Executions of child offenders in Pakistan
The decade long blight that was the Musharraf rule had a couple of bright spots. These may not redeem him completely, but they do mitigate his awfulness as a human being: he passed the Women Protection Bill so that the rape victim would not have to face prison if she was unable to provide four witnesses before the court. Numerous women were in prison under Hudood Laws because they had been unable to provide witnesses to their rape.
It was as if Ziaul Haq — another man who is marginally less awful now that he’s dead — thought that the woman being raped should say to the attacker, “If you have to rape me, please do so in front of four people, preferably men.” (Oh and they should also be known to be truthful and trustworthy, so that their testimony would be acceptable in court.)
Musharraf’s Women Protection Bill also declared that anyone marrying an underage person would be charged with statutory rape.
He issued Juvenile Justice System Ordinance (JJSO) in 2000. Enacted in 2001, the ordinance said that death penalty could not be awarded to those who had committed crimes as juveniles. The act called for legal support for child offenders to be offered free of cost by the state. It also ordered the setting up of Juvenile Courts in each district of the county.
But 15 years after the protections offered to children came into effect, child offenders are still being executed in Pakistan.
News reports that came out after the latest child offender Ansar Iqbal was executed in Sargodha mentioned that the court refused to admit evidence that Iqbal was 14 or 15 at the time, because it was “submitted too late”: “The court did not examine Iqbal’s old school records and a new birth certificate issued this year which put his age at 14 and 15 respectively, saying the documents were submitted too late.”
But the court failed to mention why a person who was arrested in 1994 and convicted in 1996 when protection to child offenders against death penalty wasn’t even available, would have submitted evidence to this effect.
Even if the evidence was “submitted too late”, why would you kill a person when there are so many doubts surrounding the incident? He was in prison. If he could’ve run, he would’ve done so in the two decades he spent there.
Imagine being told that the evidence that you could not submit before, because it was no use, you cannot submit now, because it is too late.
Does the court or the judge think that they’re being blamed unfairly for a legacy of issues that was beyond their control?
Good.
Earlier, Shafqat Hussain had been executed for a crime he claimed he was accused of (but did not commit) when he was 15. His “confession”, he maintained till the end, was obtained under torture. Even the Sindh High Court confirmed that the confession was the basis for his conviction and that there was no physical evidence linking him to the crime. His legal counsel did not even bring up the issue of his age as he was “more interested in trying to squeeze money out of his young client than in providing a defence”. Hussain himself didn’t mention it to his lawyer because he did not know that it was important to his case. FIA later conducted an enquiry into the matter which was so flawed the Islamabad High Court declared it prima facie illegal. But the Supreme Court hearing the case said that they could not admit evidence regarding his age because it had been raised “out of time” and that they were “procedurally barred” in this regard.
This may be obvious but for the court to say they can’t overturn the death penalty because it’s not procedure is particularly rich, given their long-standing love affair with the doctrine of necessity. What basis does the doctrine of necessity have in the constitution? Isn’t it, in fact, the exact opposite? It is like saying a law on violence against children does not prohibit beating of little boys if it was delivered by a particularly strong individual, who really, really wanted to beat little boys.
Our courts took a doctrine from the medieval ages whose last major proponent died almost two hundred years ago and used it to justify the actions of dictators. Why do they not follow international conventions that the country is even signatory to such as the Convention on Child Rights of the United Nations, which prohibits death penalty for juveniles? They could follow the example of the US Supreme Court from three decades ago which declared death penalty for children illegal because it is cruel and unusual punishment. They could even try following the country’s own laws rather than citing flimsy grounds.
And talking of “too late”, how is it that the court does not look into why child offenders are not offered legal representation even 15 years after the JJSO? For that matter, why are there no juvenile courts set up in the country as prescribed in the law? Instead the provincial governments have asked the civil or family courts to hear the cases of juvenile offenders.
Aftab Bahadur Masih was 15 when he was arrested and convicted of murder and awarded the death penalty. His co-accused, Ghulam Mustafa, who confessed to his own involvement in the murder later said that he had been tortured into implicating Masih, who, in fact, had nothing to do with murder. His case, however, was tried in a Special Court where protections offered to the accused in regular courts are not available. Rules concerning which evidence can be admitted are lax, and even the process for appeals is severely curtailed.
So, Masih was convicted under rules designed to overlook lapses in procedure but when it came to his appeal, he would’ve been “out of time” and the courts “procedurally barred” from hearing his case. Aftab Bahadur Masih was hanged on June 10, 2015.
Mutabar Khan was executed in June 2006. He was convicted in 1998. His appeals were rejected by the Peshawar High Court and the Supreme Court because his age had not been recorded at trial. The case was especially ridiculous because he had been kept in a juvenile prison for two years after his arrest.
Ali Sher was convicted of a crime he committed as a 13-year-old. He was hanged when he was barely 21 years of age. An appeal to the court that he should not be convicted of a crime he committed as a juvenile was dismissed. Another appeal was filed in the court which said that at the time of the crime in 1993, capital punishment had not even been extended to Provincially Administered Tribal Areas where Sher was from. Therefore, the death penalty could not be awarded to him.
You’d think the courts would be looking for the smallest excuse not to hang a child offender. You would be wrong. Ali Sher was executed in November 2001.
And yet while we keep executing child offenders in judicial decisions that can be highly flawed, it is not the death penalty for child offenders but the Juvenile Justice System Ordinance that hangs by a thread in Pakistan. The Lahore High Court (LHC) struck down the ordinance which had been given legal cover under the 17th amendment. In December 2004, LHC’s bench of Justice Khawaja Mohammad Sharif, Justice Mian Mohammad Najamuz Zaman and Justice Asif Saeed Khan Khosa ruled that the ordinance was unconstitutional, unreasonable and impracticable because it contained “downright absurdities” and it had created a havoc in the country’s criminal justice system. The court even ordered the abolition of juvenile courts, which the law called for, and transfer of all cases pending with them to ordinary courts.
The Supreme Court suspended the LHC’s order in February 2005 saying, “Appeals against the December 6, 2004, high court judgment require consideration”. However, the SC has not heard the case since and the Lahore High Court’s order remains suspended.
One of the judges on the bench that struck down JJSO, Justice Khawaja Mohammad Sharif, later became the Chief Justice of the Lahore High Court. Another one, Justice Asif Saeed Khan Khosa was later awarded “Rule of Law Award” by the Society of American Law Teachers (SALT) as well as an “Award of Honour” which was given to “The Judicial Heroes of Pakistan” by the Commonwealth Judicial Education Institute (CJEI) because he had resigned after Musharraf promulgated emergency in the country in 2007. He was later elevated to the Supreme Court. He is still a justice of the apex court. He recently won widespread admiration for upholding Mumtaz Qadri’s death penalty. Maybe he will someday hear the appeal against his own ruling that he made in 2004.
Courts should be at least half as bold in protecting children as when they are protecting tyrants. Maybe they should try putting in a fraction of the effort they put into not proceeding with Musharraf’s case. Doesn’t Musharraf’s crime carry the same penalty as that of Ansar Iqbal, or Shafqat Hussain, or Aftab Bahadur Masih, or Mutabar Khan, or Ali Sher, or hundreds of other child offenders still on death row?
Maybe our courts are going to follow the constitution in letter and spirit from now on. Maybe they are not going to compromise with tyrants ever again. Maybe democracy will reign supreme forever. But for now, we’d settle for them giving protections to children that the law guarantees.