Hamdard Islamicus January-March 2012 Vol. XXXV, No. 1 Editor-in-Chief: Mrs. Sadia Rashid (Allah is the light of the heavens and the earth — Al-Qur’an, XXIV:35) Quarterly Journal of Studies and Research in Islam xamparopaxistan Published by Hamdard Foundation PakistanHAMDARD ISLAMICUS Quarterly Journal of Studies and Research in Islam Vol. XXXV January-March 2012 No. 1 Editor-in-CI Mrs, Sadia Rashid Editor: Dr. Ansar Zahid Khan Associate Editor: JAH. Rizvi Published by Hamdard Foundation Pakistan, Nazimabad, Karachi-74600, Pakistan Telephones: 36440184, 36616001-4, 36620945-49 Telefax: (92-21) 36611755 Mail islamicus@hamdard.edu.pk hfp@hamdardfoundation.org Websites: www.hamdardfoundation.org [Hamdard Foundation Pakistan] www.hamdardlabswagf.org [Hamdard Laboratories (Wagf)] www.hakimsaid.info [Idara-e-Said] Articles from this Journal are indexed in Religion Index One Acquisitions Specialist, American Theological Library Association, 300 S. Wacker Dr Ste 2100, Chicago, TL 60606, USA. Articles and photographs in this issue may not be reproduced unless previous permission has been obtained from the Editor, Price Inland — Foreign Pak. Rs. USS Annual 600. 10. Single Copy 150/- 30/- (inclusive of airmail charges) Printed by MAS Printers, Nazimabad, Karachi-74600, Pakistan. Editorial A Hajj Pilgrim’s Travelogue and Manual ~ The Sea Traveller 1676- 167 _—-Iftikhar A. Khan Abolition of Death Penalty with Special Reference to Pakistan — Part IT Shagufta Omar ‘The Development in Codification of the Islamic Law of Inheritance in Malaysia Jasni Bin Sulong Affairs of Mutual Consultation (Gleanings from the Pakistani Press) Book Reviews Index ~ Hamdard Islamicus, Vol. XXXIV, 2011 15 49 97Hamdard Islamicus 15 Vol. XXXV, No. 1 ABOLITION OF DEATH PENALTY WITH SPECIAL REFERENCE TO PAKISTAN PART L* SHAGUFTA OMAR Incharge, Dawah Centre for Women, Dawah Academy, International Islamic University Islamabad, Islamabad, Pakistan e-mail: shaguftaomar@yahoo.com ‘TION 1 Abolition of Death Penalty and International Law/Treaties Various International Laws Applicable _ Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR) provided the grounds for restricting the application of Death Penalty, subsequently leading to other international conventions prohibiting the Death Penalty, most notably the Second Optional Protocol to ICCPR, and the Sixth and Thirteen Protocols to the European Convention on Human Rights. However, such conventions only bind the state which has chosen to be a party to it. Other conventions such as CRC (Child Rights Convention), CAT (Convention Against Torture) are also referred to with respect to certain related provisions. INTERNATIONAL Customary Law Customary International law permits the Death Penalty as it has ‘Bor Part I see No. 3 issue of the Hamdard Islamicus (Vol. XXXIV, No. 3 2011).Hamdard Islamicus 16 Vol. XXXV, No. 1 been used by almost all states since time immemorial considering its opinio juris nature. UN Cuarter 1945 United Nations Charter 1945 marked the start of Human Rights Regime and came forward as the founding document stating the protection and promotion of human dignity, freedoms and rights. It referred to realization of human rights and its provisions, in addition to containing the framework for the organization as a whole. All subsequent conventions on various aspects of Human Rights were based on the premise of UN Charter’s and considered the obligations of states, in particular to its Article 55, in promoting universal respect for, and observance of, human rights and fundamental freedoms.’ UDHR 1948 Universal Declaration of Human Rights, (UDHR), 1948 has been adopted by the Human Rights movement as a charter. UDHR proclaims the right of every individual from deprivation of life and provides that no one shall be subjected to cruel or degrading punishment in its Articles 3 and 5.? These articles are referred in all subsequent documents as well as in all arguments against Death Penalty. INTERNATIONAL CONVENTION ON Civit. ano Pouiticat Ricits (ICCPR) 1966 (ARTICLE 6) This covenant details the basic civil and political rights of individuals and states. Stating the inherent right to life its Article 6 requires state parties to abolish or mitigate Death Penalty as capital punishment only in serious crimes, with the exception of crimes of genocide, through final judgment rendered by a competent court with a right to seek pardon or commutation of the sentence. It further advocated that the amnesty, pardon or commutation of the sentence of death should be granted in all cases, It also prohibits Death Penalty to minors (under 18 years of age) and pregnant women. It is also stated that nothing in this article shall be invoked to delay or prevent the abolition of capital punishment by any state party to the present Covenant.’ The convention was adopted on 16th December 1966, opened forHamdard Islamicus 17 Vol. XXXV, No. 1 signature at New York on 19th December 1966, and registered on 23rd March 1976, No. 14668. There are 72 signatories and 165 state parties to the Covenant.* Pakistan signed ICCPR on L7th April 2008 (subject to ratification), with the following reservation: “The Government of the Islamic Republic of Pakistan reserves its right to attach appropriate reservations, make declarations and state its understanding in respect of various provisions of the Covenant at the time of ratification.”* Seconp Optionat Prorocot to ICCPR 1989 Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the Death Penalty 1989 represented a milestone for abolitionists of Death Penalty. It was adopted and proclaimed by General Assembly resolution 44/128 of 15th December 1989, and is open for signature at the United Nations Headquarters in New York by all States having signed the ICCPR. It came into force on 11th July 1991 in consequent with its Article 8(1), was registered on 11th July, No. 14668, three months after the 10th instrument of ratification or accession. There are 72 state parties and 35 signatories to the protocol.° The preamble of the Protocol states to undertake international commitment to abolish the Death Penalty, claiming that abolition of the Death Penalty will contribute to the enhancement of human dignity and progressive development of human rights, referring to the Article 3 of the UDRR, and Article 6 of the ICCPR. As the present protocol aimed at complete abolition of Death Penalty, its Article 1 forbids any State Party to the present Protocol for any execution and requires each State Party to take all necessary measures to abolish the Death Penalty within its jurisdiction. Article 2 restricts the right of reservation for the application of the Death Penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.” Convention AGaINst Torture (CAT) 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1989 was adopted by GeneralHamdard _Islamicus 18 Vol. XXXV, No. | Assembly (GA) on 10th December 1984, and entered into force on 26 June 1987, in accordance with Article 27(1). There are 76 signatories and 146 state parties to it. This document is referred in entirety to its spirit of restricting torture, inhuman or degrading treatment and punishment CONVENTION ON THE RIGHTS OF CHtLD (CRC) 1989 Convention on the Rights of the Child (CRC) 1989 was adopted and opened for signature and ratification by GA on 20th November 1989, at the Forty-fourth session of the General / sembly of the United Nations. It entered into force on 2nd September 1990, in accordance with Article 49(1). There are 193 state parties to the convention and 140 signatories.’ CRC forbids capital punishment for Juveniles, Death Penalty and life imprisonment. Article 37(a) of the Convention maintains that “neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age”. European Convention ON HUMAN RiGuts (CONVENTION FOR THE Prorection OF HUMAN RuGuts AND FUNDAMENTAL FREEDOMS) This convention is an international treaty to protect human rights and fundamental freedoms in Europe. It was drafied in 1950 by the then newly formed Council of Europe."' the convention entered into force on 3rd September 1953. All the member states of the Council of Europe are party to the Convention and new members are expected to ratify the convention at the earliest opportunity. Convention has several protocols The Convention established the European Court of Human Rights where any state or person of a state party can take a case to the Court. The s binding. The establishment of a Court to protect individuals from human tes concerned are obliged to execute the Judgments of the court as rights violations is an innovative feature for an international convention on human rights, as it gives the individual an active role on the international arena (traditionally, only states are considered actors in international law). State parties can also take cases against other state parties to the Court, although this power is rarely used.'* Six and thirteen Optional Protocols fs ste te restrict and aholish the Desth Penalty(Me Hamdard Islamicus 19 Vol. XXXV, No. | OprrionaL Prorocon 6 to THE Eurorkan CONVENTION ON HuMAN RiGHts AND FUNDAMENTAL FREEDOMS CONCERNING THE. ABOLirion OF THE DeaTH Penavty (Restriction or Dearn PENaury) This protocol was adopted on 28th April 1983 at Strasbourg, and entered into force on Ist March 1985 on fifth ratification.'