trading justice for money

7/21/2019 Trading Justice for Money

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Trading justice for money: Prisoners on

Pakistans death row can pay off theirvictims families in exchange forfreedom - Asiaindependent.co.uk (http://www.independent.co.uk/news/world/asia/trading-justice-

for-money-prisoners-on-pakistans-death-row-can-pay-off-their-victims-families-in-

exchange-for-freedom-9966027.html)

Trading justice for money: Prisoners on Pakistans death row can pay off their

victims families in exchange for freedom - Asia - World - The Independent

Although the prison is only 10 miles away, it takes her four hours to make the

journey, a journey so expensive she can only afford to make it once every fourweeks. Her son, Ubeid, was only 16 when he was convicted as an accomplice in

thebrutal stabbing of a woman and her two sons. He has remainedon death

row, pending appeal, for 12 years. His situation is bleak.

Death row cells, measuring no bigger than 10ft x 8ft, are occupied by, on

average, eight to 10 prisoners. Legally it is meant to be one inmate per cell.

While wealthy prisoners can bribe guards for a larger cell, amenities and more

time outside, the average prisoner is allowed outside only twice a day, for 40

minutes in the morning and evening. The lack of space means inmates are

forced to sleep in shifts, head to toe.

Standing at the centre of the prison, set among the manicured lawns and

tended gardens surrounded by the daily cycle of chaos, corruption and abuse

sit the gallows. Above the scaffold is a prayer for the dead written in Urdu and
http://www.independent.co.uk/news/world/asia/trading-justice-for-money-prisoners-on-pakistans-death-row-can-pay-off-their-victims-families-in-exchange-for-freedom-9966027.htmlhttp://www.independent.co.uk/news/world/asia/trading-justice-for-money-prisoners-on-pakistans-death-row-can-pay-off-their-victims-families-in-exchange-for-freedom-9966027.htmlhttp://www.independent.co.uk/news/world/asia/trading-justice-for-money-prisoners-on-pakistans-death-row-can-pay-off-their-victims-families-in-exchange-for-freedom-9966027.html


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a message which reads, We dont hate the criminal, we hate the crime!. On

their journey from cell to noose, this is the last thing a prisoner will see before

they are hooded for execution.

There is a stillness, described a former inmate, in a prison of 5,000 people,

around the gallows you can feel death, you can hear it, it is heavy around the

air.

Following Decembers Taliban attack on a school in Peshawar which left 162

people, including 132 children, dead, Pakistans Prime Minister Nawaz Sharif

lifted the countrys six-year moratorium on executions. While supposedly only

applying to terrorism-related cases, there are fears from human rights

organisations and the international community that this precedent will be used

by the government to try non-terrorism-related offences under the Anti-

Terrorism Act. As it stands, each sentence is now assessed on a case by case

basis, with the next execution just one executive order away.

In September, days before the original moratorium was due to expire, inmateswere subjected to a very public show of psychological baiting. In full view of the

prisoners, the guards responsible for executions began to ceremonially clean

and paint the gallows which had lain covered and unused for more than half a

decade. The effect was to send the death row inmates into a state of delirium,

forcing the prison into a three-day lockdown.

While, as a signatory to the ICCPR (International Covenant on Civil and

Political Rights) and reliant on international aid (446m from Britain this year

alone), the government is under pressure to extend the moratorium, the

spectre of death at any moment hangs permanently over the prisoners.

Sabir Anokha falsely confessed to murder on his brothers behalf to protect his

siblings family. He was subsequently sentenced to death. He describes his

daily torment: When a person is sent to a death row cell he is hanged on a daily


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basis. Every day he is hanged, every day he dies and every day he comes back to

life this is a very long and brutal punishment.

Ilyas Khokar with his father and mother-in-law. Khokars murder conviction

was pardoned by his victims family (Anna Huix)

In 2008, when the moratorium was introduced, Pakistan had ranked fifth in

the world for state executions (averaging between 250 to 350 a year). With

death sentencing currently at a record high, over the past six years the number

of prisoners awaiting execution on death row has risen to over 8,500 the

highest in the world. The exact figure is not known.


