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CAN LEGAL FICTION OVERCOME RELIGIOUS AND


CONSTITUTIONAL LOCKS?
DEATH PENALTY: A PAKISTANI PERSPECTIVE
BY

Tipu Salman Makhdoom*

I.

INTRODUCTION..

II.

PUNISHMENT & ITS EVOLUTION.

III. PHILOSOPHICAL JUSTIFICATION OF STATE KILLING


IV.

UTILITY OF DEATH PENALTY

V.

EUROPEAN UNION & UNITED STATES OF AMERICA..

VI.

PAKISTAN & ISLAM.

VII. LEGAL FICTIONMEDICAL VS. LEGAL DEATH..


VIII. CONCLUSION ..

Abstract:
Death Penalty is not really an issue in Pakistan. Mostly because its an ideological state,
Constitutionally having a religion which clearly provides for death penalty. In addition to this
ideological check, there is also a Constitutional check. Constitution of Pakistan states that all
laws need to confirm to Islam and Supreme Court of Pakistan says that among others, this part
of Constitution constitutes the Basic Structure of the Constitution which cannot be amended,
even by adopting the procedure that Constitution itself provides for its amendment!
After making a jurisprudential argument in favour of abolition of death penalty, this paper
explores the ideological and Constitutional checks in Pakistan legal system locking the death
penalty in the system. In the end, an argument is made that in addition to taking the political

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course, a legal path can be taken to abolish the death penalty in Pakistan, without violating the
Constitutional check; legal fiction.

I. INTRODUCTION:
Resumption of death penalty executions and confirmation of death penalty by High Court, in
high profile case of blasphemy accused Asia Bibi has once again heightened the controversy that
really started 7 years ago when Pakistan government imposed a moratorium on death penalty;
whether to keep capital punishment on the Pakistan statute book?1

* Author is Advocate Supreme Court of Pakistan.


(a)-Daily
the
Dawn,
dated
December
17th,
2014.
Available
http://www.dawn.com/news/1151408/nawaz-removes-moratorium-on-death-penalty.
Accessed on 20.04.2015.
1

at:

ISLAMABAD: Prime Minister Nawaz Sharif on Wednesday approved the removal of moratorium
on death penalty after the [Taliban] carnage in Peshawar [School] killed 141 people [mostly
school boys].

(b)-Daily
the
Dawn,
dated
October
17,
2014.
http://www.dawn.com/news/1138402. Accessed on 05.11.2014.

Available

at:

LAHORE: The Lahore High Court (LHC) on Thursday upheld the death sentence of a Christian
woman convicted of blasphemy four years ago, as her lawyers vowed to appeal.
Asia Bibi, a mother of five, has been on death row since November 2010 after she was found
guilty of making derogatory remarks about the Holy Prophet Mohammed (peace be upon him)
during an argument with a Muslim woman.
Two high-profile politicians then Punjab governor Salmaan Taseer and minorities minister
Shahbaz Bhatti were murdered in 2011 after calling for reforms to the blasphemy law and
describing Bibi's trial as flawed.

(c)-Daily
the
News
International,
dated
November
4,
2014.
Available
at:
http://www.thenews.com.pk/Todays-News-13-33907-Moratorium-on-death-penalty-causingrise-in-crime-terror. Accessed on 05.11.2014.
ISLAMABAD: The PML-N-PPP appeasement policy towards convicted terrorists, target killers,
rapists and those involved in other heinous crimes because of the continued moratorium on

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History of Pakistan would have been different had it abolished Death Penalty before 1979.
Zulfiqar Ali Bhutto2, the democratically elected Prime Minister of Pakistan, who was hanged in
1979 in a politically maneuvered decision,3 would have been released after review of his case in
1988, when his ousting dictator General Zia ul Haq perished in an air crash and his daughter was
elected as Prime Minister. Many people claim that Bhutto would have been to Pakistan what
Nelson Mandela had been for South Africa and what Aung San Suu Kyi is for Myanmar; if, and
only if, Pakistan did not have the harsh, brutal and irreversible penalty of killing people officially
i.e., under the authority of law!
This Article looks at different philosophical, moral and utilitarian aspects of death penalty and
sees whether it goes with our current values of collective conscience? Death penalty in many
countries is awarded for a number of different crimes ranging from murder to blasphemy to rape.
As a test case, this Article analyzes the justifiability of death penalty in cases of murder only. If

the death penalty is said to be the major cause for the rise in major crimes and terrorism in the
country.
Rangers, police, other law-enforcement agencies and even the judiciary have been repeatedly
calling for an end to the moratorium on the death penalty but for the past six years neither the
previous PPP government nor the present PML-N government lifted the informal ban placed in
September 2008.
This moratorium on the death penalty is not only in violation of the law, but is also un-Islamic.
The security forces personnel are of the firm opinion that this moratorium has badly hurt the
much-needed factor of deterrence against crime in Pakistan, where heinous crime is on the
rise.
2

Father of former Pakistani Prime Minister Benazir Bhutto.

International Federation for Human Rights & Human Rights Commission of Pakistan, Report
Mission of Investigation, Slow March to the gallows, Death Penalty in Pakistan, 2007, 17.
Available at: http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm.pdf/. Accessed on:
17th August, 2014.
3

The most famous death row inmate, former Prime Minister Zulfiqar Ali Bhutto, was executed
on 4 April 1979 on the charge of conspiring to murder a political opponent, after what was
widely held to be an unfair and politicized trial. Bhuttos appeal to the Supreme Court was
rejected by 4 judges out of 7; one of the 4 stated in hindsight that the death penalty should not
have been awarded, and that he regretted his decision to condemn Bhutto to death, which was
due mainly to the massive pressure he had been subjected to.

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death penalty cannot be justifiably awarded for murder, it cannot possibly be awarded for any
other crime.
A large majority of Pakistanis believe that death penalty is not only a just punishment for murder
it has most utility in terms of utility. They argue passionately that in our socio-economic
conditions it is the only option available to keep an effective check on the homicide rate. It is the
only punishment which creates special deterrent effect in the minds of the potential future
murderers. Moreover, it is the only mode by which victims death can be retributed.
Relying heavily on the notion that knowledge is by no means a product of presumptions4 and that
truth lies in the mind of the beholder,5 this paper analyzes viability of the major arguments in
favour of retaining death penalty as a possible punishment for murder. Going one step further,
the paper argues that legal, ideological and Constitutional obstacles in abolishing death penalty
from Pakistani jurisprudence can be overcome by utilizing the age old tool of legal fiction.
To put the argument in perspective, the next section will take a glance over the creation and
development of the concept of punishment in general.

