Jul 21 2016 (Dawn, Pakistan) – Like 73pc of Pakistan’s population, Ansar Iqbal’s birth had never been registered. And like most juvenile defendants in Pakistan, he was erroneously charged and tried as a 23-year-old adult because the police thought that’s how old he looked.
During Ansar’s trial, his lawyer produced government-issued birth records demonstrating his juvenility. The courts however, chose instead to rely upon the police’s appraisal of his physical appearance. In 2015, he was issued a birth certificate by the National Database and Registration Authority that unequivocally confirmed his plea of juvenility. Despite this, the Supreme Court of Pakistan refused to consider the new evidence placed before it. “It was raised out of time” and so, Ansar’s review petition was rejected.
An arbitrary visual assessment had sent Ansar Iqbal on death row for 23 years, and ultimately to the gallows in September last year. He was 38 years old.
A flawed juvenile justice system is rigged against those it seeks to protect.
Sentencing juveniles to death is prohibited under the Juvenile Justice System Ordinance 2000 and under the UN Convention on the Rights of the Child. This has not counted for much since the six-year moratorium on the death penalty was lifted in December 2014. Pakistan has knowingly executed at least six juvenile offenders in the face of credible evidence supporting their minority. In June 2016, the UN Committee on the Rights of the Child in its concluding observations on Pakistan’s fifth periodic report noted that it is “seriously alarmed at the reports of execution of several individuals for offences committed while under the age of 18 years”. A study by the Justice Project Pakistan and Reprieve discovered that as many as 10pc of Pakistan’s 8,000 strong death row were juveniles at the time the alleged crime took place.
That’s 800 children convicted as adults.
Almost 46pc of Pakistan’s population has no form of official registration. At the time of arrest, it is virtually impossible to prove their age. Police, in the absence of documentary proof, arbitrarily record an age that is above 18 years to avoid applying protective procedural safeguards for juveniles during detention. Pakistan has consistently failed in its obligation to effectively investigate juvenility claims.
If a plea of juvenility is raised at the trial, the courts place the burden entirely upon the defendant. Not only is this difficult to dispel, given the dismal birth registration rates, it is also a violation of international law principles. The UN Committee on the Rights of the Child has recognised the need for a medical or social investigation in the absence of proof of age. And even if there is conflicting or inconclusive evidence “the child shall have the right to the rule of the benefit of the doubt”.
Where government documents are presented by defendants, courts often dismiss these as unreliable. No further investigation into the prisoner’s social history to determine his age is conducted. If there is a disparity in the available evidence, the burden of doubt is almost never granted to the juvenile.
The Juvenile Justice System Ordinance provides limited guidance on how to determine age. It only states that if a question of juvenility arises during a criminal proceeding, the court must “record a finding such inquiry which shall include a medical report for determination of the age of the child”. This clearly does not contain sufficient detail to ensure that determinations of age are conducted in accordance with international standards.
The lack of clear and comprehensive age determination protocols has led to radically different interpretations by the courts. In the cases of ‘Amanullah vs the state’ and ‘Majid Khan vs the state’, the high courts held that a birth certificate should always be preferred over medical examination. However, in ‘Ghulam Rasool vs the state’ and ‘Majid Khan vs the state’ medical tests are given clear precedence.
Similarly, in ‘Zafar Hussain vs Ayyaz Ahmed’, the Lahore High Court held that the onus to prove juvenility lies upon the defendant and no benefit of doubt should be given to him whereas in ‘Saddam vs state’, the Sindh High Court stated that the provisions of the JJSO should be construed liberally and all benefit of doubt regarding age should go to the accused.
It is imperative that the government of Pakistan develop age determination mechanisms for juvenile offenders in order to fulfil its international human rights obligations and address the manifold human rights violations inherent under its criminal justice system. The National Commission on Human Rights and the newly appointed child rights commissioners serve as the ideal institutions to develop and ensure implementation of age determination mechanisms at each stage of the arrest, trial and appeal.
It has been almost one year since Ansar was executed. How many others will we lose before we reform our juvenile justice institutions so that they can fulfil the objectives they were designed to serve?
The writer is a human rights lawyer working with the Justice Project Pakistan.
Published in Dawn, July 21st, 2016
This story was originally published by Dawn, Pakistan