Capital Punishment

The recent practice of execution by the afghan government has further fueled the controversial debate whether Capital Punishment constitutes an appropriate punishment to the most heinous crimes or it is inhumane. Throughout of the history of world different law enforcement institutions, criminologists, anthropologists, philosopher, religious figures and general public have argued  about it and have offered various argument to support or reject its practice. Despite a huge number of discourse Capital punishment still it remains  one of the most controversial aspects of justice system in the world. The history of Capital Punishment traces back to the immemorial time or in other words there is an impression that punishment must be as old as mankind.

However a record history can be find in the Buddhism philosophy of 3rd and 4the century B-C founded by Siddhartha Gautama in the North East India. Chapter Ten of Dhammapada status  “All men tremble at punishment, all men fear death; remember that you are like unto them,  everyone loves life as you do therefore do not kill, nor cause to kill” Although the chapter talks against killing  but however still Buddhism is  not clear about the death penalty as a punishment for the killers. Another example can be found in the Book of Punishment 536 B-C (Hsing Shu or Xingshu) in this book the circumstantial evidence suggests some of the punishments included hard labor, tattooing, cutting off of the nose, castration, feet amputation and death, the latter, usually by beheading in the nearest marketplace.  As history progressed more involved methods of executions were adoubted.

In the modern time, Capital punishment is a “practice in which prisoners are executed in accordance with judicial practice when they are convicted of committing what is known as a “capital crime.” Capital-crime refers to any heinous crime that can be punished by death. Capital punishment depends on the crime, legal system and doctrines of particular countries and constitution of the country. Worldwide, this practice is extremely controversial. Many countries of the world oppose its practice while others favor it.  Several arguments by many scholars in favor as well as against the punishment can be found.

The supporters of Death Penalty claim that if you take a life you should pay with your life which decreases the rate of crime but if the criminals feel that they can easily get away with a light sentence for one of the most atrocious possible crime, the practice of crime will increase. The opposition is mainly focusing on international treaty on civil and political rights, also known as ICCPR : Article 6 “. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” And the international human right treaty UN Convention against Torture UNCAT The provision and convention that aims to prevent torture and cruel inhuman degrading treatment or punishment around the world.

Capital punishment has been one of the most controversial topic Different scholars have agreed with both groups of people the supports and those who oppose it. They have presented various arguments in favor and against of capital punishment among many other well known philosophers on Capital Punishment the two distinguished social and political philosophers had taken great interest in the emerging international judicial and political discourse on the death penalty and its abolition. Both of the political philosophers have debated thoroughly the issue are Professor Louis P. Pojman and Jeffrey Reiman. Pojman justifies the practice of execution by appealing to the principle of retribution “we deserve to be rewarded and punished according to the virtue or viciousness of our actions”. While Reiman argues “that although the Death Penalty is a just punishment for murder, we are not morally obliged to execute murderers”. Both of the philosophers further argue by giving an example. Pojman “What people fear more will have a greater impact; people fear death more than any other humane punishment”.

Reiman concludes that it would be more civilized to send criminals to prison than to end their lives. Analyzing the arguments of both philosophers, it seems that Pojman believes that death punishment deters more criminals than life imprisonment does while Reiman is focusing more on morality.  Pojman also points out that when someone commits a crime against society, it is only right that s/he be made to suffer by society in return, so in that sense punishment is often seen as the natural response to crime.

To understand the reasons why punishment happens, it’s further placed into three categories by different philosophers.

  • Utilitarian reasons- we punish in order to achieve positive consequences, largely inspires by jermy Bentham;
  • Justice reason- we punish because its fair and right, which has its modern root in immanuel Kant (von Hirsch 1992:55).
  • Functional reasons- we punish because it is essential for the functioning of society, most famously exemplified by Emile Durkheim. Why Punishment

Capital Punishment in Afghanistan’s context:

In modern statues like European or American when a person want to research about any specific topic He/She can find a lot of available date online. As opposed to these states one is not in a position to go deep if they want to explore the historical sources of a topic related to Afghanistan. It’s unfortunately due to the lack the lack literature and academic research on various contemporary discourses. Capital Punishment in Afghanistan is not mush studied, criticize or evaluate thus this subject requires to be studied and examined in different perspective.

However the available date suggests that Capital Punishment has been in the legal and traditional system. It has been practices in Afghanistan for quite a long time without facing any challenges until very recently it has severely criticized by human rights groups, and the UN and the European Union. The legal system of Afghanistan consists of Islamic, Statutory and customary rules which has developed over centuries.  In Afghanistan context Capital Punishment is legal. Under Afghan Law and traditional justice systems, the death penalty is an option for severe crimes such as murder, apostasy, homosexuality, rape, terrorism, drug trafficking, and adultery. Under military law, it can be used in cases of treason and desertion. The two methods prescribed under Afghan law are hanging and firing squad.