* The 6th protocol requires parties to restrict the application of the Death Penalty to times of war or “imminent threat of war”. The protocol has 46 states with ratification or accession, except one state. In fact every Council of Europe member state has signed and ratified Protocol 6, except Russia who has signed it but not yet ratified.'* Article 1 of the Protocol states for abolition of the Death Penalty, Article 2 requires a state to make provision in its law for the Death Penalty in respect of acts committed in time of war or of imminent threat of war; and requires such penalty to be applied only in accordance with law provisions, duly communicated to the Secretary General of the Council of Europe. Articles 3 and 4 prohibit any derogation and reservations to the provisions of this protocol respectively. ' PROTOCOL 13 OF THE EUROPEAN CONVENTION ON Huan RIGHTS AND FUNDAMENTAL FREEDOMS, CONCERNING THE ABOLITION OF THE DEATH PENALTY IN ALL CIRCUMSTANCES 2002 (ComPLere ABOLITION oF Death PENALTY) Protocol 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the Death Penalty in all circumstances provides for the total abolition of the Death Penalty as a step further to the 6th protocol which restricted Death Penalty to acts committed in time of war or of imminent threat of war. The protocol was adopted on 3rd May 2002 at Vilnius and came into force on Ist July 2003 after 10 ratifications.” Article | of the protocol states that the Death Penalty shall be abolished and no one shall be condemned to such a penalty or executed, whereby Articles 2 and 3 prohibited any derogations or reservations respectively."* UN Generat Assempiy/Economic axp Soctat Councit/HuMAN RIGHTS Commission’s RESOLUTIONS WITH REFERENCE TO DeatH PenalHamdard Islamicus 20 Vol. XXXV, No. | in 1971 affirmed that “in order fully to guarantee the right to life, provided for in Article 3 of the Universal Declaration of Human Rights, the main objective to be pursued is that of progressively restricting the number of offences for which capital punishment may be imposed, with a view to the desirability of abolishing this punishment in all countries (resolution 2857 (XXVI) of 20 December 1971). b) The goal of progre jive restriction of capital offences was reiterated by the General Assembly in 1977 (resolution 32/61 of 8th December 1977), which says “that the main objective to be pursued in the field of capital punishment is that of progressively restricting the number of offences for which the Death Penalty may be imposed with a view to the desirability of abolishing this punishment”.* c) In resolution 1989/64, adopted on 24 May 1989, the UN Economic and Social Council urged UN member states “to publish, for each category of offence for which the Death Penalty is authorized, and if possible on an annual basis, information about the use of the Death Penalty, including the number of persons sentenced to death, the number of executions actually carried out, the number of persons under sentence of death, the number of death sentences reversed or commuted on appeal and the number of instances in which clemency has been granted, and to include information on the extent to which the safeguards referred to above are incorporated in the national law?2! d) In resolution 2005/59, adopted on 20 April 2005, the UN Commission on Human Rights led upon all states that still maintain the Death Penalty “to make available to the public information with regard to the imposition of the Death Penalty and to any scheduled execution”. e) The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has stated: “Transparency is essential wherever the Death Penalty is applied as to those executed violates human rights standards. Full and accurate reporting of all executions should be published, and a consolidated version prepared at least on an annual basis f) General Assembly on 18th Dec. 2007 adopted a resolution for a moratorium on executions to be established in all States that still maintain the Death Penalty. The resolution calling for “a moratorium on the Death Penalty”, was p: sed by a vote of 104 in favour to 54 against, with 29 abstentions. It called on all States that still allowed capital punishmentHamdard _Islamicus 21 Vol. XXXV, No. I to “progressively restrict the use of the Death Penalty and reduce the number of offences for which it may be imposed” were also called on to provide the Secretary-General with information on their use of capital punishment and to respect international standards that safeguard the rights of condemned inmates.”