Children in many countries continue to be sentenced to the death penalty and life imprisonment, often under outdated colonial laws and in violation of their rights under the Convention on the Rights of the Child. In the fifth blog of our series for the World Congress on Justice with Children, Sarmad Ali discusses research undertaken by Legal Awareness Watch (LAW) Pakistan to understand the situation of children in prison facing these most severe penalties.
Introduction
The issue of children detained in prisons across Pakistan facing charges punishable by the death penalty and life imprisonment has always been the subject of scrutiny for the international community and rights defenders around the world. However, a lack of official, regularly updated, publicly available data means it remains unclear exactly how many children are impacted, and even how many children are in prison in Pakistan (under-trial and convicted). For example, on 1st December 2020, the Federal Government stated that 618 children were housed in prisons across Pakistan. However, procedures for determining age remain wholly inadequate in many prisons, owing to severe lack of funding and resources, so it is difficult to ascertain the true number of children deprived of their liberty.
In order to have a clearer understanding of the number of children in prison in Pakistan that are facing and/or likely to be sentenced to the death penalty and life imprisonment, our NGO Legal Awareness Watch Pakistan (LAW) decided to conduct a research survey entitled “Tracing of Children/Juveniles Those Facing the Death Penalty, and Life Imprisonment”.
There are 106 prisons in Pakistan under the responsibility of the Ministry of Interior, which are subordinately controlled and administered by the Home Department in each of the four provinces of Pakistan (Punjab, Sindh, Kyber PaktunKhaw, and Balochistan). The research conducted by LAW Pakistan targeted a total of 20 prisons over two years: 10 prisons in Volume I in 2020 (5 each from Punjab and Sindh provinces) and the same number of prisons from each province in Volume II in 2021.
Beyond examining the theoretical aspects, our findings and affirmations are based on tangible current facts that we monitored within the prisons. The following paragraphs set out some of the most salient data identified in Volume I (2020) and II (2021).
Volume I: We identified a total of 87 children then facing and/or likely to be sentenced to the death penalty or life imprisonment under the Pakistan Penal Code 1860. This number includes children who had been treated as adults by the police/investigation agency that failed to determine their age in accordance with Police Rules 1934, and Criminal Code of Procedure 1890. Of the 87 children, 71 were identified in Punjab (all boys) and 16 in Sindh, including 3 girls.
Volume II: We identified 42 children (21 in each province) which, coupled with those identified in Volume I amounts to a total 129 children possibly at risk of the death penalty or life imprisonment. Of the total 129 children, 5 were sentenced in Punjab and 4 in Sindh. However, 87 children were under trial in Punjab and 32 in Sindh – meaning they were not yet convicted of any crime and should be presumed innocent.
Trends identified in the research
Age determination of children: The children facing the death penalty or life imprisonment identified in the research fall in the age scale of 14 to 17/18 years old. However, owing to inadequate age determination procedures in the criminal justice system, anybody could be considered an adult and some children (under 18 years of age) had been considered and treated as adults. We underlined the importance of ensuring that appropriate age determination by the police/investigation agency should be mandatory, to curtail the arbitrary power and discretion of the police and other actors of the criminal justice system that rely solely on how old the individual looks. Rather, evidence of a person’s age should be sought from the individual, their guardian or others, and considered during the investigation.
Probation/social welfare officers: Under Section 5 of the Juvenile Justice System Act 2018 (JJSA) the police/investigation officer must inform the concerned probation/social welfare officer, as well as the child’s guardian, about the arrest of a child. However, of 87 cases that we assessed in Punjab, we found that a probation/social welfare officer had only been involved in the judicial proceedings in one single case, and not in any cases in Sindh.
In response to this finding, The Punjab Probation and Parole Service Department stated that this “omission on part of the police/investigation agency has rendered juvenile justice system of Pakistan ineffective and unworkable.” In line with our observation and findings, it has been said that the social welfare system across Punjab, Sindh and other parts of Pakistan lacks ‘proactive initiative taking capacity’, which might be due to a lack of capacity building training workshops and/or awareness on child justice issues and the JJSA. Thus, both the police/investigation agency and the social welfare system have both contributed to anomalies in the child justice system, which highlights the need for training and capacity building among social welfare officers, in line with international norms.
Children and blasphemy: We identified a child in Punjab who was facing blasphemy charges under Article 295 B of the Penal Code 1860. He was arrested on charges of blasphemy in 2020 and remained in prison without a fair trial.