Steven Connor, Postmodernist Culture, An Introduction to Theories of the Contemporary,


Blackwell, 1989 reprint 1994, 3,
4

Knowledge, it is often claimed, can only be gained and enjoyed about what is in some sense
over and done with.
5

Slavoj Zizek, Living in the End Times, Verso, 2010, xiv,

Though one may be tempted to oppose these perspectivesthe dogmatism of blind faith
versus an openness towards the unexpectedone should nevertheless insist on the truth
contained in the second version: truth, as opposed to knowledge, is, like a Badiouian Even,
something that only an engaged gaze, the gaze of a subject who believes in it, is able to see.

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II. PUNISHMENT & ITS EVOLUTION:


Conceptually speaking, punishment is a societys reaction to crime. 6 It used to be official
revenge on victims behave which later developed into a means to keep society safe of criminals:
by reformation, isolation or execution. Claiming its justification originally from moral values,
punishment, crossing the domain of divinity, landed in the realm of law. Law has its roots in the
collective value system of the society. 7 In the form of written word of statutes and judicial
decisions, law is the executed expression of societys political decisions based on its collective
conscience. But translation of political decisions of the society into executable legal decrees is
not the only mode in which law functions. Many a times law can be used as a tool to bring
change in social values. When some of societys social values go rotten and require consciously
engineered change, people who are placed by the society at the helm of its affairs are responsible
to evaluate situations & issues rationally, and take pragmatic decisions leading to practical
solutions, often violating and in the long run altering the social morality.
Historically, institution of punishment came into being with the formation of first formal
societies; the tribes.8 Benefits of keeping people together in shape of a tribal society gave rise to
the need for social order. Backed by religion, institution of punishment became the foundational
basis of tribal communitys peace & order. In those primitive societies, barring few punishments
which prescribed on the basis of utility, rest were inflicted indirectly (by allowing the victim
party to take its revenge) and were justified on the basis of retribution. 9 Gradually, with the
advent of modern society and development of social contract theory, state usurped complete

Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978) 301.

Al Gore, The Future, WH Allen, 2014, 363,

Behaviors that bring rewards become more common. Those that dont diminish. The elements
of our nature that are activated by rewarded behaviors gain strength. Social groups establish
values that reflect both the behaviors they wish to reward and those they want to discourage.
These values become embedded in tribes, communities, nations, economic systems,
institutions, and cultures.
8

Supra, note 6, 305-308.

Katherine S. Williams, Textbook on Criminology, 3rd ed, Blackstone Press Limited, 1997, 1.

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authority of deciding the quantum and mode of punishment along with the sole responsibility to
inflict it. And so the rationality seeped in criminal law.10
Admittedly, the modern criminal legal system is not an end in itself but is simply a means to
achieve peace and order in a society.11 In contrast to ancient legal systems which were mainly
based on the concepts of divine guidance and retribution, modern legal systems objectives of
criminal law are to prevent the commission of crime, discouragement of the potential criminals
and isolation of criminals from society in order to keep the community safe of them.12 Thus, in
terms of utility, punishments can aim for deterrence, isolation, reform, retribution or a
combination of above.13
Converging the argument from justification of punishments in general to the justification of
death penalty, next section is going to analyze the viability of the argument justifying states
right to kill its citizens under the authority of its own laws.

III. PHILOSOPHICAL JUSTIFICATION OF STATE KILLING:


Even on the philosophical plane, it is very difficult to justify a states right to kill. The notion of
a state having a right to kill provides no logical support to the notion that a state is right in
killing.14 Arguing otherwise is a sure trap to Petitio Principii. State gets right to kill simply by
10

Ibid, 1.

11

J.C. Smith & Brian Hogan, Criminal Law, Butterworth & Co. (Publishers) Ltd, 7th ed, 1992,

3.
12

Ibid, 3.

13

Ibid, 4.

14Hugo

Adam Bedau, Death is Different: Studies in the Morality, Law, and Politics of Capital
Punishment, Boston, Northeastern University Press, 1987, 46-63. Quoted in Joel Feinberg &
Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 1975, 4 th ed, 1991,
778.

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declaring so. The only condition on this unbridled power of the state is that this declaration
should be made following the prescribed law making procedure. Thus a state would claim its
right to kill as legal and valid if declaration to this effect has been made in accordance with the
legal procedure. Therefore this killing right, although would have ample support of procedural
compliance, would not be able to claim any moral or rational justification per se. The fact that a
statute has been enacted by following the prescribed procedure correctly cannot justify the claim
that it should have been enacted in the first place.15 So states justification to kill cannot be
derived from legality or validly of its death statutes. It will have to be looked for in the depths
of ethics and rationality.
One argument equates state and its citizen thereby holding that destroying states peace and order
amounts to killing it; which grants the state a right to kill such criminal citizen in self defence.
Even without going into the fallacy of equating state with its citizen, it is evident that an attempt
to level states right of granting death penalty with a citizens right of self defense is nave, to say
the least. Citizens are given right to kill in self-defense on the basis of special circumstances
where a citizens life comes under serious and imminent threat of being taken without the
authority of law, where there is not enough time for law to take appropriate action, and where
there is no alternative except to kill the attacker in order to save a life being taken unlawfully.
Although a murderer violates the laws of the State and thus, in a sense, attacks its existence,
neither such action poses any serious and imminent threat to States existence nor is there any
shortage of very feasible alternatives.16
A powerful argument of retentionists is based on retribution; claim that emotional satisfaction of
the victims family, by ding unto the criminal what he did unto the victim, is essential to attain
social peace and ideal justice. Now if it is claimed that law wants to equal scores with the
murderer on the basis of tit-for-tat, ideally speaking murderer should be awarded death penalty in
exactly the same manner, however brutal and inhuman that may be, in which he had killed the
victim.17 But for that, civilization is claimed to have grown too mature.18 A heavy weight view
15

Ibid, 778.