Death Penalty under the 1976 Penal Code of Afghanistan:

The 1976 penal code of Afghanistan which is the milestone in the Afghanistan legal history was the first in its kind in trying to comprehensively covering crime and their punishment.  Death Sentence was introduced in 1976 penal code of Afghanistan in situations like:

  • Murder: Murder is prosecuted as carrying a qisas (retributive) penalty under the Hanafi school, if Shariah evidentiary standards are met. If those standards are not met, murder is prosecuted as a tazir offense.[5]
  • Espionage: If a person spies for a foreign state or is employed by it during hostilities, the punishment is death.[39]
  • Homosexuality and Zina: Zina offenses carry hudud penalties enabled by Article 1 of the Penal Code, if evidentiary requirements are met.[47] The treatment of homosexual sodomy varies between the schools, and Abu Hanafi argued that a tazir penalty (not a hadd penalty) should apply. [48]
  • Terrorism related offense A person who intentionally destroys buildings[21]or poisons or infects water resources “shall be sentenced to death.” “A person who deliberately endangers the safety of public land, water and air transportation,” [22]

Human rights are natural rights. The state and the law exist since the creation of mankind. The State is subordinate to protection of human right therefore to protect the right of individual within a society the state establish intuitions according to its religion, custom, history, and factors attached to cultural values. In the case of Afghanistan it’s clearly stated no law should contradictive with Islamic values and if one looks at the Islamic Law it capital punishment is allowed in Islam. The Qur’an prescribes the death penalty for several offences crimes listed below

  • Treason/apostasy (when one leaves the faith and turns against it)
  • Terrorism
  • Piracy of any kind
  • Rape
  • Adultery
  • Homosexual activity

Since 1976 the penal code has not been amended because it is a legal code drowns up before the constitutions and reckoned the norms and values of the Islamic Law.  Last year Afghanistan’s Ministry of Justice and the Ministerial Committee of Shari’a and Traditional Penalty and Investigating Crimes in addition to above list have recently proposed at least 26 amendments to the country’s Penal Code. Among them are “Among them are public stoning to death for adultery by married people, amputation of hands and feet for theft and robbery, and flogging of up to 100 lashes for unmarried people found guilty of adultery. Amnesty International

Although Afghanistan does have the death penalty but the code did not make homicide the state affairs.  The judicial system has an option of discretionary penalty depending on the family of victim to determine the death of the offender. Even though Under Article 1 of the 1976 Penal Code qisas penalties apply under the Hanafi school of Sunni Islam It is also  clearly stipulated that the State will not  bother to prosecute the offender if the family of the victim  of the vicum agree to accept a payment of diyyah (blood money compensation), [83] but this is still a mandatory death penalty because the judiciary cannot award a discretionary penalty unless the victim’s family permits it.

The recent gang-rape case in Paghman revolved around the victims and their families’ longing for justice they considered Capital Punishment necessary for addressing the convicted crime. The longing for justice is not related to any specific group of people or any particular country in view of the fact that if we look at the collected data about Capital Punishment there are several statistics which indicates a strong correlation between execution and the deterrence. One of the researches suggests that “Capital-Punishment has a strong deterrent effect, each execution results, on average, in 18 fewer murder-with a margin of error of plus or minus ten. Tests show that results are not driven by tougher sentencing Ellsworth 116.  The study claims reduction so if the Capital punishment has the potential to reduce crime why should it be opposed?

 “When Demetry Smirnov killed his ex-girlfriend in Illinois in 2011, prosecutors discovered that he had researched the law on the internet to discover if the state had the death penalty before going ahead with the killing”. This example proves the argument of Pojman that man fears death, so it is reasonable to assume that if Illinois had not just abolished it, she might be alive today

The status quo in Afghanistan shows on the one hand Afghanistan is faced with the scarcity of resources and on the other hand number of serious crimes is growing every day. In such situation keeping criminals alive would mean burden on the country’s economy which already lack resources. Also the death penalty is not about taking a life, it’s rather about protecting the general public from those who are not capable or even willing to be rehabilitated and thus pose a permanent threat to the general public.

Death penalty is not the best solution but it is a better solution especially in cases where inhumane crimes have been committed. In my view supporting the abolition of capital punishment for crimes such as rape or murder in current time would result in an increase of homicidal crimes.

I do not like violence, I am not a fan of exaction and I am not necessarily calling the death penalty the best option but, after reading about the arguments of both professors and looking at the Afghan society I conclude with the support of the argument of Pojman that the criminals are abusing the morality and code of the society, committing an horrible act such as murder, rape, and terrorism. Since humans fear death the most, thus punishing few will be a great lesson for others However, either the rapist should be executed or not it can be decided best by that person who suffers the worst.


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