It's been 13 years since Pakistan signed the UN Convention on the Rights of the Child, but still juvenile criminals face the death penalty in some parts of the country.
When 17-year-old Qismat Ali was chosen to captain the Shaheen-XI cricket team recently, it was a rare honour in cricket-mad Pakistan. What made the occasion unprecedented, however, was the fact that Ali and his teammates were – and still are – all inmates of Haripur Central Jail in the North West Frontier Province (NWFP).
Ali, serving a 43-year sentence for robbery and 'anti-state activities', lives in better conditions then most of Pakistan's juvenile prisoners – he is at least able to study for his BA, watch television and play cricket.
But his case also highlights the harshness of Pakistan's criminal justice system when dealing with children from poor backgrounds.
Ali was at school when he was arrested three years ago. He says he was held by the police for 16 days, tortured until he signed away his family's land, and then sent to prison on fabricated charges. Before his sentence ends, Ali's family must pay a surety bond of Rs. 100,000 ($1,743) – otherwise Ali faces another 10 years in jail.
He says his brother, who was arrested at the same time, is serving a life sentence on similar fabricated charges.
Over 85 per cent of NWFP's juveniles come from poor backgrounds. Once in prison most inmates face grim conditions: severe overcrowding (although Pakistan's prison capacity is 33,000, the prison population is 80,000 according to Penal Reform International), abuse by adult prisoners, poor sanitary conditions, harsh disciplinary measures, and lack of recreation and vocational or educational training.
Anees Jillani, head of Society for the Protection of Rights of the Child (SPARC), an Islamabad-based child rights organisation, says the juvenile justice system is skewed in favour of the privileged. "It's not only the poor children who commit crimes. In fact the children from the rich class commit more crimes but they get away with them because of their financial background and influence. The whole system is lopsided."
A recent example is the case of Asif Khan, a politician's son from Landi Arbab village near Peshawar who faced a 14-year jail sentence after stealing a car. His family bailed him out after three days in custody, claiming he was a juvenile and therefore did not have to be locked up pending a trial. According to legal sources, they then put pressure on the owner of the car to drop the case.
Mukhtar Khan, a Peshawar policeman, admits that the police treat rich and poor kids differently. "Policemen sometimes come under pressure from different people in different ways and for different reasons," he says, referring to the bribes offered by wealthy parents.
"I have a lot of sympathy for poor kids but I also know that a lot of children nowadays are involved in serious crimes like drug pushing. If we treat them leniently, lots of others will follow them," he says.
Some experts are concerned not only about the treatment meted out to poor people by the criminal justice system, but also about the way this lack of justice drives them deeper into poverty.
Arshad Mehmood, deputy national coordinator of SPARC in Peshawar, works with many juveniles whose rights are not upheld – with lasting consequences for them and their families.
"Once in jail they are rejected by society and all doors of growth are shut. This pushes them further into the clutches of poverty," says Mehmood.
Their families, he says, are forced either to spend their scarce earnings on seeking justice, or are impoverished through loss of a breadwinner.
Michael Anderson, a researcher and senior justice advisor to the British government's Department for International Development, has studied this issue across several developing countries. He reports: "Making legal institutions accessible and responsive to the poor, contributes not only to the realisation of constitutionally guaranteed rights, but also to the broader goals of development and poverty reduction."
Pakistan's military government, bowing to international pressure to implement the United Nations Convention on the Rights of the Child (CRC) which it had ratified in 1990, introduced the Juvenile Justice System Ordinance 2000 to improve the conditions for juvenile prisoners.
In keeping with the CRC, the ordinance bans the death penalty for juveniles, calls for separate custodial arrangements, legal counsel at the expense of the state, provincial juvenile courts, and the use of alternative sentencing measures such as release on probation.
However, few juveniles languishing in Pakistan's jails have benefited from the law because police, judiciary and prison authorities lack resources, awareness of the ordinance and training on how to implement it.
"The law is there but the environment needed for its implementation doesn't exist," says Noor Alam, a high court Peshawar lawyer specialising in juvenile and drug cases. "It's the callous attitude of the whole society towards children and the government is not interested in improving their plight."
However, Afrasiab Khattak, chair of the Human Rights Commission of Pakistan (HRCP) said he believes that the law is a positive start. "The real issue is that access to [juvenile] justice is expensive and slow. This is where the government needs to make improvements."
NWFP's government is trying to do just that. Its Directorate of Human Rights, has begun a pilot scheme in one police station to train staff how to treat juveniles. Though separate courts have yet to be set up, the NWFP chief justice has delegated additional powers to magistrates to handle juvenile cases.
The provincial government has also allocated a sum of Rs 25 million (US$435,860) to build juvenile prisons in Peshawar and Bannu, a district south of Peshawar. Civil society organisations are already involved in training police and lawyers, providing legal aid and improving conditions in prisons like Ali's Haripur jail.
But in NWFP, a loophole in the law means that hundreds of children living in tribal areas bordering Afghanistan are not covered by the Ordinance. They are governed by federally-appointed leaders who make their own laws.
Tragically this means that two young boys, Mohammad Rafique and Sohail Fida, 16 and 17 years old respectively, are on death row.
Their only hope is for the Ordinance to be extended to the tribal areas – an idea discussed recently at a meeting chaired by NWFP's chief secretary.
Christopher Nadeem is a Pakistani freelance journalist based in Peshawar.