16

Ibid, 781-782.

17

Ibid, 786.

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against retaining death penalty is that not only it psychologically places killing in retribution on
the legal plane, 19 it also lowers the moral code of the society resulting in extinguishing of
communitys respect for life and brutalization of collective values of the society.20
Though punishment has always been a social necessity, and still remains so; death penalty,
although has always been an essential, rather popular punishment in ancient legal systems, is no
more essential. Proportionality and utility of punishment are at the base of contemporary legal
systems; that is why mens rea is an essential element in modern concept of crime. It is utilized in
order to objectively ascertain the intention and circumstances of the crime committed, so that
accidental criminals can be suitably punished, mainly as a warning to them as well as others, and
then assimilated back in the society while the habitual trouble makers can be marked and
quarantined. Ancient mode of permanently getting rid of the dangerous trouble makers has
always been execution. However, one rather humane way of keeping the society safe and free of
trouble makers is to sentence them to long imprisonments, which can be made to last, say, till the
natural death of the convict. In this respect, however, the argument for abolition of death penalty
is not based on the ground of granting lesser penalty, since very long imprisonments, like the
ones lasting till the natural death of the prisoner or comparable, can be anything but punishments
lesser than execution. The case for abolition of death penalty is also not based on the premise
of having any kind of sympathy with the murderer, rather it is based on the concept that death
penalty is no longer consistent with our self-respect.21
Recognition of global value against retention of death penalty is evident from the fact that more
and more countries are abolishing it. Since the start of this millennium, at least 18 more countries
The State Vs. T Makwanyane and M Mchunu, Constitutional Court of the Republic of South
Africa, Case No. CCT/3/94, decided on 06.06.1995, Para-233. Available at:
http://www.saflii.org/za/cases/ZACC/1995/3.html. Accessed on: 17th August, 2014.
18

John Lamperti, Ph.D., Does Capital Punishment Deter Murder? A Brief Look at the Evidence,
2010, 8. Available at:
https://www.math.dartmouth.edu/~lamperti/my%20DP%20paper,%20current%20edit.htm.
Accessed on: 17th August, 2014.
19

Furman Vs. Georgia, United States Supreme Court, 1972, 408 U.S. 238 (1972). Quoted in
Joel Feinberg & Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 1975,
4th ed, 1991, 766.
20

21

Supra, note 18, Para-189.

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have abolished death penalty from their law codes. 22 Moreover, even Rome Statute of the
International Criminal Court and the Unites Nations Security Council resolutions establishing the
International Criminal Tribunals for former Yugoslavia and Rwanda, though established to try
most heinous crimes, do not allow infliction of death penalty on the convicts.23
Death penalty is a punishment which is irreversible immediately and completely and in case of
conviction of an innocent, if discovered later on, there is no way of undoing the wrong, even in
part. It was precisely for this reason that in the year 2003, Governor Ryan of the State of Illinois
in the United States of America imposed a moratorium on the death penalty after discovering
that 13 of the 167 convicts on the death row were innocent.24 By any standard, there is more than
fair chance that our system of criminal justice will produce a much better ratio of innocent
convicts, if proper audits are carried out.
We do not allow abortion at any stage of the conception, although we are not sure at which stage
life begins in the fetus, because we consider human life too sacred to be terminated unnaturally
by humans. We do not allow euthanasia, although we may be certain that there is no chance of
recovery and that patient is undergoing an agonizing torture, again because we consider human
life too sacred. But we do not consider human life sacred enough to abolish death penalty and opt
to continue to kill people, calculatedly and legally, basically for two reasons: firstly to do unto
them what they have done unto others, and secondly, to scare others. The chances of innocents
being executed in this process by mistake are considered collateral damage!
After analyzing the concept of death penalty from philosophical angle and seeing if state can
justifiably claim to have a right to kill its rowdy citizens, the next section will look at the issue
empirically and will examine whether the experimental data supports the argument that death
penalty in fact plays a role in lowering the homicide rate?
International Commission against the Death Penalty, The death penalty and the most
serious crimes, A country by country overview of the death penalty in law and practice in
retentionist states, January, 2013, 7. Available at: http://www.icomdp.org/cms/wpcontent/uploads/2013/02/Most-serious-crimes_final_6Feb2013.pdf.
Accessed
on:
20th
August, 2014.
22

23

Supra, note 3, 10.

24

Ibid, 9.

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IV. UTILITY OF DEATH PENALTY:


Death is one of the oldest punishments in legal history. However, this reminiscence of the past is
still very rampant in the modern day world. By the figures covering period up to 2010, criminal
justice system of 102 nations of the world have death penalty for different crimes while 95
nations have abolished it.25 This means that our globe, in terms of number of states, is roughly
divided equally on the question of justifiability of death penalty. So here is a live and a lethal
issue on which the world is divided equally. This sounds challenging; both ways!
Modern day proponents of death penalty invoke all the aims of punishments in their favour; all
but onereformation.
First of all it is claimed that death penalty is the most effective deterrent against a crime, and
thus is justified as an appropriate punishment for heinous crimes like murder. Thus, on the basis
of utility it is the most useful and beneficial punishment for the greatest good of the greatest
number of people in the society. This argument, strong as it is, has one inherent weakness; it is
based on a premise that can be verified empirically. And so was it done, over and over again.
The hypothesis: Does death punishment provide a better deterrent to murder than long
punishment? was repeatedly verified by empirical data.26
Apparently there were some states imposing death penalty which had higher murder rate than
those which had abolished it.27 Moreover, many states in USA abolished death penalty and after
few years re-introduced it. Therefore specific empirical studies were conducted on the reliable
and comprehensive data. All the changes in homicide rate after abolition of death penalty and

David Garland, Why Does the U.S. Have Capital Punishment? Published 2012, 2. Available at:
http://photos.state.gov/libraries/amgov/133183/english/P_You_Asked_WhyCapitalPunishme
nt_English.pdf. Accessed on: 17th August, 2014.
25

26

Supra, note 19, 1.

27

Ibid, 3.

