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Perspectives

Can Pakistan introduce public hangings and castration for rape and sexual crimes?

Adopting such laws is complicated and may expose Pakistan to further problems on the international front.
21 Sep 2020
Jamaat-e-Islami's women's wing held a rally in Karachi earlier this month to protest against the Motorway incident. (Photo by Reuters)
Jamaat-e-Islami's women's wing held a rally in Karachi earlier this month to protest against the Motorway incident. (Photo by Reuters)

In the wake of the Motorway gang rape case, Prime Minister Imran Khan has expressed a desire for public hanging or chemical castration as punishment for rapists to deter such crimes. Putting aside the effectiveness of public executions in curbing heinous crimes, adopting such laws is complicated, and may expose Pakistan to further international predicaments.

Why public hangings are unlikely to make a comeback

Ratified in 2010, Pakistan is a member of the International Covenant on Civil and Political Rights (ICCPR), which is governed by the United Nations Human Rights Committee. The ICCPR requires Pakistan to not adopt aggravated methods of execution.

Although the ICCPR does not outlaw capital punishment per se, Pakistan introducing public hanging will undoubtedly amount to violating Article 7 of the ICCPR (i.e., "inhuman or degrading treatment or punishment"). This will consequently violate Pakistan’s international law obligations, and further marginalise it as a member of the international community.

For instance, Iran, which is a party to the ICCPR, continues to disregard provisions of international human rights instruments relevant to the death penalty. It systematically engages in state-sanctioned public executions (e.g., hangings) despite international pressure, condemnation and marginalisation.

If any form of public execution is effectuated by Pakistan through domestic legislation or an act of government, Pakistan would likely face marginalisation, if not moral sanctions from the UN and the rest of the international community, which Pakistan can ill afford even at the best of times.

This is not the first time that Pakistan has engaged in such rhetoric. During General Zia-ul-Haq’s reign (when Pakistan had not yet ratified its international human rights obligations), beyond some executions being carried out in prison cells before other inmates, people were not usually forced to watch public hangings.

In 1992, then-Prime Minister Nawaz Sharif's desire for public hangings through erstwhile speedy trial courts were halted by the Supreme Court of Pakistan. Bills, proposals, and resolutions for public executions are still commonplace every time a heinous crime attracts public attention.

Internationally, it is well documented and accepted that far from deterring, such punishments instead perpetuate violence within society. The functions of old penal ceremony have long been abandoned in all parts of the world, and with the development of international human rights law, consensus has developed for humane methods of execution.

Chemical castration — a divisive practice

Castration as a form of punishment for sex offenders has divided international law. Physical/surgical castrations do violate international law prohibition on torture and other cruel, inhuman or degrading treatment which is set out in the ICCPR and the Convention against Torture (CAT).

Unlike surgical castration, where it is possible to regain sexual desire by taking testosterone, chemical treatment is seen as a less invasive and more effective option as the offender is not able to reverse the results by taking other hormonal drugs.

ICCPR and CAT members such as New Zealand, Portugal, Argentina and England have legislated chemical castration (via anti-hormone drugs) as punishment for certain sexual offences (e.g., repeat sex offenders against minors). However such punishments are rare, voluntary, and are seen as more of an effort to help treat offenders rather than to punish them. The European Court of Human Rights has held in certain circumstances that a state performing protective chemical castration on a repeat sexual offender is not a violation of ICCPR and CAT.

Other ICCPR and CAT members such as Poland, South Korea and Russia have legislated mandatory chemical castration for individuals convicted of child abuse. They have been met with international scorn, and are treading on thin ice.

If Pakistan adopts a form of voluntary chemical castration for extraordinary sexual offenses, the international community may see it as legitimate reform, depending on legislation and execution of the laws. This is not to negate empirical studies that have demonstrated significant success with cognitive-behavioural psychoanalytical therapy instead of chemical castration though.

Regardless, before any measures can be implemented, there must be clear deliberation, understanding and, consequently, laws striking a delicate balance between fundamental rights, fair-trial, consent to treatment and rehabilitation. Given Pakistan’s developing infrastructure, this may prove a bridge too far for now.

What is clear, though, is that any form or practice of forced/involuntary castration (whether physical or chemical) will hamper Pakistan’s international law obligations, standing and — most important of all — effectiveness to curb such crimes.

Ali Chughtai

Ali Chughtai is a lawyer and can be reached at [email protected]