Commenting on the lack of retrospective force of the Presidential Notification for the Juvenile Justice System Ordinance (JJSO), Mr Umar expressed his “complete shock and horror that a legally binding presidential order is being violated.”
Commissioner, National Commission of Human Rights, Chaudhry Shafique questioned the point of the government ratifying international human rights treaties, if the judiciary was unwilling to implement the obligations contained in them.
Child Rights Commissioner Farzana Bari, parliamentarian Nafisa Khattak, Sharafat Ali of the Ministry of Human Rights, activist Valerie Khan, Director of Conflict Law Centre at the Research Society for International Law Oves Anwar, founder of SPARC, Anees Jillani also spoke at the launch.
Senator Farhatullah Babar while praising the report observed that, the issues highlighted in the report posed an urgent need for to address the low rates of birth registration as well as implementing age determination protocols to protect juvenile offenders. He also called for reducing the number of crimes punishable by death in Pakistan (currently 27). The Member of the Senate Committee on Human Rights said that while Pakistan is a security-driven society, it needs to strive to become a welfare-driven society, as guided by Article 38. Sen. Babar also advised that the findings of the report be shared with parliamentarians to sensitize them to the cause of human rights.
Like 160 countries in the world, Pakistan has enacted legislation, specifically the JJSO, prohibiting the sentencing and imposition of the death penalty against juvenile offenders – persons who commit crimes before turning eighteen years of age.
However, since its enactment, the JJSO has been marred by a lack of implementation and political will while successive governments have failed to fulfil its provisions.
JPP has analyzed 140 reported cases, since the beginning of the operation of the JJSO in 2000 to 2016, wherein a plea of juvenility had been raised by an accused person. Four different types of evidence were taken into account, including a statement under S. 342 of the Criminal Penal Code, medical evidence, birth certificates and school leaving certificates, noting where judges had placed reliance on each, and where they had rejected each.
JPP’s analysis has found that due to a lack of age determination protocols in place, there is no consistent pattern followed by judges in adjudicating pleas of juvenility. Contrary to international standards, the benefit of doubt is never accorded to the accused person, and judges inevitably rely upon whichever evidence disfavours the accused.
Moreover, no presumption of correctness is accorded to NADRA-issued identity documents. JPP’s report finds that over 60 percent of government-issued identity documents were deemed by courts to be unreliable, placing the defendant in an impossible position to prove their age.
More worrying still, is the lack of clarity on whether the JJSO applies to the country’s anti-terrorism legislation. Under Section 32, the Anti-Terrorism Act is granted overriding effect over all laws currently in force. In 2006, the Sindh High Court ruled that the “ATC would not be bound by the rules of procedures required for juvenile courts.” If a juvenile offender is tried under the ATA (and they may very well be, given the broad definition of terrorism in the legislation), the state of Pakistan will knowingly be sending juveniles to the gallows.
Despite these flagrant violations of Pakistan’s international legal commitments, state representatives insist the juvenile offenders are being accorded their rights. In May 2016, the Pakistan delegation told the U.N. Committee on the Rights of the Child that “no child has been awarded death penalty and no defendant is currently on death row.”
However, as revealed in the report, the executions of Aftab Bahadur, Shafqat Hussain, Ansar Iqbal, Muhammad Sarfraz, Faisal Mehmood and Muhammad Amin – all juveniles at the time of arrest – proves this claim to be blatantly false.
Zafarullah Khan, Special Assistant to the Prime Minister on Law stated at the Pakistan’s fifth periodic review at the UNCRC that “minors were tried under the Special Court Law, separately from majors.” Yet, nearly 17 years after the JJSO was promulgated, the government has failed to install separate juvenile courts.
Sarah Belal, Executive Director of JPP adds: The juvenile justice system does not do our children any good, if it appears to be rigged against the very people it seeks to protect. This report, and its findings underscore the urgent need to pass the pending Juvenile Justice System Bill so fewer minors will face the gallows.
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