Can Legal Fiction Overcome Religious And Constitutional Locks? Death Penalty: A Pakistani Perspective

Abstract

Death Penalty is not really an issue in Pakistan. Mostly because it’s an ideological state, Constitutionally having a religion which clearly provides for death penalty. In addition to this ideological check, there is also a Constitutional check. Constitution of Pakistan states that all laws need to confirm to Islam and Supreme Court of Pakistan says that among others, this part of Constitution constitutes the ‘Basic Structure’ of the Constitution which cannot be amended, even by adopting the procedure that Constitution itself provides for its amendment!After making a jurisprudential argument in favour of abolition of death penalty, this paper explores the ideological and Constitutional checks in Pakistan legal system locking the death penalty in the system. In the end, an argument is made that in addition to taking the political course, a legal path can be taken to abolish the death penalty in Pakistan, without violating the Constitutional check; legal fiction.