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With a corrupt police force and an intransigent and inefficient judicial system,

the only thing saving Sylvias son Ubeid from the gallows is the temporary stay

of execution afforded him by the governments partial moratorium.

However, with no indication as to how long this will last, and fears that the

recent lifting for terrorism- related offences will affect other death penalty

cases, there is only one avenue left open to Sylvia to save her son: the

possibility of a blood money pardon.

Introduced in 1990, as part of a wider Islamification of the Pakistan Penal

Code, the Qisas and Diyat Ordinances enshrined in law the practice of blood

money. This included the right for the victims next of kin to pardon those on

death row for the sake of God and for financial compensation (blood money

diyya) in lieu of eye-for-an-eye punishment (Qisas).

Traditionally valued in terms of livestock, gold or silver, today the price of

diyya is set according to the current market value of 30.63kg of silver (roughly

34,000). In reality, the exact amount paid varies considerably from case tocase depending on the relative economic circumstances of the families

involved.

Sarah Belal, co-founder and lead partner in Justice Project Pakistan (JPP), a pro

bono legal firm specialising in cases of death row and torture, cites the case of

Zulfiqar Ali Khan to demonstrate the differing motivations which drive families

to forgive in exchange for blood money.

Zulfiqar, whose newspaper plea inspired Belal to start JPP six years ago, was

convicted, along with his brother Khursheed, of murdering two men in a

roadside argument in 1997.

Here you have two victims and two separate families from different

backgrounds, describes Belal.


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One family is economically strong and socially powerful within their

community, while the other is very poor. That money to the widow of the

second victim and her children is essential in order to afford them

independence, ensure their survival and secure the children some form of

inheritance.

For the economically strong family, their willingness to forgive is not driven by

financial incentive, but by a desire to fund the construction of a mosque. They

do not need nor want the stigma of having accepted blood money.

Even after 16 years, states Belal, the murder and its effect within the

community is such a sensitive issue that they dont want people to think that

they have taken blood money and, in effect, sold the murder of their son.


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A panchaat (bench of elders) in the town of Chichawatni. The panchaat act as

negotiators between victims and perpetrators (Anna Huix)

Over the intervening 16 years, Zulifiqar has had his date of execution set three

times, only for the judge to grant a stay in the final few minutes before the

sentence was to be carried out. For his father, this ordeal, combined with the

pressure of having to raise the 34,000 needed for his sons diyya, has slowly

driven him towards a mental breakdown.

While cases settled by diyya remain relatively low (around 200 to 300 a year)

the attention they receive both within Pakistan and internationally remain

disproportionately high.


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In recent years, the practice of blood money has been pushed into the spotlight

by a series of highly publicised cases. In 2011, CIA contractor Raymond Davis

was convicted of murdering two Pakistani civilians but pardoned amid

widespread protest following a reported payment of $2.3m. In June 2013,

Shahrukh Jatoi, a member of one of Pakistans wealthiest and most powerful

families, was sentenced to death for murder only to be released following a

blood money settlement. In June this year, the bludgeoning of Farzana Parveen

outside the High Court in Lahore was condemned as the latest example of an

honour killing involving blood money.

However, despite increasing criticism over the way in which blood money is

being manipulated by wealthy families, over 70 per cent of the population

support the Qisas and Diyat laws and while they receive the greatest publicity

and attention, cases involving wealthy perpetrators represent the extreme

exception.

Through a combination of duress, political connections and access to the best

legal representation, any case involving a rich or powerful perpetrator nevermakes it to the trial stage. They are either thrown out, dropped by the

complainant due to pressure from the police or, as in the Jatoi case, paid off.

For many in the West there remains an overwhelming ethical rejection of blood

money, seeing it as a relic not in keeping with a 21st-century legal system. This

is reflected by the attitude of most human rights groups who operate inPakistan on death row cases.

Many NGOs involved in fighting the death penalty simultaneously campaign

against the practice of blood money. There is unease towards a social justice

system which condones a murder + money = freedom equation. Whether

these positions are driven by expediency, playing to their supporters (and

benefactors) preconceptions, or by an attempt to change a system which on the

surface seems to benefit only the rich, in reality, aligning these two objectives


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is contradictory and mutually disadvantageous. For many prisoners, their only

hope of avoiding the gallows lies in the reconciliation process afforded through

blood money.

