The following is an excerpt from Justice Project Pakistan’s (JPP) book, The Death Penalty in Pakistan: A Critical Review, launched on July 11, 2019 (Today) in Islamabad. A culmination of 10 years of JPP’s work, the book documents the many ways in which Pakistan's application of the death penalty intersects with legal, social and political realities.
It focuses on how capital punishment impacts some of the most vulnerable populations: juveniles, the mentally ill, persons with physical disabilities, low-wage migrant workers imprisoned in foreign jails and the working class.
Relying on public records for multiple JPP clients sentenced to death, nearly a decade of experience in the field, as well as extensive experience with legislation and advocacy, this book tracks the many junctures at which violations occur, from arrest to sentencing to execution
Aftab Bahadur was arrested at the age of 15 for the murder of a woman and her two children. Aftab protested his innocence to the very end. The only eyewitness who testified against Aftab recanted his statement by claiming that he had been coerced by the police to provide his damning testimony. In fact, he admitted, that Aftab had not even been present at the scene of the crime. The Supreme Court of Pakistan, however, refused to consider the exculpatory evidence stating that a fresh appeal was untimely. Aftab Bahadur therefore, marched to the gallows at the age of 38 after having spent over 22 years on Pakistan’s death row.
He was executed on 10 June 2015.
Like 160 countries in the world, Pakistan has enacted legislation prohibiting the sentencing and imposition of the death penalty against juvenile offenders — persons who commit crimes before turning 18 years old. The Government of Pakistan is, additionally, a party to both the United Nations International Covenant on Civil and Political Rights (ICCPR) and Convention on the Rights of the Child (CRC) which categorically prohibits capital punishment for juvenile offenders. However, despite the explicit bar, cases of juvenile offenders such as Aftab Bahadur are far from the exception.
As a result of a criminal justice system that violates international human rights standards at each stage of the judicial system, arrest, investigation, trial, sentencing, and punishment, the death penalty is disproportionately applied to the most vulnerable of Pakistan’s population — the mentally ill, physically disabled, and juvenile offenders. Since the moratorium was lifted, at least six juvenile offenders have been executed despite credible evidence in support of their juvenility.
Pakistan’s failure to protect juvenile offenders from the death penalty since the resumption of executions drew sharp criticism from international actors. In June 2015, four United Nations experts, whilst urging the Government of Pakistan to halt the execution of juvenile offenders, condemned the existence of 'several hundred' juvenile offenders on death row as a violation of its international law obligations. Similarly, in June 2016, the UN Committee on the Rights of the Child urged the Government of Pakistan to stay the executions of all juvenile offenders and reopen all cases where there was even the slightest indication of the minority of the accused at the time of the commission of the alleged offence.
Pakistan enacted the Juvenile Justice System Ordinance (JJSO) in 2000 in order to bring its criminal justice system in conformity with its obligations under the United Nations Convention on the Rights of the Child. In 2018, the JJSO was repealed and replaced by Juvenile Justice System Act (JJSA). The law prohibits executions of juveniles and makes provisions regarding separate courts, trials, and detention centres from judges and lawyers. However, in the 18 years that had passed since the JJSO came into force, it remained virtually ignored in practice. Firstly, the law was enacted without retrospective force – thereby denying its protection to juvenile offenders sentenced to death prior to its enactment in 2000. A Presidential Notification granted a 'special remission' for all juvenile offenders whose death sentences were confirmed prior to the JJSO on the basis of an inquiry into their juvenility. However, such inquiries were seldom conducted and when they were the investigation was replete with incompetence, inefficiency, and violations of human rights standards.
Pakistan has also consistently failed to set up juvenile courts, borstal institutions and provisions for effective legal aid for juveniles as provided under, first the JJSO and now JJSA. In a context marred with low birth registration and a lack of sensitisation of law enforcement and judiciary to juvenile delinquency, a significant number of juvenile offenders fall outside the few institutional safeguards actually implemented in practice. As a result, the juvenile justice system is rarely applied to those it is designed to protect, resulting in a significant number of death sentences being meted out to juvenile offenders. Once sentenced these juvenile offenders are denied effective recourse to appeals and post-conviction reliefs, even in the face of exonerating evidence. All of these aforementioned problems constitute violations of international law and taken together reveals a broken criminal justice system that fails to protect juvenile offenders from the most severe and irreversible form of punishment – the death penalty.
