The following is an excerpt from Justice Project Pakistan’s (JPP) book, The Death Penalty in Pakistan: A Critical Review, to be launched on July 11, 2019 in Islamabad. A culmination of 10 years of JPP’s work, the book documents the many ways in which Pakistan's application of the death penalty intersects with legal, social and political realities.
It focuses on how capital punishment impacts some of the most vulnerable populations: juveniles, the mentally ill, persons with physical disabilities, low-wage migrant workers imprisoned in foreign jails and the working class.
Relying on public records for multiple JPP clients sentenced to death, nearly a decade of experience in the field, as well as extensive experience with legislation and advocacy, this book tracks the many junctures at which violations occur, from arrest to sentencing to execution.
Aftab Bahadur was arrested at the age of 15 for the murder of a woman and her two children. Aftab protested his innocence to the very end. The only eyewitness who testified against Aftab recanted his statement by claiming that he had been coerced by the police to provide his damning testimony. In fact, he admitted, that Aftab had not even been present at the scene of the crime. The Supreme Court of Pakistan, however, refused to consider the exculpatory evidence stating that a fresh appeal was untimely. Aftab Bahadur therefore, marched to the gallows at the age of 38 after having spent over 22 years on Pakistan’s death row.
He was executed on 10 June 2015.
Like 160 countries in the world, Pakistan has enacted legislation prohibiting the sentencing and imposition of the death penalty against juvenile offenders — persons who commit crimes before turning 18 years old. The Government of Pakistan is, additionally, a party to both the United Nations International Covenant on Civil and Political Rights (ICCPR) and Convention on the Rights of the Child (CRC) which categorically prohibits capital punishment for juvenile offenders. However, despite the explicit bar, cases of juvenile offenders such as Aftab Bahadur are far from the exception.
As a result of a criminal justice system that violates international human rights standards at each stage of the judicial system, arrest, investigation, trial, sentencing, and punishment, the death penalty is disproportionately applied to the most vulnerable of Pakistan’s population — the mentally ill, physically disabled, and juvenile offenders. Since the moratorium was lifted, at least six juvenile offenders have been executed despite credible evidence in support of their juvenility.
Pakistan’s failure to protect juvenile offenders from the death penalty since the resumption of executions drew sharp criticism from international actors. In June 2015, four United Nations experts, whilst urging the Government of Pakistan to halt the execution of juvenile offenders, condemned the existence of 'several hundred' juvenile offenders on death row as a violation of its international law obligations. Similarly, in June 2016, the UN Committee on the Rights of the Child urged the Government of Pakistan to stay the executions of all juvenile offenders and reopen all cases where there was even the slightest indication of the minority of the accused at the time of the commission of the alleged offence.
Pakistan enacted the Juvenile Justice System Ordinance (JJSO) in 2000 in order to bring its criminal justice system in conformity with its obligations under the United Nations Convention on the Rights of the Child. In 2018, the JJSO was repealed and replaced by Juvenile Justice System Act (JJSA). The law prohibits executions of juveniles and makes provisions regarding separate courts, trials, and detention centres from judges and lawyers. However, in the 18 years that had passed since the JJSO came into force, it remained virtually ignored in practice. Firstly, the law was enacted without retrospective force – thereby denying its protection to juvenile offenders sentenced to death prior to its enactment in 2000. A Presidential Notification granted a 'special remission' for all juvenile offenders whose death sentences were confirmed prior to the JJSO on the basis of an inquiry into their juvenility. However, such inquiries were seldom conducted and when they were the investigation was replete with incompetence, inefficiency, and violations of human rights standards.
Pakistan has also consistently failed to set up juvenile courts, borstal institutions and provisions for effective legal aid for juveniles as provided under, first the JJSO and now JJSA. In a context marred with low birth registration and a lack of sensitisation of law enforcement and judiciary to juvenile delinquency, a significant number of juvenile offenders fall outside the few institutional safeguards actually implemented in practice. As a result, the juvenile justice system is rarely applied to those it is designed to protect, resulting in a significant number of death sentences being meted out to juvenile offenders. Once sentenced these juvenile offenders are denied effective recourse to appeals and post-conviction reliefs, even in the face of exonerating evidence. All of these aforementioned problems constitute violations of international law and taken together reveals a broken criminal justice system that fails to protect juvenile offenders from the most severe and irreversible form of punishment – the death penalty.
The irreversible nature of the violations mandates that Pakistan reinstate a moratorium of its application on the death penalty and launch an independent investigation into all death row cases particularly those marked by allegations of juvenility. Additionally, in order to prevent future executions of juvenile offenders and to ensure that they are extended the requisite protections under international human rights standards requires a comprehensive reform of its juvenile justice system starting from the determination of age at the time of arrest to the grant of mercy prior to execution.