A street in Gulgasht Colony, Lahore, part of the route taken once a month by

Sylvia Pershaad to visit her son on death row (Anna Huix)

IA Rehman, Pakistans Commissioner for Human Rights, believes that the

international bias against blood money as a barbaric exchange is accentuated

by a culture of fear and social rejection.

People are generally not willing to discuss [Qisas and Diyat] because it has

been wrapped in the filament of ideology and belief.

What it has served to do is to change the nature of the offence, turning serious

crime into a civil action. For Rehman, murder is a crime against society, but

Qisas and Diyat has made it a private affair between the culprit and the victims

family.


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The Qisas and Diyat laws are often accused of privatising justice to a point

where the state is increasingly removed from its responsibilities of judicial

authority. According to Rehman, a lack of understanding and poor

implementation has led to the law being manipulated. He gives a common

example of a man who killed his own daughter and asked his son to take

responsibility for the crime. The son was arrested but later pardoned by his

father as the next of kin. Other such cases often involve the collusion of

household servants who, through bribery or threats, act as proxies and ensure

their masters never face trial.

Intimidation is often used to force many poor (or poorly connected)

complainants to forgive. Similarly, there is no provision within Qisas and Diyat

to prevent wealthy offenders repeatedly paying blood money and reoffending.

In most cases, the realities of poverty outweigh any moral consideration. For

Ishtiaq Rasool, whose father was killed when he was just 15, the choice to

forgive was a simple one of survival.

When we talk about reconciliation and pardoning, it is very clear that Shariat

allows us compensation for the care of our brothers and sisters. Since we are

very poor, labourers with no land, we must do what we can to survive.

Ishitaq is quick to emphasise that he has not forgiven the murderer of his father

but will pardon him purely for the sake of his family. There is a mutual desire

to save him and to save us, as well.

The blood money acts as its own form of punishment, just as the provision for

financial compensation and damages functions in Western legal systems.

However, Ishitaqs fathers killer, Boota Mashi, and his family can never hope

to raise the necessary amount of 1 million PKR (around $9,450). With both her

son and grandson (the latter for a separate crime) on death row, Bootas mother


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oversees a household with no recognised bread winner, relying on community

hand-outs and a monthly donation from a sympathetic judge.

This financial purgatory leaves many in a legal limbo for years with no end in

sight. One way out of this impasse involves the exchange practice of vennii,

where daughters are offered as brides in place of money. Although not

technically condoned within Qisas and Diyat, this practice is still widespread,

especially in rural areas, and we learnt that such a compromise was suggested

by Ishtiaqs family. At the time the girls were nine and 11, and their betrothal

came with the added complication of having to convert from Christianity to

Islam. Despite pressure to accept the compromise, their mother refused to

sanction the marriage, leaving her only son on death row and her family

fighting for its survival.


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Allama Syed Ziaullah Shah Bukhari (on the right), a Muslim scholar who

specialises in the implementation of Islamic law (Anna Huix)

In 2011, a 10-year-old boy was imprisoned for shooting dead his neighbour in

Yahounabad, one of the poorest suburbs of Lahore. The boy, whose name

cannot be disclosed, now 13 and working as a house servant in a wealthy

district of Lahore, was pardoned by the victims daughter in order to support

her two younger sisters who had been left effectively homeless. Previously,

their only source of income had come from their mother who had worked as a

prostitute.

When implemented correctly, Diyya, therefore, functions as a mutuallybeneficial transaction. Furthermore, Qisas and Diyat is seen as a means to stop

the vicious cycle of retribution which plagues family disputes that drag on for


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generations.

Zahid Aslam Malik, the lawyer representing Sylvias son during his appeal,

echoes the view held by many in Pakistans legal community, that the

voluntary act of forgiveness is good for society as long as it is not done under

duress.

The murderer has been forgiven by the legal heirs, and as such by Allah. This

stops the cycle of revenge between the victims family and the family of the

accused. The payment of diyya is, therefore, essential for the smooth running

of society.

But without Qisas and the threat of eye-for-eye justice the law provides

incentives for the whole of society to commit such acts. This is a universal law

but people do abuse it. On the basis of how it is written, the law is perfect and, if

implemented as such, results in peace and harmony. Islam has given us two

methods for social stability; one is Qisas, the other Diyat.