* A number of delegations, though, argued that the Death Penalty Those countries was not illegal under international human rights legislation and that it was the sovereign right of each and every State to determine its own judicial system. Vocal amongst the delegations opposing the resolutions were representatives of Barbados and Singapore. Singapore’s representative said, “It was unfortunate that the resolution’s co ponsors had handled the issue not as a debate, but as a lecture. There had never been any attempt to reach consensus. They had ignored the diversity of States and their judicial systems. In addition, they had resorted to pressure tactics and demarches”. While the co-sponsors would celebrate their victory, it had come at the expense of acrimony in the Third Committee. Each State had a sovereign right to choose its own political, criminal and judicial systems, he said, stressing that Singapore would continue to follow its own course in the matter.?* g) UN Commission on Human Rights Resolutions 2001/68 and 2002/77 “urg[ing] all States that still maintain the Death Penalty: (a) To comply fully with their obligations under the Covenant and the Convention on the Rights of the Child, notably not to impose the Death Penalty for any but the most serious crimes [and] (c) To ensure that the notion of “most serious crimes” does not go beyond intentional crimes with lethal or extremely grave consequences and that the Death Penalty is not imposed for non-violent acts such as financial crimes, nonviolent religious practice or expression of conscience and sexual relations between consenting adults”. The last resolution on the question of the Death Penalty adopted by the UN Commission on Human Rights urges all states that still maintain the Death Penalty to ensure that it is not imposed as a mandatory sentence.!”” h) In resolution 2005/59, adopted on 20 April 2005, the UN Commission on Human Rights called upon all states that still maintain the Death Penalty “to make available to the public information with regard to the imposition of the Death Penalty and to any scheduled execution”. i) The UN Special Rapporteur on extrajudicial, summary orHamdard Islamicus 22 Vol. XXXV, No. 1 arbitrary executions has stated: “Transparency is essential wherever the Death Penalty is applied. Secrecy as to those executed violates human rights standards. Full and accurate reporting of all executions should be published, and a consolidated version prepared on at least an annual basis”.2* The provisions of international law on capital punishment are described above, which indicates that international law has incrementally restricted the scope and implementation of Death Penalty, and aims at its complete abolition in circumstances other than war. SE ION it Death Penalty and its Aboli nin Pakistan Death Penalty in Domestic Legistation In Pakistan’s legislative system Death Penalty is enforced in about 27 crimes of various nature embodied in the Constitution of Pakistan, High Treason Act, Pakistan Criminal Code (Pakistan Penal Code, PPC Army Act of Pakistan, Offence of Zind (Enforcement of Hudiid), Pakistan Arms Ordinance, Railways (Amendment) Act, Control of Narcotics Substances Act, Anti Terrorism Act and prevention of Electronic Crimes Ordinance. Including Islamic juditd penalties amongst other crimes, Death Penalty is the sole punishment as well as replaceable with other punishments. Capital Punishment offences under the above mentioned statutes include intentional murder (gatl-i ‘amax),*° decoity with murder," mutiny and insubordination,” abetting or waging war against the state,” abetment of mutiny, high reason," offences related to enemy,” disclosure of parole or watchword.” zind (adultery) liable to had, ind i'l jabr (rape), zind bil jabr in the form of gang rape blasphem harabah,® kidnapping or abduction with the intention of unnatural lust." abduction of a minor under 14 years old,‘ kidnapping or abduction with the intention of extorting property, valuable security, etc.,° procuration and importation for prostitution, assault on modesty of woman and stripping of her clothes,” drug smuggling," giving or fabricating false evidence with intent to procure conviction of capital offence,” hijacking and harbouring hijackers,” importing or exporting of dangerous drugs into aod From Dalictan *! arms trading * and sabotage of the railway system.”wv Hamdard Islamicus Vol. XXXV, No. | Commutation Provisions in the Statutory Laws of Pakistan THe CONSTITUTION OF PakisTAN Judicial powers of the President of Pakistan: The President has the power to grant pardons, reprieves, and respites. He has also powers to remit, suspend or commute any sentence passed by any court, tribunal or other authority. The purpose of these powers is to mitigate the harshness of a judicial sentence and to rectify any injustice done to a person by a court due to the strictness of the law.