitter, it still raises questions about how far a state can go in punishing its people. Public hanging is a cruel and traditional way of punishment by death and has a close resemblance with mob justice. It undermines the dignity and privacy of the condemned and does not stand the scrutiny of a basic human rights test.
The resolution passed in NA today on public hangings was across party lines and not a govt-sponsored resolution but an individual act. Many of us oppose it – our MOHR strongly opposes this. Unfortunately I was in a mtg and wasn’t able to go to NA.
— Shireen Mazari (@ShireenMazari1) February 7, 2020
Dangers of public hangings include giving the state too much power to determine not only how to kill, but also to decide whether to make an individual’s death a public event. Such public spectacles can lead to lawlessness in society and will obscure the real problems of the criminal justice system. The retributive dogma that this proposition establishes – of not only delivering justice but also putting on show that justice is really being done – has the dangers of encouraging and normalising mob lynching.
Historically, methods of punishment have varied through different times. Around 399 BC, Socrates was required to drink poison for heresy while the Italian philosopher Giordano Bruno was burnt at the stake for the same ‘crime’ in 1600. Punishment by death often included hanging (both private and public), lynching, suicide, burial alive, a firing squad, beheading, drowning, mutilation and boiling.
Also read: Death Sentence as ‘Collective Conscience’ Is a Fraud Upon Justice
Michael H. Reggio, in his essay ‘History of the Death Penalty‘, writes that such methods were cruel – some people boiled for up to two hours before death. Many people, including women, were burnt alive. Deterrence and retribution were the driving forces behind these punishments.
During the last few centuries, however, there has been a shift away from the retributive doctrine of punishment to a form of punishment that is reformative. As a result, the methods of punishment by death have also changed. The change has taken place not only in the modes of punishment but also in the fact that over two-thirds of the countries have actually abolished the death penalty, either in law or in practice.
This reflects the progress that human rights jurisprudence has made in the areas of both domestic and international law. The idea of human dignity has seen acceptance in constitutional interpretation as well as domestic legislation. The preamble to the Universal Declaration of Human Rights (UDHR) recognises ‘inherent dignity’ of human beings as the foundation of justice.
In an excellent research paper, ‘The Dignity Canon‘ published in the Cornell Journal of Law and Public Policy in 2017, Noah B. Lindell identifies three core areas where legislatures may not intrude on human dignity. He identifies statutory language that exhibits disrespect for the intrinsic worth of human beings as:
“(1) [that] saddles certain groups with special burdens or provides them with lesser protections, or else provides unreasonably differential treatment to individuals; (2) fails to meet, in regard to any person, the minimum adequate level of treatment required by civilized society; or (3) unduly encroaches on areas of personal autonomy…”
Viewed through this prism, the NA resolution looks deeply problematic. Human rights belong to an individual on the simple qualification of being a human. They extend to criminals and prisoners as well, including those on death row. This singling out of one group of individuals runs contrary to equal protection law. The trial (public hanging in this case) of a human being should not become a marker of public jubilation. It is cruel and barbaric to invite people to witness the sacrifice of a human being in order to hide the deepest fractures of their own society.
Also read: Seven Reasons Why We Shouldn’t Demand the Death Penalty for Rape
Article 12 of the UDHR guarantees against arbitrary interference with the privacy and attacks upon the honour and reputation of a human being. Public humiliation of an individual in the manner provided by the NA resolution goes against the idea of privacy and right to a life of dignity. These basic rights cannot be taken away – not even from criminals.
The approach that the NA resolution seeks to adopt is problematic in other ways as well. Last year, when a woman was raped and killed in Hyderabad, a woman parliamentarian called for the mob lynching of the accused. A large chunk of the population appeared to approve of this method and as a result, the four accused were killed in a controversial “encounter”. It was an ugly display of mob justice, where the ethics of a fair trial and justice were undermined to satisfy public outrage. Such laws always carry with them the dangers of mob violence. Research also suggests that these regressive laws have mostly been invoked against the poor and the marginalised of many different societies.
Finally, it is argued that the deterrence argument that the resolution raises fails the statistical record that is available to us. In fact, there are societies where the death penalty has been abolished which have recorded lower crime rates than societies where capital punishment is still used.
Revenge and passion should not be the object of punishment. Public hanging will neither stop brutal crimes against children nor improve the standards of justice. It may momentarily assure us of justice, but ultimately it leaves all the questions associated with the criminal justice system unaddressed. Radical improvement of our institutions and the criminal justice system is the way forward, for that alone will help us identify and address the fissures within our society.
Aurif Muzafar is a lawyer and a voracious reader of non-fiction based in Kashmir. Human rights and constitutional theory fascinate him.