SIXTEEN years ago, Pakistan promulgated the Juvenile Justice System Ordinance (JJSO) 2000 to bring its current juvenile justice framework into conformity with its international obligations. The law was meant to shield children who came into conflict with the law from the rigours of the formal judicial system. This included right of legal aid, expedited trials held in separate courts, access to services for rehabilitation and reintegration with their families. The law also provided protection to accused children from corporal punishments, torture and the death penalty.
Despite the existence of such a comprehensive legal framework (and being one of the earliest countries in the world to ratify the 1998 UN Convention on the Rights of the Child), the government has failed to demonstrate much interest in implementing a comprehensive juvenile justice system.
The JJSO was not enacted retroactively. A significant proportion of the population of juvenile prisoners, therefore, fell outside the ambit of the protections accorded by the law, including protection from the death penalty. However, the Pakistani president issued a notification in 2001, in exercise of his powers under Article 45 of the Constitution (ie, the power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court).
The police and courts follow no age determination protocols.
Under the notification, juvenile offenders sentenced to death prior to the enactment of the JJSO were to be accorded remission following an inquiry into their juvenility. An upcoming report by Justice Project Pakistan, Death Row’s Children, reveals that such inquiries hardly ever took place; when they did they were marred by arbitrariness and inefficiency.
Additional shortcomings in Pakistan’s juvenile justice system, which result in the government’s unlawful, arbitrary implementation of the death penalty against juvenile offenders have been highlighted in the report. The research analyses individual cases of juvenile offenders who have been executed or are awaiting executions to highlight the many junctures at which violations occur, starting from the arrest to the juvenile’s unlawful march to the gallows.
In Pakistan, police and courts follow no age determination protocols. This is especially problematic for a country where birth registration rates are dismal. According to official estimates, nearly 10 million children below five years are unregistered, with the figure growing by nearly 3m every year. Courts inevitably posit the burden of proof on juvenile offenders who are not accorded any benefit of doubt. Since a majority of those facing arrest lack any form of official documentation, they are placed in a virtually impossible situation.
In May 2016, the UN Committee on the Rights of the Child in its concluding observations urged the government to order a stay in executions involving minors and launch a review of all cases where there is an indication that the accused was a juvenile.
The need for such a review cannot be overemphasised as it is estimated that 10pc of the current death-row population constitutes juvenile offenders. Muhammad Anwar was sentenced to death in 1998 for a crime allegedly committed when he was just 17-years-old. Despite having sufficient proof of juvenility the government remained unable to provide the benefit of this presidential remission and he is still on death row. In December 2014, Anwar came within hours of execution; he remains at serious risk of receiving another warrant.
Similarly, Muhammad Azam is another juvenile offender who was arrested in 1998 for murder and convicted and sentenced to death by an anti-terrorism court prior to the JJSO’s promulgation. Copies of his birth records, jail records, including a copy of the birth roll confirm he was 17 when he was first admitted into custody. Jail records also demonstrate that Azam was initially held in Youthful Offenders Industrial School Karachi — a borstal institution especially designed for juvenile offenders. Following the 2001 notification, jail authorities sent a request to the trial court asking the court to determine Azam’s age to ascertain whether his sentence should be commuted. However, he couldn’t get the relief on the basis that the court was already functus officio following the conclusion of the appeals.
JPP in its report asks the government to reinstate the moratorium in the first instance, especially for those prisoners who were juveniles or can avail the benefit of reasonable doubt of juvenility at the time of offence committed. The report additionally asks for the enforcement of the solid age determination protocols, in compliance with international legal and policy standards.
As Pakistan prepares for the Universal Periodic Review in November 2017, it is absolutely essential that it institutes these measures in order to demonstrate its commitment to human rights in both the domestic and international arena.
The writer is a child rights activist and law practitioner in Lahore.
Published in Dawn, February 16th, 2017