* Pakistan Prenat Cove Chapter III of Pakistan Penal Code (PPC) deals with Punishments This section provides details of punishments and their categories, minimum and niaximum punishments for various offences, their commutation as well as President of Pakistan’s prerogative. Section 53 of PPC deals with the punishments for various offences, liable for ten kinds of punishments namely: Qisds; Diyat; Arsh; Daman; Ta'zir; Death; Imprisonment for life; Imprisonment which is of two descriptions, namely, (i) Rigorous ie with hard labour; (ii) simple; Forfeiture of property; and Fine Commutation oF DeatH SENTED Section 54 of PPC deals with the commutation of death sentence; whereas Section 55 deals with commutation of sentence of imprisonment for life. In every case in which sentence of death has been passed, the Federal Government or the Provincial government of the province within which the offender has been sentenced may, without the consent of the offender, commute the punishment for any other punishment provided by this code.** [Provided that, in case in which a sentence of death has been passed. against an offender committed for an offence of gat?, such sentence shall not be commuted without the consent of the heirs of the victim].°° PRESIDENTIAL PREROGATIVES Section 55 A, describes President’s prerogative for commutation orHamdard Islamicus 24 Vol. XXXV. No. | pardoning of sentence. Nothing in Sections 54 or 55 shall derogate from the right of the President to grant pardons, reprieves, respites or remissions of punishment.” [Provided that such rights shall not, without the consent of the victim or, as the case may be, of the heirs of the victims, be exercised for any sentence awarded under chapter XVIJ.* Pressures for Abolition of Death Penalty in Pakistan EXTERNAL As mentioned earlier, in line with the international human rights documents for abolition of Death Penalty, some of the International Organizations are leading aggressive campaigns for abolition of Death Penalty, Pakistan is also facing this pressure, Few citations in this regard have been presented herewith. Aw Oren Lerrer to tHe EU 1x View or rue EU/Paststan Summit: M.uor Homan Ricurs Concerns sy tie Presient or FIDH (Ivrervarionat. Feperarion For Human Ricuts) Souhayr Belhassen, the President of FIDH (International Federation for Human Rights) had written an open letter to EU on June 16, 2009, in view of the Europe/Pakistan summit which was going to be held on June 17 (2009), urging EU to include in the agenda, the issues of fight against terrorism as well as Death Penalty in Pakistan in respect of human rights issues.” Discussing the Pakistan Federal Cabinet’s proposal, subject to approval by the President, for commutation of the Death Penalty to life imprisonment, in July 2008, FIDH, pointed out the probable 7000 death of the decision. It showed concern over row prisoners as beneficiaries frequent condemnations to death and 16 executions since the Prime Minister of Pakistan announced for commutation of Death Penalty The open letter also showed concern over adding the offence to the list of capital crimes by the prevention of Electronic Crimes Ordinance A reference in support of its point of view was made to the “unnecessary violation of the fair trial standards” in Pakistan as pointed out in aHamdard Islamicus Vol. XXXV, No. | published report by FIDH and HRCP on Death Penalty in Pakistan in 2007. Using the EU/Pakistan summit occasion as a pressure building instrument, the president of the FIDH further said, “FIDH urges the EU to raise its concern regarding the application of the Death Penalty in Pakistan, in conformity with the 1998 EU Guidelines on the Death Penalty. The EU should encourage the government of Pakistan to commute all death ind to take the initiative of a de lege moratorium sentences to prison terms, on executions as a further step towards abolition. Lerrer To Pagisran’s Prime Minister ro Anouisy THE Dearn Penacty By Human Ricurs Warcn, supsect: PAKISTAN: Asousi THE Death Penarty Immeptare Moratorium SHouLp PRECEDE ABOLITION Human Rights Watch (New York) in a letter to newly elected Prime Minister Yusuf Raza Gillani, on June 17, 2008, urged the Government of Pakistan to abolish the Death Penalty. It demanded for establishing a commission to review the offences for the capital punishment, its application, reforms to ensure international fair trial standards and announcement of a moratorium till the Death Penalty is abolished, In its letter, Human Rights Watch, showed concern over awarding of death sentence and executions in large numbers as well as its awarding “by special courts like the anti-terrorism, narcotics and military courts” It also condemned political use of capital punishment recording its infliction on the poor, illiterate, minority group members without trials meeting the “international fair trial standards.”