Since the end of the holy month of Ramazan, Pakistan has surpassed all countries with the death penalty by carrying out over 30 executions. These executions have made Pakistan the object of condemnation from the UN, the EU and other international actors. However, despite the many wrongful and unjust executions that have been exposed by rights groups since December, the state soldiers on without mercy. Amongst the executions that have attracted attention in the last few weeks, two of the most notable have been those that did not take place.

Abdul Basit and Khizar Hayat were both among the first prisoners scheduled to hang shortly after Eid. Basit, a former college administrator who was sentenced to death in 2009, suffers from paraplegia – the result of a viral illness contracted in prison which went undiagnosed and untreated for over a month, sending him into a coma, from which he has never been able to fully recover. Khizar, who has been on death row since 2003, suffers from schizophrenia an illness for which he first started to receive treatment in 2008. In the seven years since he has been consistently treated for psychosis and delusional disorders. Khizar’s family and lawyers report that he has no idea what has been happening to him over the past few weeks. Far from comprehending how close he has come to death, he believes that his imprisonment is the result of a clerical error, and that he will shortly be released.

Basit and Khizar both received stays of execution from the Courts shortly before they were scheduled to hang after lawyers argued that given the particular circumstances of their cases, both men’s executions would breach the ban on violation of human dignity in our Constitution. Our judiciary, to its credit, recognised the merit of these arguments and litigation in both cases remains ongoing. But a question remains: why was it left to the courts and the legal profession to step in at the very last minute to prevent such executions from going ahead, when the Constitution already provides a mechanism for commuting sentences under such circumstances?

Article 45 of the Constitution gives our President the power to stay any execution and suspend or commute any criminal sentence, including a sentence of death. While this discretion is unfettered, there are nonetheless various statutory provisions which provide guidance on the kinds of cases in which this provision is designed to be used. Mercy petitions, the Pakistan Prison Rules tell us, can be based on grounds of mental or physical ill-health. In both Khizar and Basit’s cases, requests for mercy were made, yet despite the compelling grounds for mercy in both cases, these petitions have so far been dismissed, or what is worse, ignored.

Recently on “Bay Laag”, Ashtar Ausaf Ali, Minister of State for Law and Special Advisor to the Prime Minister argued that although the Federal Government was aware of concerns in both these cases, the matter was one for the provincial government to resolve. Yet just weeks before this, when Khizar’s case had previously been listed for execution, one of his lawyers had taken a petition for mercy to the Punjab Home Department, and had been told that there was nothing the provincial government could do about such execution cases. According to Home Department officials, only the federal government could take action here, and it was out of the provincial government’s hands.

Clearly someone, somewhere, has missed something. If both the federal and the provincial governments are seeking to wash their hands of the responsibility for determining whether mercy should be granted – of whether someone should live or die – then we are clearly straying into dangerous waters.
The right of a condemned man to appeal for mercy is enshrined in both the principles of Islamic jurisprudence, and in international law, as well as in our own Constitution. Nevertheless, when it comes to sifting through the mercy petitions of the many hundreds of prisoners who could now be in line for execution, it appears that every arm of government has washed its hands of the duty to fairly consider each and every prisoner’s petition asking that their life be spared.

Newspapers have reported that there are now over sixty prisoners in Punjab who have had their petitions for mercy dismissed and who now face the gallows. How many of them had good reasons to ask for their lives to be spared? And how many of these reasons were completely ignored?