PAKISTAN: Legality of inhuman sentencing

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Death penalty

The Juvenile Justice System Ordinance states in section 12: “Notwithstanding anything to the contrary contained in any law for the time being in force no child shall be (a) awarded punishment of death....” The prohibition applies to persons under 18 at the time of commission of offence.1 However, the provisions in the JJSO are “in addition to and not in derogation of, any other law for the time in force”,2 and children are liable to the death penalty under other laws.

Child offenders may be tried in special courts under the Anti-Terrorism Act and the Control of Narcotic Substances Act, both of which provide for the death penalty.3 In August 2009, the Supreme Court reportedly suspended an order passed by the Lahore High Court under which death sentences would not be imposed on women and juveniles in narcotics cases,4 but we have no further information.

Child offenders may be sentenced to death for hadd offences. The Offence of Zina (Enforcement of Hudood) Ordinance punishes zina (unlawful sexual intercourse) with stoning to death for males and females.5 The provision which stated that the Ordinance overrides all other laws was repealed by the Protection of Women (Criminal Laws Amndment) Act 2006,6 but on 21 December 2010, the Federal Shariat Court declared this repeal unconstitutional.7 The Offences Against Property (Enforcement of Hudood) Ordinance was not amended in 2006, and explicitly overrides other laws.8 It provides for capital punishment for the offence of haraabah (threatening or hurting another person to obtain property) which results in murder.9 The Penal Code prohibits the sentence of death as qisa (retribution) for minors.10

The Frontier Crimes Regulation in force in FATA does not provide for capital punishment.

Corporal punishment

The Juvenile Justice System Ordinance states that no child may be given corporal punishment while in custody;11 whether this applies to all court ordered whipping is unclear though it is reportedly interpreted as prohibiting corporal punishment as a sentence of the courts.12 The Abolition of the Punishment of Whipping Act enacted in 1996 prohibits whipping as a sentence under any law except with regard to hadd offences.13

Child offenders may be sentenced to corporal punishment for hadd offences. The Offence of Qazf (Enforcement of Hadd) Ordinance punishes qazf (false accusation of zina) with 80 “stripes”.14 The Offence of Zina (Enforcement of Hudood) Ordinance punishes zina with whipping, at a public place, of 100 stripes.15 Law reform in 2006 repealed provisions stating that these Ordinances override all other laws,16 but as already noted they apply to girls and boys from the onset of puberty and are not clearly overridden by the JJSO.

Other Hudood Ordinances were not amended in 2006. The Prohibition (Enforcement of Hadd) Ordinance 1979 punishes offences relating to alcohol and other intoxicating substances with whipping up to 30 stripes in most cases, up to 80 stripes for “drinking liable to hadd”.17 The Ordinance overrides other laws.18 The Execution of the Punishment of Whipping Ordinance 1979 requires the involvement of medical personnel, ensuring the punishment does not result in the convicted person’s death, being present at the punishment, and intervening if necessary.19

The Offences Against Property (Enforcement of Hudood) Ordinance punishes offences relating to theft with amputation – of the right hand for the first offence, the left foot for the second.20 The amputation must be carried out by an authorised medical officer, who must be of the opinion that it would not cause the death of the convicted person.21 The Ordinance also provides for whipping up to 30 stripes and, for offences involving theft of cattle, 70 stripes.22 It overrides other laws.23

Children in FATA may be sentenced to whipping under the Frontier Crimes Regulation.24

The JJSO states that no child may be ordered to labour during time spent in a borstal or other institution.25

Life imprisonment

The Juvenile Justice System Ordinance does not prohibit life imprisonment. It allows for a child to be sent to a borstal institution until the age of 18 or for the period of imprisonment to be reduced,26 but these are optional alternatives to the penalties specified in the Penal Code and the court may still impose life imprisonment.27 The Penal Code punishes a number of crimes with life imprisonment;28 it is reckoned as equivalent to imprisonment for 25 years.29 The sentence may be commuted to imprisonment for a term up to 14 years.30 Children may also be sentenced to life imprisonment under the Control of Narcotic Substances Act31 and, presumably, the Anti-Terrorism Act.

