Why over 800 child offenders on death row?
From drawing rooms to social media forums, Pakistan recently debated at length whether Shafqat Hussain was a minor when convicted of the alleged criminal offences and whether he should receive the capital punishment like the many terrorists facing the death sentence at the moment.
A recent report by Reprieve and Justice Project Pakistan tells us that there could be as many as 800 other child offenders on death row in Pakistan. In Shafqat’s case, the execution of his death sentence has been delayed for another 30 days and a committee formed to ascertain his age at the time of the offence. It is interesting to note that Shafqat was originally convicted for murder by the trial court but the High Court overturned the same in 2007 and now he faces death only for the offence of “kidnapping for ransom” under Section 6(2)(e) of the Anti-Terrorism Act of 1997. Not many seem to realise this position and that it is because of the ‘terrorist’ nature of Shafqat’s alleged offence that he faced the death row earlier this year in view of the (partial) lifting of the moratorium by Pakistan.
As of 03 March 2015, Pakistan has lifted the moratorium on death penalty across the board as long as all legal avenues and options have been exhausted and mercy petitions have been rejected by the president. Accordingly, it is likely that many child offenders could potentially face the capital punishment irrespective of the nature of their alleged offences as long as they have been convicted of a crime punishable by death.
There is divided opinion in Pakistan on whether we should continue to be counted amongst states that still have capital punishment and whether death penalty should be restricted to cases where the ‘terrorist’ nature of the offence is beyond doubt
There is divided opinion in Pakistan on whether we should continue to be counted amongst states that still have capital punishment and whether death penalty should be restricted to cases where the ‘terrorist’ nature of the offence is beyond doubt. However, there should be no confusion regarding our position in relation to the non-applicability of capital punishment in the case of minors. This is not my personal opinion or the position of a segment of our civil society; it is the position of our country as reflected by Pakistan’s ratification of the Convention on the Rights of the Child (CRC), the International Covenant on Civil and Political Rights (ICCPR) and the promulgation of the Juvenile Justice System Ordinance 2000.
Pakistan ratified the CRC on 12 Nov 1990 and Article 37 (a) of the CRC states that state parties shall ensure that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age”.
Similarly, Pakistan ratified the ICCPR on 23 June 2010 and Article 6 (5) of the ICCPR states that “sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women”.
Moreover, Juvenile Justice System Ordinance 2000 covers orders that shall not be passed with respect to a child, and Article 12 (a) states that “no child shall be awarded punishment of death…”.
It is also worth pointing out that the Pakistan Penal Code states in section 82 that “nothing is an offence which is done by a child under seven years of age” hence establishing the minimum age of criminal responsibility. Section 83 of the Penal Code goes on to state that between seven and twelve years a child can only commit an offence when he has attained sufficient maturity of understanding to judge of the nature and the consequences of his conduct.
Therefore, if there is a clear state position that minors can’t be given death penalty then why do we have as many as 800 child offenders, as per the report released by Reprieve and Justice Project Pakistan, on death row?
The problem, in my opinion, is that of lack of awareness, incompetency and perhaps even professional negligence.
It is not just a matter of the lack of awareness among alleged child offenders and their guardians regarding the legal position relating to trials involving minors but also a grave reflection of the lack of proper legal representation by their lawyers
It is not just a matter of the lack of awareness among alleged child offenders and their guardians regarding the legal position relating to trials involving minors but also a grave reflection of the lack of proper legal representation by their lawyers (whether appointed by them or the state) and ignorance (whether negligent or otherwise) of the alleged child offender’s rights by the prosecuting authorities and the trial courts. If the report published by Reprieve and Justice Project Pakistan is even partially correct, someone should investigate how we ended up in a situation where we might have to face, to quote Fatima Bhutto, a ‘moral catastrophe’ potentially over 800 times.
In recent judgments, Pakistan’s Supreme Court has laid down clear principles which the courts should consider while deciding the question of age. The Supreme Court has pointed out that the plea of minority by an accused is a special plea intended to take the accused off the noose and onus is thus on him (the accused) to prove the same and that such a plea of minority must be taken by the accused at the earliest possible opportunity, preferably during the course of investigation so that the requisite evidence about the age of the accused could also be properly collected and any delayed claim on the said account should be met by adverse inferences. Whenever such a question of age is raised or arises at the trial, the courts should not deal with the same in a cursory or in a slip-shod manner but must proceed to hold an inquiry in the matter as commanded by the provisions of section 7 of the Juvenile Justice System Ordinance, including medical examination of the accused for the purpose.
Therefore, in legal terms, the burden of establishing the age lies with the accused child offender. However, on the same basis that a minor should not be sentenced to death even in the case of crimes punishable by death due to his young age, this should not be seen as the sole responsibility of the child offender but that of all the adults involved in prosecuting and defending such an alleged offender. On the other hand, all those who assist criminals in misusing this legal protection for minors, by falsifying records and hence creating difficulties for genuine cases as well, should held for perjury and receive strict punishment.
It should be the moral (and perhaps legal) responsibility of the defence and prosecution lawyers and even the trial court judges to prevent miscarriages of justice and inform the child offenders of their rights where it is evident that the alleged offender is a minor. Whether Pakistan should continue to have death penalty for certain offences is another debate, however, until such time that the law of the land provides for capital punishment and also places limitations in relation to its application in the case of minors, all necessary steps should be taken to uphold Pakistan’s international and domestic commitments in this respect.