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also after its re-introduction were duly recorded and scientifically studied. However, no deterrent
effect of death penalty on homicide rate could be detected.28 Even a niche argument that death
penalty has special deterrent effect in cases of murder of police and prison staff, failed the
scientific test.29
A critical study of data and methods used for extracting and verifying empirical evidence in
support of deterrent effect of death penalty on homicide rate was conducted by Donohue and
Wolfers concluding that death penalty is not a major influence on the murder rate of a state.30
In 1972 Federal Supreme Court of United States of America held that 31 death penalty was
violative of U.S. Constitution. The view was over ruled by the Supreme Court in 1976. This
period of unconstitutionality of death penalty provided remarkable opportunity to the researchers
to collect data and scientifically study the deterrent effects of death penalty on murder rate.32
Despite performing thorough statistical studies on the data for the period before 1972, when the
death penalty was legal, from 1972 to 1976, when the death penalty was abolished, and for the
period after 1976, when the death penalty was re-instated in those states, no evidence could be
found to support the hypothesis that death penalty is more effective deterrent than long
imprisonment sentences.33

28

Ibid, 4.

Baily & Peterson, Murder, Capital Punishment and deterrence: a review of the evidence and
an examination of police killings, Journal of Social Issues, 1994, 53-74. Quoted in John
Lamperti, Ph.D., Does Capital Punishment Deter Murder? A Brief Look at the Evidence, 2010, 5.
Available
at:
https://www.math.dartmouth.edu/~lamperti/my%20DP%20paper,%20current%20edit.htm.
Accessed on: 17th August, 2014.
29

John J. Donohue and Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death
Penalty Debate, 58 Stanford Law Review, 791-846, 2006, 841.
30

31

Details below

Tammra Hunt, Does Death Penalty Deter Murder? Research Methods in Economics, Fall
2004, 8. Available at:
http://www.bus.ucf.edu/faculty/rhofler/file.axd?file=2011%2F2%2FHunt-Death+penalty.pdf.
Accessed on: 17th August, 2014.
32

33

Ibid, 13.

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This scenario, however, is not United States specific. For instance, Canada abolished death
penalty in 1976 and in next 25 years its homicide rate fell to almost half. On the other hand, as of
year 2000, homicide rate of USA, where in majority of states death penalty is applicable, was
almost 3 times higher than Canada. Not only that, but European Union countries, where abolition
of death penalty is a pre-condition to the join the Union, have much lower crime rate than
USA.34
A very persuasive argument by the third world countries in favour of retaining death penalty is
the difference of socio-economic conditions between developing and the developed nations. It is
argued that due to difference of such socio-economic conditions, other penalties may have
proved to be sufficient deterrence in developed nations but in developing countries death penalty
is the only effective deterrent.35 Nevertheless, in support of this argument no material from any
country of the world including the developing ones, could ever be produced.36
Arguing for abolishment of death penalty does not mean that penalty for murder is to be made
softer or lesser.37 It is just a question of change of mode of punishment without compromising on
its quantum, harshness or proportionality. As a matter of fact, the actual deterrence is the
certainty in the mind of the criminal that he will be arrested, convicted and punished promptly;
not that the punishment prescribed, however remote the possibility of its actual infliction may be,
is harsh. 38 Thus it has been concluded by United States of Americas National Academy of
Science that 10% increase in the probability of arrest and conviction would lower twice as many
crimes as would be lowered by a similar increase in the severity of punishment.39 Moreover,
when state kills a person to deter others, it uses a human being as a tool to achieve its
administrative goals. Such a calculated killing in cold blood, to serve states administrative

34

Supra, note 3, 8.

35

Supra, note 18, Para-116.

36

Ibid, Para-146.

37

Ibid, Para-123.

38

Ibid, Para-122.

39

Supra, note 3, 8.

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objectives, strips the offender of his humanity and lowers the dignity of a human being to the
scale of a mere tool.40
A valid question arises that if the empirical evidence is so clear that death penalty has no special
deterrence against crime, why is it so difficult to convince peoples and authorities to abolish it?
US Presidential election campaign for the year 2000 may shed some light on this phenomenon.
In the earlier part of the year 2000, US Attorney General Janet Reno stated, I have inquired for
most of my adult life about studies that might show that the death penalty is a deterrent, and I
have not seen any research that would substantiate that point. However, later that year, in
Presidential debates, George W. Bush stated that death penalty saves other peoples lives.41
Thus the political questions which need to be settled by public through vote are still settled by
popular slogans and presumptive beliefs, without least reference to the empirical evidence or
logical arguments.
Another argument in favour of retaining death penalty is retribution. Vengeance is one of the
basic human instincts, much like love, they say. Therefore, in order to satisfy the basic emotional
need of the victims family, punishment should be inflicted on the criminal to avenge the crime.
In case of murder, therefore, vengeance demands that murderer should be murdered to keep the
scores even. Powerful though it is, this argument confuses positive and negative human instincts.
In addition, it ignores thousands of years of development of human conscience, social values and
human civilization. Death penalty is a fossilized punishment of an ancient system of criminal
administration of justice based on vengeance. Civilized justice has arisen above this outmoded
and brutal notion of retribution by adopting symbolic yet proportional punishments42 which need
not repeat the crime for doing complete justice.43

40

Supra, note 18, Para-316.

John J. Donohue and Justin Wolfers, The Death Penalty: No Evidence for Deterrence, The
Berkeley
Electronic
Press,
Economists
voice,
2006,
1.
Available
at:
http://www.deathpenaltyinfo.org/DonohueDeter.pdf. Accessed on: 17th August, 2014.
41

42

Supra, note 3, 9.

43

Supra, note 18, Para-197.

