‘Crime’ and ‘punishment’ By Arifa Noor

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IN 1773, in France, a young servant girl who had killed her employer was sentenced to death. But the judgement did not simply end there.

It was ordered that she be taken to the place of execution in a cart used to collect rubbish. At the spot, she was to sit on the same chair on which her mistress had been sitting at the time of the murder. Her right hand was to be cut off and burnt, after which she was to be dealt four blows with the murder weapon — two on her head, one on the left forearm and the fourth on the chest. This was to be followed by her being hung and strangled. Two hours after this, her head was to be removed and hung on a pole.

This incident is narrated in a famous but hard-to-read for the faint-hearted book, Discipline and Punish: The Birth of the Prison by Michel Foucault.

The book traces Western society’s changing views of the idea of punishment over time. Earlier, the writer argues, the punishment was a public spectacle. Torture was part of the investigation as well as the sentence, and the punishment was linked inextricably to the body of the accused.

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Society will need to accept that correction rather than punishment should be the aim.

No wonder then, according to the book, capital punishment came in a variety of forms, gory by modern standards — hanging, or having hands or tongues cut off before being hanged, burnt alive, or killed and burnt; flogged and killed, hung up and left to die of hunger. The list goes on.

In fact, he provides an eyewitness account of a man punished for attempted regicide which goes on for three pages — he is burnt, quartered by horses and then the limbs burnt at the stake.

Foucault argues that with time, the focus on the body of the accused changed. In his words, the body was touched as little as possible. “One intervenes upon it to imprison it, or to make it work … physical pain, the pain of the body itself, is no longer the constituent element of the penalty. From being an art of unbearable sensations, punishment has become an economy of suspended rights.”

Foucault comes to mind when a story or an incident in Pakistan lays bare the workings of the local judicial system.

In recent times, there was the call for a child rapist to be publicly hanged. And back in 2000, the courts sentenced a self-confessed killer of children. Javed Iqbal, who had confessed to murdering 100 children, was ordered to be chopped into pieces and dissolved in acid in front of the victims’ parents.

According to the Guardian, “‘Javed Iqbal has been found guilty of 100 murders. The sentence is that he should be strangled 100 times,’ Judge Allah Baksh told the court in Lahore. ‘His body should be cut into 100 pieces and put in acid, as he did with his victims’.” The judge had further ordered that the punishment be carried out in a park in Lahore.

And then last week, there was the debate over the sentencing of Pervez Musharraf for high treason and the, by now infamous, paragraph 66: “We direct the law enforcement agencies to strive their level best to apprehend the fugitive/convict [Pervez Musharraf] and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk [in front of Parliament House], Islamabad, Pakistan, and be hanged for three days.”

While there has been and will be considerable debate over the judgment, para 66 has been universally condemned.

Read more: ‘State of emergency’: A timeline of the long-drawn high treason trial of General Pervez Musharraf

But truthfully, it’s not unusual, if seen in light of the public debate over ‘crime’ — and its many manifestations — in Pakistan. Here, in a society, where modernity and tradition don’t just share space but rub up against each other, frequently and uncomfortably, many of us tend to view punishment as an act which, if ugly and public enough, will not just be ‘punishment’ enough but may also deter others in future.

For why else would judges, however occasionally, pronounce such verdicts? Why would political leaders threaten to drag each other in the streets or argue that public hangings in high numbers will be deterrence in the future? Or the public too demand such acts at times for rapists or child molesters or the corrupt?

Because a judicial system based on modern notions of crime and punishment goes only so far, if our approach to crime and its causes remains stuck in notions that are perhaps more ‘traditional’ than ‘modern’.

Hence, judges find the space to write judgements that remind us of a time we’d like to believe we have left behind; and those in positions which do not allow them to pronounce verdicts argue in favour of public spectacles as a deterrent, while the police’s use of torture is justified for an accused who is seen/believed to be guilty. So, when there were reports that the lawyers picked up for attacking a hospital were beaten up by police, it was seen as due ‘reward’ for what they had done. Human rights violations during the operations in Karachi in the 1990s were justified similarly too.

If this is to change, we may first have to change our approach towards the judicial system and what it’s supposed to achieve. Society will need to accept that correction rather than punishment needs to be the aim, that the aim of any punishment is to help the culprit fix his behaviour rather than simply punish him and deter the rest. (That societies do not manage to achieve ‘correction’ even if their judicial systems aim for it, is a separate and equally important debate.)

Without a change in our thinking, there will be more judgements like para 66.

Only if we change our approach will we recognise the importance of ensuring the rights of all, including the accused, instead of obsessing with punishing the culprit. Only then will we understand why bail is a right and not a luxury. And more importantly, perhaps then it might be possible to ensure justice for those accused of blasphemy. For if we don’t even believe in the idea of correction, how can anyone accused of blasphemy be awarded anything but death?

The writer is a journalist.