In Sindh province, the Sindh Children Act states that child offenders (under 16) should not be sentenced to imprisonment but also states that the Court may in certain circumstances “order the offender to be kept in safe custody in such place or manner as it thinks fit”.32 The federal Reformatory Schools Act 1897 provides for boys aged under 15 at the time of conviction of an offence punishable with life imprisonment to be sent to reformatory schools for between three and seven years, but the Act has not been implemented.33

Punishment of life imprisonment was removed from the Offence of Zina (Enforcement of Hudood) Ordinance and the Offence of Qazf (Enforcement of Hadd) Ordinance in 2006.34 However, a person who has reached puberty may be sentenced to life imprisonment under the Prohibition (Enforcement of Hadd) Order35 and the Offences Against Property (Enforcement of Hudood) Ordinance.36

There is no provision for life imprisonment in the Frontier Crimes Regulation in force in FATA.

 


1 Section 2(b)

2 Section 14

3 Section 7(1)(a) and section 9(c) respectively

4 Amnesty International (2010), Amnesty International Report 2010: The state of the world’s human rights, London: Amnesty International

5 Section 5(2)

6 Section 11

8 Section 3

9 Section 17(4)

10 Section 306

11 Section 12

12 The Child Offenders Bill 1995 clearly stated in section 11: “(1) Notwithstanding anything contrary contained in any law for the time being in force, no child shall be awarded punishment of death, whipping, amputation or ordered to labour during the time spent in any borstal or such other institution. (2) Notwithstanding anything contained in any other law for the time being in force, no child shall be handcuffed, put in fetters or given any corporal punishment at any time while in custody.” But as enacted, the Juvenile Justice Ordinance 2000 refers to corporal punishment only in relation to custody and makes no explicit reference to amputation, stating in section 12: Notwithstanding anything to the contrary contained in any law for the time being in force no child shall be: (a) awarded punishment of death, or ordered to labor during the time spent in any borstal or such other institution; and (b) handcuffed, put in fetters or given any corporal punishment at any time which is custody; Provided that where there is reasonable apprehension of the scape of the child from custody, he may be handcuffed.” (emphasis added). According to Abdullah Khoso, in correspondence with CRIN 1 April 2011, section 12 is interpreted as prohibiting corporal punishment as a sentence of the courts.

13 Section 3. See also OMCT (2003), Rights of the Child in Pakistan: Report on the implementation of the Convention on the Rights of the Child by Pakistan, p.13

14 Section 7(1)

15 Section 5(2)

16 Protection of Women (Criminal Laws Amendment) Act 2006, sections 14 and 28

17 Sections 3, 4, 8, 11 and 25

18 Section 29

19 Mehdi, M. (1991), “Health implications of torture in Pakistan”, Journal of medical ethics, 17, Supplement, pp.35-38

20 Section 9

21 Section 9

22 Sections 17 and 21

23 Section 3

24 Sections 6 and 12

25 Section 12

26Section 11

27 UNICEF (2006), Juvenile Justice in South Asia: Improving Protection for Children in Conflict with the Law, NY: UNICEF Regional Office for South Asia, p.97

28Sections 53, 120, 121, 122, 124, 125, 128, 130, 131, 132, 194, 195, 211, 212, 213, 214, 216, 221, 222, 225, 232, 238, 255, 295, 302, 327, 354, 364, 365, 371, 377, 388, 389, 394, 395, 396, 400, 402, 409, 412, 413, 436, 438, 449, 450, 459, 460, 467, 472, 474, 477, 489, 506 and 511

29 Section 57

30Section 55

31Section 9(c)

32Section 68

33CRC/C/65/Add.21, 11 April 2003, Second periodic report to the Committee on the Rights of the Child, paras. 50 and 372

34Protection of Women (Criminal Laws Amendment) Act 2006

35Sections 2 and 20

36Section 9(c)

    pdf: http://www.crin.org/violence/search/closeup.asp?infoID=23610

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