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The point here is not to deny the righteous anger of the murder victims family or abhorrence of
society for this heinous crime, but to stress that capital punishment is not the only appropriate
way available to the society for expression of its moral outrage at this vile crime. We neither put
out the eyes of a criminal who has blinded another nor sentence the rapist to undergo rape. The
state does not need to engage in the cold and calculated killing of murderers in order to express
moral outrage at their conduct. A very long prison sentence is also a way of expressing outrage
and visiting retribution upon the criminal.44
Although retribution does not make a powerful argument for the biblical notion of an eye for an
eye, it does make a good case for a proportionally harsh sentence. But an argument for abolition
of death penalty is never based on getting soft on the murderer notion. It will be hard to argue
that a sentence of 100 years of rigorous imprisonment would in any way be less harsh than death
penalty, for instance.
Lastly comes the case of isolation. The oldest argument employed in support of death penalty by
the ancient tribal societies, other than Gods injunction, was hygiene. Offenders were considered
filth to be permanently removed from the society. In times when human intellect had not created
institution of prison, death penalty would have been the only way to attain this goal. However,
very long prison sentence can provide a viable alternate to achieve this end in the modern day
system of administration of justice. A need to permanently eliminate a murderer from society can
be achieved by putting him in prison, permanently.
After dealing with conceptual basis of the argument, and before indulging into the issues
involved in the Pakistani jurisprudence of capital punishment, next section will take the overview
of death penalty jurisprudence in European Union and United States of America.

V. EUROPEAN UNION AND UNITED STATES OF AMERICA:


In Pakistan, it is a general perception that Western world is itself convinced of the utility of
retaining death penalty but push third world countries, especially the Islamic countries and
44

Ibid, Para-129.

Page 15 of 25

specifically Pakistan to abolish it, in order to create anarchy therein. Therefore it would be useful
to see what exactly is the stance versus situation of the European Union and specially United
States of America to understand whether they are justified in lobbying for abolition of death
penalty or are they simply using it as a tool to put pressure on other countries for some covert
purposes?
The position of European Union is clear; it encourages states to the point of pushing for abolition
of death penalty because it has abolished it on the ground of being immoral, brutal and below
human dignity.45
The position of United States of America, however, is complicated. While USA campaigns for
abolition of death penalty, in majority of its constituting states46 death penalty is legal. In USA
authority to legalize death penalty or to abolish it lies with the legislatures of its federating states.
Only condition on them is that it should not violate any provision of federal Constitution. A
question came up before the federal Supreme Court of USA in 1972 as to whether the imposition
of capital punishment amounts to cruel and unusual punishment, which has specifically been
prohibited by the Constitution of USA. 47 Holding that death penalty was an awesome
punishment, US Supreme Court held it violative of the federal Constitution in the manner in
which it was being executed. 48 However, in the 1976 case 49 US Supreme Court, in the
background of a nationwide reaction to the Furman Case,50 over-ruled that decision and held that
if a state decides to legalize death penalty with some procedural checks, then the death penalty

45

Supra, note 3, 8.

46

37 States by the figures of 2008.

47

Furman Vs. Georgia, United States Supreme Court, 1972, 408 U.S. 238 (1972).

Furman Vs. Georgia, United States Supreme Court, 1972, 408 U.S. 238 (1972). Quoted in
Joel Feinberg & Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 1975,
4th ed, 1991, 764.
48

49

Gregg Vs. Georgia, United States Supreme Court (1976), 428 U.S. 153.

50

Supra, note 47.

Page 16 of 25

will not be violative of the US Constitution.51 While political support shown by the majority of
Americans in favour of retaining death penalty is often cited as the major factor behind US
Supreme Courts over-ruling Furman Case52 in its Gregg judgment of 1976,53 there is a strong
possibility of another very dangerous factor, and that is mis-representation of empirical evidence.
When in its 1972 Furman decision54 US Supreme Court held that the then existing state statutes
providing death penalty were violative of US Constitution, Isaac Ehrlich published his analysis
of national time series data claiming that his analysis proved that each death penalty saved 8
lives by creating a very special deterrent effect which no other punishment was able to produce.
Solicitor General pleading in US Supreme Court next year, for a decision in favour of death
penalty, in Greggs case55 did cite Ehrlichs analysis as a piece of scientific evidence proving
utility of death penalty. It is claimed that this must have a persuasive effect on the Supreme
Court. However, as the situation unfolded, Ehrlichs analysis was found incorrect and this led to
US National Academy of Sciences to issue its 1978 report clarifying that there was no valid
empirical evidence to support special deterrent effect of death penalty. 56 Although all the

Gregg Vs. Georgia, United States Supreme Court (1976), 428 U.S. 153. Quoted in Joel
Feinberg & Hyman Gross (ed), Philosophy of Law, Wadsworth Publishing Company, 4 th ed,
1991, 772.
51

The most marked indication of societys endorsement of the death penalty for murder is the
legislative response to Furman. The legislatures of at least 35 states have enacted new statutes
that provide for the death penalty for at least some crimes that result in the death of another
person. And the congress of the United States, in 1974, enacted a statute providing the death
penalty for aircraft piracy that results in deathBut all the post-Furman statutes make clear
that capital punishment itself has not been rejected by the elected representatives of the
people.
In the only statewide referendum occurring since Furman and brought to our attention, the
people of California adopted a Constitutional amendment that authorized capital punishment,
in effect negating a prior ruling by the Supreme Court of California..that the death penalty
violated the California Constitution.
52

Supra, note 47.

53

Supra, note 25, 3.

54

Supra, note 47.

55

Supra, note 49.

56

Supra, note 30, 792.

Page 17 of 25

empirical evidence collected by the US intelligentsia points towards the non-existence of any
special deterrent effect of death penalty and it is making a case for abolition at home and abroad,
the popular belief there still is that it does. So death penalty in US has two faces: popular and
intellectual. While the popular belief in US is still faithful to the divine utility of the biblical
notion of an eye for an eye, the rationally considered opinion is striving hard to claim its place in
the social horizon. In the back drop of popular political rhetoric, to say the least, this sounds
familiar in Pakistani situation as well.
The next section will now take a look at the law and the facts and figures in Pakistan in relation
to death penalty. The arguments that are advanced by the fundamentalist/conservative faction of
religious scholars in favour of death penalty will also be examined before taking up the task of
suggesting the possible ways to wriggle out of the situation without really getting into it.

