[child-rights] Pakistan: Death penalty for juveniles reintroduced

AMNESTY INTERNATIONAL-PRESS RELEASE
AI Index: ASA 33/025/2004
9 December 2004

The recent decision by the Lahore High Court that the Juvenile Justice
System Ordinance (JJSO) be revoked so that children can once again be
sentenced to death, is a retrograde step which flies in the face of the
worldwide movement towards the abolition of the death penalty for
juveniles.

"The government of Pakistan must abide by its commitments under the
Convention on the Rights of the Child and take immediate action to appeal
to the Supreme Court to review the judgment and stay its implementation,"
Amnesty International said.

A full bench of the Lahore High Court on 6 December 2004 revoked the JJSO,
reportedly finding it "unreasonable, unconstitutional and impracticable".
The High Court decision means that juvenile courts will be abolished and
children will once again be tried in the same system as adults and can be
sentenced to death.  Convictions of juveniles who were spared the death
penalty while the JJSO was in force between 2000 and December 2004, will
not be affected by this judgement but cases pending against juveniles in
juvenile courts will be transferred to regular courts.


Background

Implementing obligations under the CRC which Pakistan ratified in 1990,
President Pervez Musharraf on 1 July 2000 promulgated the JJSO which
prescribes trials of juveniles separate from adult accused and prohibits
the imposition of the death penalty on anyone who has not attained the age
of 18 years at the time of the alleged offence. In December 2001,
following a meeting with Amnesty International Secrary General Irene Khan,
President Musharraf commuted the death penalty of all those juveniles who
had been sentenced to death before July 2000.

Implementing the JJSO has been slow; the setting up of juvenile courts
took time and police and many judges of the lower judiciary remained
unaware of its provisions.  While the number of juveniles sentenced to
death declined, such cases continued to be reported. In 2003, two Afghan
refugee boys were sentenced to death in Quetta.  Ziauddin, a handicapped
boy was 13 and Abdul Qadir was 16 at the time of a murder alleged to have
been committed by them. They are held in a small cell in Much Jail,
Balochistan, together with six adult men sentenced to death, most of them
for murder. The safety and physical integrity of the boys are a matter of
concern for Amnesty International. The Juvenile Justice System Ordinance
which came into force in July 2000, abolished the death penalty for people
under 18 at the time of the offence, in most parts of the country.
However, the Ordinance was not extended to the Provincially and Federally
Administered Tribal Areas in the north and west. One young man, Sher Ali,
was executed in the Provincially Administered Tribal Area in November 2001
for a murder committed in 1993 when he was 13 years old. To Amnesty
International's knowledge, no other juvenile has been executed in Pakistan
since 1997.

Only in October 2004, Amnesty International welcomed the extension of the
JJSO to the The Provincially Administered Tribal Areas (PATA). Federally
Administered Tribal Areas (FATA), the Northern Areas and Azad Jammu and
Kashmir remained outside its ambit.

The commutation order of December 2001 remained only partially
implemented, partly on account of difficulties in determining the age of
the juveniles in the absence of adequate documentation.

The judgement of 6 December 2004 of the Lahore High Court arose from the
petiton filed by Farooq Naqvi, whose son had been sodomized and burned
alive by several young men including a juvenile who was sentenced to life
imprisonment. Farooq Naqvi believed that the juvenile should have been
sentenced to death as well and had been unduly protected by the JJSO.

The Lahore High Court judgment stated that legal provisions existing
before the promulgation of the JJSO were adequate to protect juveniles and
that courts were sufficiently sensitive to the needs of juvenile offenders
which rendered the JJSO superfluous. It also stated that the ban on the
death penalty had led to adults instigating juveniles to carry out capital
offences on their behalf in the knowledge that they would be treated
leniently under the JJSO. This it said, had led to an increase in the
crime rate. Moreover, the JJSO had encouraged corruption on a large scale
as families of accused had procured fake birth, school and medical
certificates to establish that the accused were juveniles.

The judgment further challenged the definition of a juvenile as a person
below 18 years, saying this was arbitrary. Social, economic, climatic and
dietary factors in Pakistan, it said, accelerated maturity. Laws derived
from Islamic understanding link majority to the attainment of puberty and
differentiate between male and female ages of majority. The judgement
moreover held that the preferential treatment of juveniles violates the
constitutional guarantee of equality before the law and equal protection
of the law. It held that "what is relevant is the capacity of an accused
person to understand the nature and consequence of his conduct and if an
accused is found of sufficient understanding then no special treatment is
warranted by the law."

The judgment also said that in practical terms trying a juvenile
separately from an adult presented diffuculties as juvenile courts and
courts trying adults had on occasion reached different conclusions.





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