° Brad Adam, Asia Director at Human Rights Watch urged the new democratic government to distinguish itself from previous military regime and participate in (then coming) General Assembly in September 2008 for the discussions on Death Penalty following its resolution passed in December 2007 calling for a worldwide moratorium on executions. Meantime it urged the government to ensure reforms in handing down or carrying out of death sentences in accordance with ‘international fair trial standards”, with assurance of defendant’s easy access to competent counsel; avoidance of torture for confessions.Hamdard Islamicus 26 Vol. XXXV, No. 1 As strong advocates of complete abolition of Death Penalty concluding its comments it was said, “Human Rights Watch opposes the Death Penalty in all circumstances because it is a punishment of an inherently cruel, inhuman and final nature.”®* INTERNAL The HRCP and FIDH in a joint report in Pakistan claim that “the application of Death Penalty in Pakistan falls far below international standards. In particular, they find that, given the very serious defects of the law itself, of the administration of justice, of the police service, the chronic corruption and the cultural prejudices affecting women and religious minorities, capital punishment in Pakistan is discriminatory and unjust, and allows for a high probability of miscarriages of justice, which is wholly unacceptable in any civilized society, but even more so when the punishment is irreversible. At every step, from arrest to trial to execution, the safeguards against miscarriage of justice are weak or non- existent, and the possibility that innocents have been or will be executed remains frighteningly high, the provisions of the law themselves leave much to be accepted as fair. Government of Pakistan's Inclination to Abolish Death Penalty In Pakistan abolition of Death Penalty from the penal system of Pakistan, was voiced by the present PPP government established in 2008. Prime Minister, Yousuf Raza Gillani, asked the then President, Parvaiz Musharraf, to commute all Death Penalty sentences to life imprisonment, using president’s prerogative for commutation, as a tribute to the slain leader of PPP, Benazir Bhutto, followed by cabinet’s adoption of commutation proposal of 7000 death sentenced prisoners. Later on after intrusion of the Chief Justice asking for an explanation, the government changed its course and instead of using executive order a draft for abolition of Death Penalty through the amendment in the law was prepared. It is important to note here, that at the time when the government was Voicing for Death Penalty abolition, the President promulgated the “Prevention of Electronic Crimes Ordinance” in which “cyber terrorism” was made a capital crime. This contradiction in government’s stance depicts the pressures of those lobbying for it in Pakistan.”“<< = Hamdard Islamicus 27 Vol. XXXV, No. 1 Local Media Voicing Western Point of View Regarding Shari‘ah Law On 10th April 2010, after unanimous approval of the 18th Constitutional amendment, editorial of the daily Dawn quoted Prime Minister, Yousuf Raza Gillani, as giving direction to the nation and suggesting possibility of further constitutional reforms provided support for these changes develops. The editorial suggested that “the Parliament must undo the legacy of Gen Zia, and to do so it must re-examine the Hudiid and blasphemy laws too” * SECTION VI Analysis and Study Findings States’ Compliance to Various International Documents Concerning Death Penalty UN charter, and UDHR are binding on all the member states. ICCPR 1966 has 165 state parties, many of whom have exercised their right of reservations to the entire covenant or to certain articles, including Article 6. Second optional protocol to ICCPR also has 72 state parties whereas 35 states have signed the document though not yet ratified, indicating their willingness to act in accordance with the protocol. European states have further pledged themselves through ratification or accession to the European Convention on Human Rights and its optional protocols 6 and 13 aiming to restrict and abolish Death Penalty in their jurisdictions. With an exception to Belarus the entire Europe has in practice abolished the Death Penalty. The Russian Federation