Drug trafficking: We identified 2 children in Volume II (1 in each province) facing drug trafficking charges under section 9-C of Control of Narcotics Substances Act 1997 (CNSA), suggesting that children in such cases had been used to sell, carry, or transport drugs. “Drug lords” across Pakistan sometimes induct children into the illegal drug trade, knowing that children – if arrested and determined to be under 18 years of age – would not be sentenced to the death penalty by the courts.
Very serious charges: In Volume II across Punjab, we noted that most children identified in the research faced charges of murder under section 302 and rape under section 376 of Penal Code 1860: 14 children faced charges of murder and 4 of rape in Punjab, while 11 faced charges of murder and 2 of rape in Sindh. Under such charges, they are precluded from accessing bail. Moreover, based on our findings and direct interaction with the children involved, a trend was identified across both provinces whereby children were either used as tools or prompted by adults (often co-accused in the case) to commit these offences. For example, one boy we met claimed that he was instigated by his father to kill his mother. It is widely acknowledged that children – due to their youth and developmental stage – do not have sufficient mental propensity to realize the full consequences of their actions; thus, studies found that they could be easily instigated and led by adults in line with their criminal intent.
First offences: We noted that the children detained in prisons that we identified in the research were there as the result of a first offence, having no prior history of offending. Most also had an adult or adults as their co-accused – as described above, this suggests that children are generally used as tools by adults to commit criminal offences on their behest.
Mental health: We identified a child who was facing trial and had been indicted, despite his mental health condition, and was later transferred to a mental health hospital following a medical report prepared at the direction of the trial court. Here we submitted that during the investigation, the police/investigation agency must seek a medical report/medical health condition from the concerned hospital before admitting a child or even an adult to judicial custody; they should instead be transferred to a mental health facility upon arrest or when found to be mentally unwell during the investigation. It is unfortunately likely that many more similar cases could be ongoing across Punjab and Sindh of children in prisons with unidentified or untreated mental health issues.
Conclusion In culmination, LAW Pakistan has called for the JJSA 2018 to be implemented at all levels of the criminal justice system of Pakistan in accordance with international law, particularly the Convention on the Rights of the Child which Pakistan adopted in 1990 and paying heed to the interpretation of the Convention by the UN Committee of the Rights of Children, particularly General Comment No. 10 of 2007.
Based upon our findings and observations, it is suggested that the police/investigation agencies and probation departments of all four provinces of Pakistan should be given capacity building trainings and awareness-raising advocacy on the application of the JJSA, as well as on theoretical essentials of child justice based on local and international standards. The police and other investigation agencies must be taught at their departments that children, even if apprehended in cases of a very serious nature, are often victims themselves, as “even a dangerous child is a victim”.
Similarly, sending individuals and children to prison would not solve social menaces of Pakistan. Pakistan inherited its prison system from British-India when it was introduced to detain freedom fighters combating British imperialism in the subcontinent. Over time, the concept and purpose of the system has changed and now prisons are meant for rehabilitation, to allow people convicted of a crime to reform their lives. Not only children but all individuals charged or sentenced should be given a second chance to reform themselves. Currently, prisons across Pakistan are managed in accordance with the Pakistan Jail Manual 1978, and even Borstal institutions in Punjab are staffed by uniformed police officers. A less punitive and more child-friendly environment would facilitate children’s rehabilitation far more effectively.
The introduction of JJSA in Pakistan aimed to promote rehabilitation of children in conflict with law, it provided a separate justice system for children which involves a comprehensive role of social welfare officers, observation homes and rehabilitation centers. In our view, the mere introduction of Munda Khanna centers (slang for a child barracks in an ordinary prison) would not serve the purpose of rehabilitation, as they remain a part of ordinary prisons run and controlled by uniformed police officers under the supervision of the Home Department. Borstal institutions introduced in Punjab, and correctional homes in Sindh are also run as prisons.
LAW Pakistan hopes that by raising awareness of the situation of children facing the most severe penalties in prison, we can promote reforms that improve age determination, treatment, and conditions for children in prison, and opportunities for rehabilitation in prison and release, instead of making children more desperate and hardened by the system.
*The writer is a lawyer specializing in Criminal Law. started his career in legal practice specializing in Criminal Law. Since 2013, he has been the Executive Director of the nonprofit organization, Legal Awareness Watch (LAW) Pakistan, which provides pro-bono legal assistance and conducts awareness-raising advocacy sessions, forums and training workshops for capacity building of stakeholders across Pakistan on the abolition of the death penalty and life imprisonment without the prospect of parole for all individuals, particularly children and women. He holds a holds an LLM from Northumbria University, UK, and is a regular contributor to various international and national newspapers.
November 13, 2021
The viewpoints expressed by the authors do not necessarily reflect the opinions, viewpoints and editorial policies of Aequitas Review.