VI. PAKISTAN & ISLAM:


In 2006, due to negligence of the registrars office, appellate courts orders of suspension of
death penalty of a convict were not transmitted to the jail authorities. The man was hanged from
the neck till death while the court was preparing to check the genuineness of his guilt.57 The
country in which this poor man was hanged mistakenly, is Pakistan; a country which ranks
among the countries of the world with highest death penalty awarding ratio.58
As of June, 2012, some 8,500 persons were on the death row in Pakistan.59 While at the time of
creation of Pakistan in 1947 only homicide and treason were punishable with death; today there
are more than two dozen crimes which carry death penalty, including sabotage of railway
system,60 blasphemy, stripping a woman of her clothes in public, etc.61 This is a country which,
57

Supra, note 3, 18.

58

Ibid, 16.

59

Supra, note 22, 27.

60

Supra, note 3, 17.

Page 18 of 25

except for few procedural and formal amendments, has not changed the basic structure of the
legal system that it inherited from its colonial masters.62 Pakistani society has been criticized
even otherwise for not showing any substantial progress since its independence some 7 decades
ago.63 A country adversely affected by botched police investigations and unfair trials 64 where
only 1.5 murder trial judges are available for 100,000 people,65 there always is an extremely high
probability of miscarriage of justice. Yet, in Pakistan, pleading for abolition of death penalty is
not only difficult, its actually dangerous. Pakistani pro-death penalty voices, which are often
aggressive and usually fundamentalist, invoke Islamic law, retribution and deterrence, in order of
priority, as the justification of penalty of death.

Pakistan Penal Code, 1860, S. 295-C: Whoever by words, either spoken or written, or by
visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly,
defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished
with death, or imprisonment for life, and shall also be liable to fine.
61

S. 354-A: Whoever assaults or uses criminal force to any woman and strips her of her clothes,
and in that condition, exposes her to the public view, shall be punished with death or with
imprisonment for life, and shall also be liable to fine.
Osama Siddique, Pakistans Experience with Formal Law, An Alien Justice, (Cambridge
University Press, 2014), 8.
62

If Jeremy Benthams preserved, albeit headless, body at University College Londonthe so


called Auto-iconwas to be miraculously resurrected and induced to visit a contemporary
Pakistani Court, he would be well within his rights to feel a certain sense of de ja vu. After all,
he famously prophesied acting as the dead legislative of British India, with James Mill acting
as its living executive. If his brilliant disciple Thomas Babington Macaulay were persuaded to
undertake a similar escapade, he would be somewhat taken aback. He would discover that his
great handiwork, the Indian Penal Code of 1860, is still en vogue, its original spirit intact
beneath the veneer of periodic piecemeal amendments. Both time travelers could be excused
for thinking that they had not travelled at all.
Ilhan Niaz, The Culture of Power and Governance of Pakistan 19472008, Oxford University
Press, 2010, ed. 2011, ix.
63

One went so far as to declare that if we were to take away the much derided colonial legacy
all that we would be left with are shrines, some palaces and a few cultural and aesthetic
refinements.
64

Supra, note 3, 6.

65

Supra, note 62, 20.

Page 19 of 25

While the rationality of historical trends indicates that a considerable portion of Islamic law was
developed very progressively by the Islamic scholars66 on utilitarian basis, very pragmatically,67
it was only in later centuries that religious fanaticism seeped in and the whole system based on
dynamism and innovation was frozen in the medieval space-time. Today there certainly is a dire
need to develop Islamic law on modern lines as is being done in some other Islamic countries,68
N.J. Coulson, A History of Islamic Law, Edinburgh University Press, 1964, 1st Indian Reprint,
Universal Law Publishing Co. Pvt Ltd, 1997, 50
66

A conservative attachment to tradition is the hallmark of the early Medinan jurists, while their
Kufan colleagues, living in a newly formed society which had no such roots in the past, were
animated by a spirit of free enquiry and speculation.
Noel J. Coulson, Conflicts and Tensions in Islamic Jurisprudence, The University of Chicago
Press, 1969, 4
The first 150 years of Islam were characterized by an almost untrammeled freedom of juristic
reasoning in the solution of problems not specifically regulated by divine revelation. Such rules
of law as the Quran and the sunna established were regarded simply as ad hoc modifications
of the existing customary law. This existing law remained the accepted standard of conduct
unless it was expressly superseded in some particular by the dictates of divine revelation. And
when new circumstances posed new problems, these were answered on the basis simply of
what seemed the most proper solution to the individual judge or jurist concerned. In the
expression of his personal opinion, known ray, the individual was free to take into account any
factors he deemed relevant. In short, in these early days law had a distinctly dual basis. It was
a compound of the two separate spheres of the divine ordinance and the human decision.
Joseph Schacht, An Introduction to Islamic Law, Oxford University Press, 1964, 1 st Indian
Reprint, Universal Law Publishing Co. Pvt. Ltd, 1997, 15
67

In the field of penal law, the first caliphs went beyond the sanctions enacted in the Koran by
punishing with flogging, for instance, the authors of satirical poems directed against rival
tribes, a form of poetic expression common in ancient Arabia.
Ran Hirschl, The New Constitution and the Judicialization of Pure Politics World Wide, 75
Fordham Law Review, 2006, 721-753, 737-738
68

Another telling example of judicial articulation of a nations core values is the central role
played by Egypts Supreme Constitutional Court in dealing with the core question of the status
of Sharia rulesarguably the most controversial and fundamental collective identity issue
troubling the Egyptian polity. Since the 1979 establishment of judicial review in Egypt and the
1980 constitutional amendment that made Islamic Sharia the principal source of legislation in
that country, the court has increasingly been called upon to determine the constitutionality of
legislative and administrative acts on the basis of their adherence to the principles of the
Sharia. The question before the Court in all of these cases has been which principles of the
Sharia possess determinative and absolute authority.
To address this question in a moderate way, the court developed a complex interpretative
matrix of religious directivesthe first of its kind by a nonreligious tribunal. It departed from
the ancient traditions of the fiqh (Islamic jurisprudence or the cumulative knowledge/science of
studying the Sharia) schools, and has instead developed a new framework for interpreting the