introduced a moratorium on executions in August 1996, however, executions between 1996 and 1999 were carried out in the Chechen Republic.” Majority of the states who have signed CRC 1989, as well as state parties to ICCPR are bound to non execution of Juveniles, and practically no country is executing juveniles except the USA, who has placed reservation in this regard both on ICCPR and CRC. The Muslim States and International Legislation Concerning Death Penalty The Islamic countries in general, have not signed the 2nd optionalHamdard _Islamicus 28 Vol. XXXV, No. 1 protocol of ICC! Herzegovina, Uzbekistan, and Turkmenistan.” Amongst the Muslim PR. 1989 except Djibouti, Azerbaijan, Turkey, Bosnia- signatory states only Azerbaijan has signed it with the following Reservation, which received many objections from various countries as violative of the basic purpose of the document:”! “The Republic of Azerbaijai adopting the [said Protocol], in exceptional cases, adopting the special law, allows the application of Death Penalty for the grave crimes, committed during the war or in condition of the threat of war” (28 September 2000). “It is provided for the application of the Death Penalty in time of war pursuant to a conviction of a person for a most serious crime of a military nature committed during wartime.” Bosnia Herzegovina being a European state and Turkey, in her desire and efforts to be part of the European Union, seems to be justified for this. Other Muslim signatory states to optional protocol to ICCPR are newly independent Central Asian states still under the strong hold of Russia. The obvious reason for the restraint shown by the Muslim states in agreeing to this document is on the ground that the Death Penalty as capital punishment in certain serious crimes is an inherent part of the Islamic law. Pakistan and the International Law Observance Pakistan signed ICCPR in 2008, subject to ratification and with the reservation that it reserves its right of putting declarations and making reservations at the time of ratification in line with its constitutional framework. It ratified ICCPR, on 23rd June 2010, placing reservations on provisions of Articles 3, 6, 7, 18 and 19, to the extent that they are not repugnant to the Provisions of the Constitution of Pakistan and the Shari'ah laws.” Pakistan may, soon expect to receive external and internal pressure for joining the Second Optional Protocol of ICCPR aiming to abolish the Death Penalty, which only limits Death Penalty to the war situations. Pakistan has enforced the Islamic laws dealing with crimes which in certain crimes regard Death Penalty as the hadd punishment, for whichHamdard Islamicus 29 Vol. XXXV, No. 1 no compromise is possible. Since Pakistan had ratified ICCPR within its constitutional framework and the Shari‘ah laws, it will be possible to review its laws in the light of Qur’an and Sunnah and consider commutation of Death Penalty in cases other than fudid if considered important. Possibilities of Mitigating Death Penalty in Domestic Legislation in the Light of the Questionnaire No doubt, Pakistan needs to review its laws and judicial procedures with respect to Death Penalty, but simply abolishing it completely will be unconstitutional and repugnant to Islamic teachings as the Islamic law clearly prescribes Death Penalty for certain crimes.” In addition to establishing arguments for the Death Penalty in cases laid down by the Islamic law as mandatory, a questionnaire was developed and distributed amongst the judges, lawyers, Islamic scholars, students of LLM/MS Human Rights, and high officials from public sector. The questionnaire aimed to acquire respondents’ opinion regarding international stance against Death Penalty considering it against the human dignity and honour and in violation of individual’s fundamental right of life, It further inquired their opinion to assess the possibilities of mitigating the Death Penalty in Pakistan and the consequent effects of its complete abolition. In addition to the 35 persons who filled the questionnaire, discussions with influential persons from judiciary were conducted to have a deeper emphatic view of the issue. The findings of the questionnaire are presented herewith. FINDINGS OF THE QUESTIONNAIRE All the respondents replied in negative to the questions regarding Death Penalty as against the human dignity, honour and fundamental right to life, which is the major claim of international instruments. Few answers are quoted here: NO ~ Individual’s right to life is only till s/he has not claimed others?” life NO = Its not against, it supports the dignity of human beings killed by this person