Dissection
of the idea of “Public Executions” and “Dignity”
Having
seen the continuous surge in the shocking, ghastly, and dreadful cases of child
abuse in Pakistan, the Members of the National Assembly left with no choice
except to resolve and vote for the “Public Execution” of the culprits. The
resolution passed with a majority vote. However, some parts of society’s
intelligentsia expressed their resentment; considering it a violation of Right
to Dignity. Does the concept of public execution really violate the right to
dignity?
Erin Daly
in his book “Dignity Rights: Courts, Constitution, and the worth human Person” expressly
talked about the concept of dignity. Having a long history, the concept of
dignity can be divided into two parts: one, being a constitutional value;
second, being not a constitutional value or right. “As to constitutional value,
human dignity is the value of a person within the society”. Meaning thereby, it
varies from the constitution to the constitution and as per to norms and mores
of a society.
To
consider each society’s norms and mores as one: arguing that the idea of public
execution is against the norms and concepts of the United Nations and its laws,
is nothing but an attempt to undermine each society’s dignity. Yet it is a
separate debate. But the crux of above terse three lines is that: dignity
varies from society to society and morality. One's morality may often become an
offense for the other. Thus, it is an absurdity to consider the whole world’s
morality and mores as one. So as dignity.
As Aharon
Barak said in the forwarded portion of the above-mentioned book: “the concept
of human dignity will be determined in accordance with the perspectives of the
enlightened public in Israel, in accordance with the purpose of Basic Law…” As
a natural outcome: here the dignity must be interpreted as per to our mores and
norms.
“At the
center of human dignity is the sanctity and liberty of life. At its foundation
are the autonomy of the individual will, the freedom of choice, and the freedom
of man to act as a free creature”, said Aharon Barak in another constitutional
case in the Supreme Court of Israel. So, the dignity revolves around the
concept of freedom; but the freedom is not unbridled and it is and was always
limited freedom. Unless one does not interfere in the freedom of the other, it
is unlimited; it is limited as soon as one transgresses into the others’
freedom. This is what the great proponent of liberty “Jhon Stuart Mill” taught
us.
Under
Article 14 of the constitution of the Islamic Republic of Pakistan, 1973 the
concept of dignity is preserved as: “the dignity of man… shall be inviolable”. The
Supreme Court of Pakistan in 1994 in a suo-motu case on the question of public
hangings has held that “the dignity of every man is not subject to law but is
an unqualified guarantee… inviolable and execution in public, even the worst
criminal appears to violate the dignity of man”. But what is the purpose of
punishment; if it is really to save the dignity of the transgressor, the one
who dreadfully violates the dignity of a child; then what is the value of the
dignity of the child? Could he be satisfied, if the sinner is punished with all
his due respect?
Needless to reiterate here that, liberty is
not unlimited: and dignity is entangled with liberty; if one violates the
liberty and dignity of the other, he should be deprived of the dignity of his
own. Dignity is inviolable: yes, but not when one transgresses and depraves the
one from dignity. It is itself against the dignity to think: let the sinner be
kept his dignity. As one the purpose of the punishment is retribution: the
satisfaction of the victim, not of the society.
Amongst
five paramount purposes of punishment: deterrence, incapacitation,
rehabilitation, retribution, and restitution, the retribution is the one deals
with the victim's satisfaction. True, that crime is considered against society,
but it is the victim who is the most suffered one. Rest just can empathize with
the victim’s sufferings. So, it must be his satisfaction and his retribution.
Moreover, the utilitarian concept of punishment is the deterrence: they
rationale it as an exemplary act of the state so that the habitual offenders
may deter and refrain from their sins. Jeremy Bentham is the chief proponent of
this theory; he argued that sentences should be calculated to be sufficient to
deter others from committing the offence.
Therefore,
what are we achieving by not publically executing the transgressors: especially
the hardened, desperate and dangerous criminals; one who violates the dignity
of a child? The prime considerations should be the dignity of the child, why should
it be of the offender? Moreover, if one argues that—as it is being argued in
newspapers and articles—the deterrence and retribution punishments do not serve
the purpose: it does not diminish the crime rate; to those, the
answering-question is: whether the incarceration serves your purpose: have
incarceration—count it even from a century—brought forth the results? Do the
habitual offenders have been treated? Could you consider, that you can do it? How
much time do you need more? Thus, the incapacitation, rehabilitation, and
restitution theories are serving the purpose anymore. It is time to look at
retribution and deterrence theories.
Last but
not least, as per our norms and mores, Islam too has had the concept of
retribution for the punishment. As in retribution, the same injury is caused to
the offender as a punishment: what if the injury is caused to the dignity?
Then, should it not be caused to the dignity of the offender? For the
clarification, needlessly, it is pertinent to describe here that injury is to
the body, mind, and reputation in criminal law. Can we extract the “Dignity”
from the term “Reputation”? Certainly, we cannot. As the idea is: "Life
for life, eye for an eye, nose for nose, ear for ear, tooth for tooth, and wounds
equal for equal" (Quran5:45); so, here it should be as well: “Dignity for
Dignity”.
Hafiz
Muhammad Azeem.
The writer is an advocate of the high court
and writes on various topics. He can be reached at Khokhar.azeem@yahoo.com. His articles can be accessed on
hmazeem.blospot.com. He holds an LL.M. from the Punjab University and teaches
law.
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