Daily Times

Execution of mankind is a strict violation of human dignity and this violation reaches at its extreme, when a juvenile below the age of 18 years is handed down a death sentence or executed. The constitution of Pakistan protects the human rights of its citizens. Article 9 of the Constitution has assured the security of the lives of its citizens and no person shall be deprived of life or liberty save in accordance with law. Similarly, article 14 of the constitution has assured the inviolability of dignity of every citizen of Pakistan. These two rights, right to life and right to dignity as mentioned in our constitution are guaranteed even to a person who has been found guilty or sentenced for heinous offences and these two rights are protected under other domestic laws of Pakistan. But the setback is that like 160 countries in the world, Pakistan has enacted legislation prohibiting the sentencing and imposition of the death penalty against juvenile offenders, despite this prohibition, hundreds of suspected juvenile offenders have been sentenced to death by courts in Pakistan. The reason for awarding this brutal punishment to juveniles is very obvious, i.e. lack of implementation of juvenile justice system in Pakistan.

On December 17, 2014, a day after the massacre of more than 140 people including 132 students (children) and nine teachers by terrorists at the Army Public School and College in Peshawar, the Government of Pakistan lifted a six-year de-facto moratorium on the death penalty as a necessary measure to curb terrorism. The resumption of executions initially applied only to individuals convicted of terrorist offences. However, in March 2015, without any public justification, the moratorium was lifted for all those awarded the death penalty under Pakistan’s criminal laws, including for non-terrorism related offences. Since December 2014, the government of Pakistan has executed 515 condemned prisoners, which made Pakistan one of the most prolific executioners in the world and ranked it at number seven in the world in year 2019 in terms of executions, according to ‘Amnesty International Global Report on Death Sentences and Executions 2019’. The 515 executed convicts were tried and awarded capital punishment by criminal courts, anti-terrorism courts and military courts of Pakistan. Out of these 515 executions, only 30 percent were convicted for crimes of terrorism. Thus, the Government’s narrative that executions were reinstated as a necessary measure to curb terrorism, is unjustifiable.

Out of these 515 executions, only 30 percent were convicted for crimes of terrorism. Thus, the Government’s narrative that executions were reinstated as a necessary measure to curb terrorism, is unjustifiable

In February 2017, Justice Project Pakistan released a report entitled ‘Death Row’s Children, Pakistan’s Unlawful Executions of Juvenile Offenders’, claimed that at least 6 juvenile offenders amid those 515 individuals have also been unlawfully executed, despite the existence of credible evidence in favour of their juvenility. This is because they are tried and sentenced as adult offenders and age determination protocols are not exercised in their cases. Claims for determination of their juvenility or any evidence related to proof of their age were not upheld by trial or appellate courts and their mercy petitions were also dismissed by the President of Pakistan. The other reason for executions of these six juveniles was that they were tried and sentenced to death by anti-terrorism courts, whose procedures fail to comply with internationally agreed fair trial standards. The Anti-Terrorism Act 1997 (ATA) provides broad definition of terrorism for offences, which do not qualify under terrorism and this law is granted overriding effect over all laws currently in force in Pakistan. So, courts often interpret the provisions of the ATA as meaning that for terrorism offences under the ATA, the anti-terrorism courts possess exclusive jurisdiction even for juvenile offenders.

Although the Government of Pakistan has consistently maintained that no executions of juvenile offenders have taken place, the lack of implementation of protective safeguards and protocols particularly whilst conducting age determination investigations mean that juvenile offenders continue to be executed. As a result of partial implementation of juvenile justice system and violation of international juvenile justice guidelines/standards at every stage of arrest, investigation, bail, trial, sentencing, detention and rehabilitation, the death penalty is unduly applied to the juvenile offenders in Pakistan.

Currently, there are 33 offences under various laws in Pakistan that are punishable by death sentence, a vast majority of which fail to meet the ‘most serious crimes’ standard under international law. The crimes that fall under ‘most serious crimes’ are intentional killings or attempted killings. According to Justice Project Pakistan’s research, death row population in jails of Pakistan currently stands nearly 4300 individuals, many for offences that are ineligible for capital punishment under international law. Ten percent of the current death row population in prisons consists of those prisoners, who were juvenile at the time of commission of offence and waiting for their execution in future. Every fourth person on death row in the world is a Pakistani citizen. Similarly, every seventh person sentenced to death and every eighth person executed in the world is also a Pakistani citizen.

Since lifting the moratorium on the death penalty, the Government of Pakistan has faced consistent criticism from the international diplomatic community and United Nations on account of its failure to respect international human rights obligations. The UN experts stressed that, “Under Pakistani law and article 6 of ICCPR and article 37(a) of UNCRC, the death penalty cannot be imposed on a juvenile who was under 18 at the time of the crime”.

In May 2016, UN Committee on CRC in its concluding observations on fifth periodic report of Pakistan noted that there are reports of the executions of several individuals for offences committed while under the age of 18 years or where age was contested, as well as a large number of persons currently on death row for crimes committed while under the age of 18, who have limited access to procedures for challenging their sentence on the basis of their age. The CRC Committee gave recommendations that Pakistan must review all cases where there is any symptom that a prisoner sentenced to death might be or have been a juvenile, with a view to either releasing the concerned prisoners or commuting their sentence to prison terms. This should also apply to cases where the crime was committed before the juvenile justice system entry into force. The Committee also recommended that Pakistan should collect and make publicly available the total number of death row prisoners, who were sentenced for crimes they alleged to have committed when they were under the age of 18 years. The number should also include prisoners who raised a plea of juvenility that was subsequently rejected.

On March 13, 2020, a divisional bench of the Lahore High Court gave the landmark judgment on a writ petition filed by Justice Project Pakistan for commutation of a juvenile Muhammad Iqbal’s death sentence to life imprisonment. The high court accepted the petitioner’s plea of juvenility at the time of commission of offence and commuted his death sentence to life imprisonment. In 1998 Iqbal was arrested for committing the murder and robbery in District Mandi Bahauddin, when he was just 17 years old and consequently sentenced to death by anti-terrorism court a year later – despite his juvenility was being proved in the case through ossification test and school leaving certificate. Iqbal spent almost 22 years in jail on death row in unlawful confinement and finally received his legal right of life imprisonment. The high court judgment relied on a relevant presidential notification of 2001, Article 37 of the UN Convention on the Rights of the Child, and Article 6 of the UN International Covenant on Civil and Political Rights. Referring to the provisions of these international conventions and domestic legislation on this subject, the judges rendered the judgement that these provisions impose a clear ban on the infliction of the death penalty on an accused under the age of 18 years. So, in the light of Lahore High Court’s judgement, on 30 June 2020, Iqbal was released from jail after it was established that he has already served a life imprisonment, since Presidential Notification 2001 had commuted his death sentence into life imprisonment.

There are many other juveniles like Iqbal wrongly placed on death row in jails of Pakistan and deserve justice be granted to them by commuting their death sentence to life imprisonment or release them from jails. So, in cases of juveniles, courts should undertake such inquiries of juvenility in accordance with age determination procedures that comply with international age determination standards.

The writer is Islamabad-based lawyer