Page 20 of 25

but such trends, arguments and needs are conveniently denied by many in Pakistan, for the most
part on the strength of religious fundamentalism. Even the argument that bulk of Pakistani law
has been very progressively developed and the trend should be continued, for instance, where it
provides prison sentence for theft while in Islamic law punishment for theft is cutting of a
hand,69 falls on deaf ears. Their simple yet powerful rhetoric is that biblical notion of an eye for
an eye is part of Islamic law which, according to the Constitution,70 is the supreme law of the
land. Thus death penalty for a murderer is ordained by God and Gods injunction is based on the
utility of retribution and deterrence. Although it is not only difficult, but is actually dangerous in
Pakistan now-a-days to question the religious fanatics distorted argument of the divine wisdom,
yet there is a very strong and persuasive logic against this age old rhetoric of ideological
fundamentalism. In Islamic law, in case of murder, there is a possibility for the murderer of
paying monetary compensation in lieu of death penalty. This possibility available for a rich
murder convict of buying out his life and in fact all the punishment and going scot-free the
moment he pays the blood money, destroys the fanatics arguments of both retribution and
Sharia. Specifically, the court has developed a flexible, modernist approach to interpreting the
Sharia that distinguishes between unalterable and universally binding principles, and
malleable applications of those principles. Legislation that contravenes a strict, unalterable
principle is declared unconstitutional and void, while at the same time, ijtihad (contemplation
or external interpretation) is permitted in cases of textual lacunae, or where the pertinent rules
are vague or open-ended. Furthermore, the government has been given broad legislative
discretion in policy areas where the Sharia is found to provide unclear or multiple answers,
provided that that legislative outcome does not contravene the general spirit of the Sharia. This
interpretative approach has marked a true shift in the paradigm for legitimizing government
policies based upon a moderate, fairly liberal interpretation (ijtihad) of the Shaira.
Holy Quran, English translation by Marmaduke Pickthall (Pak Company, Lahore Pakistan,
2005), Chapter 5 (The Table Spread) Verse 38: As for the thief, both the male and female, cut
off their hands. It is the reward of their own deeds, an exemplary punishment from Allah. And
Allah is Mighty, Wise.
69

Pakistan Penal Code, 1860, Sec. 379: Whoever commits theft shall be punished with
imprisonment of either description for a term which may extend to three years, or with fine, or
with both.
Constitution of Islamic Republic of Pakistan, 1973, Article 2: Islam shall be the State
religion of Pakistan.
70

Article 203-D (3): If any law or provision of law is held by the Court to be repugnant to the
Injunctions of Islam,
(b) Such law or provision shall, to the extent to which it is held to be so repugnant, cease to
have effect on the day on which the decision of the Court takes effect.

Page 21 of 25

deterrence71 and should have forced them to seriously consider the possibility of replacing death
penalty with some other proportionate penalty. But the dead-end response from this quarter is
always based on the notion of religion being a phenomenon beyond and above reason.
The next section will consider the ideological as well as constitutional checks that are the actual
jurisprudential challenges to abolition of death penalty and will also suggest a possible solution
to overcome these checks by differentiating legal death from medical death and using legal
fiction to replace medical executions by legal executions.

VII. LEGAL FICTIONMEDICAL DEATH VS. LEGAL DEATH:


In Pakistan death sentence cannot be abolished easily even if it is accepted that it should be.
There are checks stronger than the ones which can be overcome by simple legislation;
Constitutional and ideological checks. The Preamble of the Constitution72 makes is abundantly
clear that the Sovereignty in Pakistans legal system belongs to God alone. This settles the
ideological formation providing the fundamental basis to the Constitutional structure of this first
modern ideological state of the world. Not only this ideological basis is expressed in its name
viz., Islamic Republic of Pakistan73 but also in the operative Articles of its Constitution. Thus
Article 2-A of the Constitution makes the concept and claims enshrined in the Preamble of the
Constitution as integral part of the Constitution.74 Article 2 sets it abundantly clear that Pakistan
is not a secular state but has a religion. Consequently, Constitution declares that Islam is the

71

Supra, note 3, 20.

Constitution of Islamic Republic of Pakistan, 1973, Preamble, Whereas sovereignty over the
entire Universe belongs to Almighty Allah alone..
72

Constitution of Islamic Republic of Pakistan, 1973, Article 1(1): Pakistan shall be a Federal
Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Paksitan.
73

Constitution of Islamic Republic of Pakistan, 1973, Article 2-A: The principles and
provisions set out in the Objectives Resolution reproduced in the Annex are hereby made
substantive part of the Constitution and shall have effect accordingly. The Preamble of the
Constitution is derived from this Objectives Resolution.
74

Page 22 of 25

State religion of Pakistan75 while it also defines who is a Muslim and who is a non-Muslim.76
The matter does not end here. Seven years after enactment of the Constitution, it was amended
and a precise and very elaborate mechanism was added in the Constitution, by creating a special
limb of higher judiciary with specific and exclusive jurisdiction to declare all the laws which are
in conflict with Islamic laws as null and void and non-existent. 77 Since death penalty is an
integral part of the Islamic law, its abolition by simple legislation will violate the express
provisions of the Constitution. So in Pakistan death penalty cannot be abolished simply by
amending statutes, it requires Constitutional amendment. However, this problem cannot be
solved by amendment of Constitution even as such an amendment will violate the basic
structure78 and the very ideological and foundational basis of the Constitution. Supreme Court of
Pakistan has held that the Constitution of Pakistan is more than a random, or even serial and
somewhat systematic compilation of articles; rather it is not only a structured document but a
document based on a well defined structure. One integral and a significant part, a salient feature,
of this structurethe basis structure of the Constitutioncomprises of different articles spread
all over the Constitution imparting Islamic theme therein. And this salient feature cannot be
amended by the assembly even if it follows the procedure provided in the Constitution itself for
its amendment. The Supreme Court has held this and this is good law in Pakistan. Now this is a
problem!

Constitution of Islamic Republic of Pakistan, 1973, Article 2: Islam shall be the State
religion of Pakistan.
75

76

Constitution of Islamic Republic of Pakistan, 1973, Article 260(3).