This represents stability, but stability based on the stick of retribution and

carrot of reconciliation.

It is only in the very rarest of cases that retribution, be it financial or penal, is

surrendered entirely for the sake of reconciliation.

Sixteen years ago, Ilyas Khokar, who works in an ice factory on the outskirts of

Lahore, was sentenced to death for murder. Although Ilyas claims there were

other people involved with him, he does not deny the charges. When I was

sent to prison I thought it was the end of my life. I had lost all hope.

Having been refused bail and exhausted all other legal avenues, Ilyass father

Samuel decided he would bypass the state and contact the victims family

directly.


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I would visit their shop daily, Samuel says. I started to investigate their

relatives and in this way I was able to meet and involve most of the women in

their family. I would meet each relative every two or three days. I would go to

their home every week. I tried to build a relationship with the complainant.

After 22 months of daily visitations, conversations and discussions, the family

agreed to pardon Ilyas for the sake of God.

We never paid a single penny, claims Samuel. However, while no money was

paid, their agreement to pardon came with one condition: that, following his

release, Ilyas make the journey to the victims family to ask for forgiveness in

person.

Kursheed Ahmed Khan and his father Rasheed (seated). Kursheeds brother

Zulfiqar was sentenced to death and his family were asked to raise 34,000 for

his release (Anna Huix)

Although it has been over 13 years, we track down the relatives of the victim,

still working in the same flower shop in the centre of Lahore. We ask thecomplainant, Haji Rasheed, if he would be willing to discuss the familys

motivations for pardoning Ilyas without blood money, but after agreeing a


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meeting he goes off-radar and all subsequent attempts to meet come to naught.

No one who works or lives near the Rasheeds would acknowledge their

existence or that the crime even took place. Both family and community closed

ranks.

Even in cases such as Ilyass, where the decision to pardon was not driven by

financial incentive, the reaction of the victims family reveals the social stigma

still associated with blood money pardons.

Belal acknowledges that while forgiveness in and of itself remains incredibly

difficult, whether they take the money to forgive or whether they waive the

money, there is a necessary process of forgiveness that has to take place.

For Muslim scholars such as Allama Syed Ziaullah Shah Bukhari, who

specialise in the implementation of Islamic law, what differentiates Shariat

from other secular justice systems is this provision, enshrined in the Quran, to

forgive. This process of atonement, or Qyfadda, forms the central component

of the Diyat Ordinances, prioritised in Islam over the supposed materialmotives in accepting blood money.

What we are seeing over the past 15 or 20 years, since diyya really came to

prominence within the law, is a change in cultural value. This represents a shift

from pardoning as a part of a culture which has existed within communities for

centuries to one based on the financial rewards afforded by diyya.

Nevertheless, for Belal, this emphasis on forgiveness positions Islamic

jurisprudence as a transformative experience, precisely because the victims

family and the perpetrators fates are bound from not just when the crime is

committed but from when the sentence is passed.

While Pakistans endemic corruption and labyrinthine bureaucracy favours a

localised panchaat system (councils made up of local politicians, religious

figures and landowners) which seeks to resolve disputes for the good of both


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parties, the prioritisation of reconciliation over punishment has led to calls for

a form of transformative justice to be integrated into legal practice in Britain.

Now they are trying this in Western judicial systems, concludes Belal,

experimenting with restorative justice, whose programmes are successful

both for the defendants who have less chances of repeat offending as well as for

the victims families who achieve some sense of catharsis and closure.

Yet while the debate intensifies in Pakistan and the international community,

for those who are on death row or in abject poverty, as either the perpetrator or

victims of murder, blood money remains perhaps the only means of escape.

For people like Sylvia, it is the only light at the end of the tunnel.

Elliott Goat was the winner of The Independents 2013 Wyn Harness Prize for young

journalists

Death states

Until its moratorium against the death penalty began in Pakistan in 2008, it

was the country with the fifth highest number of state executions. The top five

now, according to Amnesty International, is:

1. China

2. Iran

3. Iraq

4. Saudi Arabia

5. North Korea

trading justice for money

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