The irreversible nature of the violations mandates that Pakistan reinstate a moratorium of its application on the death penalty and launch an independent investigation into all death row cases particularly those marked by allegations of juvenility. Additionally, in order to prevent future executions of juvenile offenders and to ensure that they are extended the requisite protections under international human rights standards requires a comprehensive reform of its juvenile justice system starting from the determination of age at the time of arrest to the grant of mercy prior to execution.
Colonial India (1858-1945)
As the Mughal Empire fell, the British took control and established the Indian subcontinent as its colony until both Pakistan and India gained independence in 1947. Most of the laws and structures currently in place in Pakistan including those related to criminal justice and the legal system date to colonial times. While the British altered the modes of carrying out death sentences and made hanging the norm,19 they also made it so that capital punishment was administered more readily and frequently. Whereas the Mughals did not have many formal prison systems, the building of new and improved prisons marked the entry of the British into the Indian subcontinent.20In her book Prisoner Voices from Death Row, Reena Mary George indicates, ‘Prisons continue to be located and structured more or less as they were in colonial times. Any change that has been made has been incorporated somewhat clumsily into the old system that basically served the triple colonial aims of order, economy and efficiency’.21
The first formal placing of capital punishment in the legal system, though, came when the Governor-General of the India Council enacted the Indian Penal Code in 1860.22 The law, drafted by a group of Britishers making up the Law Commission, did not attempt to integrate any traditional Indian legal systems and instead, as the historian David Skuy notes, ‘the entire codification practice represented the transplantation of English law to India, complete with lawyers and judges’.23 Since English law at the time was not itself uniform, this was a first attempt to create such a standard body of law. The current Code of Criminal Procedure was introduced in 1898 but draws from the very first code of 1861 that followed the 1857 Indian rebellion.24 Its intent was to control Indians. Some of the provisions in these laws are termed as ‘draconian or black laws’.25
In fact, these codes made the death penalty the automatic punishment for murder with life imprisonment as the exception rather than vice versa.26 The primary justification of the death penalty itself today stems from the time [the parts that now constitute] Pakistan was still a colony, namely ‘the belief that common people can be made to obey the law only through fear instilled by harsh punishment’.27 This belief persists despite reputable empirical evidence to the contrary and influences public opinion on the death penalty to this day.
Along with increasing the number of convicts and prisons and instating harsh laws, the British increased the number and frequency of executions in the country significantly. In fact, by the 1920s, fearing that they were losing their grip on the Empire, the British executed an average of 3 people every day.28According to one scholar, Anderson, ‘capital punishment was used extensively in colonial India by the British Empire to control its colonial subjects and reinforce its sovereignty’, particularly ‘given to the lower caste and class’.29 This discriminatory trend persists to this day such that a vast majority of those on death row are from marginalised communities with poor socio-economic backgrounds. Time and again, scholars indicate that executions helped ‘consolidate imperial rule and eradicate resistance against it’.30 These often took the form of public spectacles to dissuade dissenters and others from rising up. One example is the blowing up of Indian soldiers by cannons for mutiny.
These public displays, in fact, sometimes drew from the harsh means of executions used by the Mughals before them. Other than these public spectacles, hangings for common crimes from murder to theft to refusal to work were also used to teach the colonised a ‘lesson’.31 While the actual number of executions was roughly the same in Britain and India, the difference was that these deaths were public and directly a way to assert dominance and repress insubordination to curb challenges to the British Raj. And though there are multiple cases where the British commuted capital punishment, they often did this in face of a worse punishment of transportation and indentured servitude elsewhere, believing that forcing Indians to move would severely affect their religious practices, funerary rights, and caste structures, and thereby constitute a form of social death.32Often, the British would use the bodies of dead prisoners for research – medical or otherwise. These routine post-mortems became one of the sets of grievances that led to the Great Indian Rebellion of 1857.33
At the same time, the British put in place numerous due process guarantees. As part of several reform movements in 1837, the Colonial Office sought to reconcile law on capital punishment in England with that in the colonies, but inconsistencies remained.34 As Britain sought to prove its ‘civilizing’ mission, the push for reforms intensified, but in many ways, this did not reach the colonies they were intended to benefit and the ‘theater of execution’ continued in the Indian subcontinent.35 When makeshift gallows were proved prone to botched executions, the British, under heavy criticism, set up new and improved ones. However, problems persisted: ‘the drop was often too short, and criminals were on occasion hanged weighed down with heavy fetters on their legs’.36
The death penalty in England itself was inherently problematic. Seeing its rise in the industrial era, a sentence of death was the penalty for hundreds of offences from pickpocketing to cutting down a tree to being out at night with a black face to rape and murder.37 It was only after sustained activism that the death penalty was narrowed down by 1861 from 200 offences to 4.