Constitution of Islamic Republic of Pakistan, 1973, Article 203D(3): If any law or provision
of law is held by the Court to be repugnant to the Injunctions of Islam,
77

(b) Such law or provision shall, to the extent to which it is held to be so repugnant, cease to
have effect on the day on which the decision of the Court takes effect.
Mahmood Khan Achakzai Vs. Federation of Pakistan, Supreme Court of Pakistan, PLD 1997
SC 426, 459
78

freedom bestowed upon the Parliament in clause (6) of Article 239 after amendment does
not include power to amend those provisions of the Constitution by which would be altered
salient features of the Constitution, namely federalism, Parliamentary Form of Government
blended with Islamic provisions. As long as these salient features reflected in the Objectives
Resolution are retained and not altered in substance, amendments can be made as per
procedure prescribed in Article 239 of the Constitution.

Page 23 of 25

Such problems arise seldom from the internal conflict in a legal system but usually when there is
a conflict between a dogmatized legal system and the development of dynamic collective
conscience beyond that dogmatized system. It is the problems like these that have been arising in
different legal systems of the world, challenging the jurists in history and shook them out of their
deep slumbers of following the traditions and forced them to come up with new and innovative
responses. Such had always been the out of the box responses aimed at meeting the social
requirements which the legal system of the time had failed to come up to. One such innovative
response had been tackling of such complex and insurmountable problem by creating legal
fictions.
A legal fiction is simply a false statement recognized as having utility. 79 Thus it were somewhat
similar situations which led the jurists to create legal fictions like a distinct legal entity of a
corporation where a non-entity gets entity by sheer force of law. Similar is the English concept
of adoption where legal fiction replaces adopted parents as natural parents. Law takes control of
the situation where it decides to create legal fiction for the betterment of the society and designs
the scenario, not according to reality, but in accordance with socio-legal requirements. Thus, law
creates an artificial distinction between natural person and legal person and declares to have
granted the status of legal person to a corporation by operation of legal fiction. Same can be the
case with the concept of death.
One constructive way of using legal fiction can be to distinguish between medical death and
legal death and replacing all death penalties with legal deaths instead of medical deaths. This
should not be too fictitious in the face of modern thinking where there is a dire need to abolish
old concepts of death and come up with new ones in the backdrop of modern scientific and
technological advances and controversies. 80 A recent study in the adequacy of traditional
definitions of medical death has concluded that in view of development in medical science a
statutory definition is essentially required to replace the traditional definition of medical death,

79

Nancy J. Knauer, Legal Fictions and Juristic Truth, St. Thomas Law Review, Vol. 23, 2010, 4.

Stuart J. Youngner, Robert M. Arnold & Renie Schaprio (ed), The Definition of Death,
Contemporary Controversies, The John Hopkins University Press, 1999, xiii
80

Page 24 of 25

which is no more adequate amidst modern views of life and death.81 A very convenient way of
grasping the concept is by visualizing coma patients. A person in coma, although is alive
medically, is practically dead. Similarly, a person locked up in a cage for the rest of his life can
be seen as essentially, or to look at it more precisely, socially dead! This will mean that law will
consider a certain kind of limited rights to life as a persons legal death, which can be awarded
and executed without killing that person biologically. Thus, if life of a person, in jail, is termed
no-life legally, an imprisonment sentence till his natural biological death becomes his legal
death. So the day a person is put in prison never to be taken out alive, becomes the day of his
legal death. Such creation of a legal fiction of legal death to replace medical death for the
purposes of punishment will solve both angles of the challenge. As Constitutional frame work
does not allow abolition of death penalty, it will not be abolished and deserving convicts will
continue to be awarded the penalty of death; penalty of legal death to be precise. And since no
human life will be terminated by the state as a punishment, there neither will be any degradation
of collective values of the society nor will there be any possible innocent executions. If otherwise
false statements can be legally taken as true in order to safeguard commercial and social
relations, why cant same thing be done in order to save precious human lives?

VIII. CONCLUSION:
From the brutal ancient concepts of crucifying people in order to give them exemplary
punishments, human intellect grew up and matured. The basis of social relations developed from
narrowly perceived personal self-interests to collective good of the greatest possible number of
people. The basis of law out grown the divine wisdom and entered the era of utilitarian laws.
Punishments also left the times of emotional satisfaction and personal vengeance and entered the
period of pragmatism. Man started asking if it is alright for a non-victim party like state, to take
revenge as an agent? And even if it is alright, is it justifiable to kill a human being on that

Presidents Commission for the Study of Ethical Problems in Medicine and Biomedical and
Behavioral Research, Defining Death, A Report on the Medical, Legal and Ethical Issues in the
Determination of Death, 1981. Available at:
https://repository.library.georgetown.edu/bitstream/handle/10822/559345/defining_death.p
df?sequence=1. Accessed on: 23rd August, 2014.
81

Page 25 of 25

account? Then the question of scaring potential law breakers by killing people arose. People
started thinking if it is just to kill one person to scare another? And further questions were asked;
Does killing of a murderer by the state has some special deterrent effect as compared to alternate
but proportionally harsh punishment? And it was also asked if the only way to keep a trouble
maker out of a society is to murder him under the authority of law?
Philosophical deliberations were made on these issues for centuries and in the last several
decades, scientific investigations were also conducted to see the empirical evidence supporting
these questioned concepts and purposes. The answers that came are over whelming and against
death penalty. The question then turned to chalking out some strategy to get the society out of the
clutches of its fossilized legal and moral concepts, which it failed to do in its own course of
intellectual maturity, and get the death penalty abolished in law. This proved to be a tricky task.
While in modern western secular states it requires only a public mobilization and convincing
majority of voters, in religious and ideological states like Pakistan it proved to be a task much
more difficult. Here, even if the dominant public opinion is developed in favour of abolition of
death penalty, it cannot be expressed and executed legally without hitting the very foundational
and ideological structure of the state. Thus a technical solution is prescribed. The solution is to
use the concept of legal fiction to make a distinction between the concepts of medical and legal
deaths. This will serve two purposes: first, it will provide a very harsh punishment to a murderer
which will not only satisfy the vengeance needs of the victims family but will also provide
enough deterrence to the potential murderers, and second, it will save the brutality of state
calculatedly killing a human being under the authority of law. Not only will this stop the official
murders at the hands of state, it will be done without violating the ideological basis of the
ideological states. Among many other purposes that it will serve, will be a possibility of undoing
a wrong committed to an innocent convict, as no realistic system of administration of justice to
date ensures error free convictions.