Pakistan – UPR Submission by ADPAN and 15 CSOs

 PAKISTAN: The Death Penalty

 For the United Nations Universal Periodic Review of Pakistan [6-17 November 2017]

Submitted by ADPAN (Anti-Death Penalty Asia Network) and

15 Civil Society Organisations(CSOs) listed below

After 8 years of moratorium on execution, in the wake of Peshawar massacre of 2014, when more than 150 people (there was no official figure available as many injured succumbed to injuries later) mostly school pupils were martyred and many others were seriously injured, the government of Pakistan decided to lift the moratorium on death penalty in terrorism related cases, however later it has silently lifted the moratorium for all capital cases.

About 471 prisoners have been said to be executed since Pakistan had lifted moratorium.

In 2016, only about 7 out of the 87 executed were for terrorism offences.  Thus, only 8% of persons executed for terrorism offences, the very reason given by Pakistan to end the moratorium on executions 8 years ago.(see Human Rights Commission of Pakistan website at http://hrcp-web.org/hrcpweb/wp-content/uploads/2016/12/Final-Executions-2016.xlsx-9.pdf )

As of December 2017 more than 8000 are languishing on death row in Pakistan, as suggested by various reports, as there is no official data available.

 

UNFAIR TRIALS – Military Courts and the 21st & 23rd Constitutional Amendment

Pakistan created special military courts to try persons, including civilians, alleged to have committed terrorism offences but these courts fall short of fair trial standards. There is not even no right to appeal from the decisions of these courts.

The special military courts, to try alleged terrorism related offenders, were set up in January 2015, by virtue of Pakistan Army (Amendment) Act, 2015 commonly known as the 21st Constitution Amendment. (http://www.na.gov.pk/uploads/documents/1449574923_658.pdf) This special legislation had a sunset clause by the virtue of which it would expire on Jan 7, 2017 and the military courts would cease to exist. But through Twenty third amendment Act of 2017, military courts have been revived for further two years period up to January 2019. (http://www.na.gov.pk/uploads/documents/1491460727_515.pdf)

The military courts began trials in February 2015 and during the period from January 2015 to January 2017, had convicted 274 hardcore militants of which 161 were sentenced to death whereas 113 others were awarded prison terms, mostly life imprisonment. https://www.ispr.gov.pk/front/main.asp?o=t-press_release&cat=army&date=2017/1/8

Human Rights groups in Pakistan have time and again voiced serious concerns over the procedure adopted by the military courts.

Reports state that most of the relatives of the persons arrested, detained and convicted by these military courts, only came to know about the conviction of their dear and near ones through media when the Inter Services Public Relations made public the convictions and sentence through issuance of press releases. In several of the cases people had complained that their convicted relatives were believed to be “missing persons” when in fact they had been in detention for many years before their trial and subsequent convictions.

Military court trials, in pursuant to the constitutional amendments, fall far short of international fair trial standards and also to the guarantees enshrined in the Constitution of Pakistan (especially right to life, right to fair trial and right to have counsel of one’s own choice, Article 9, 10 and 10 (a)).

Further, in most of the cases it has been alleged that the accused confessed his crime which itself questions the justice of the whole arrest, detention, prosecution and the trial before such military courts.(ISPR press release of May 12, July 14, October 13, November 7,22, December 16, 28, 2016. https://www.ispr.gov.pk/front/main.asp?o=t-press_release&cat=army&date=2016/12/28

High number of confessions raised serious questions about the interrogation methods employed, and suggest the possibility of even torture and threats.

Non availability of oversight of Superior Courts is another point of concern as decisions of military courts are only permissible to limited judicial review, that is only with regard the question of lack of jurisdiction, coram non judice or mala fides.

It must be noted in that a, sentence of death awarded in the formal justice system of Pakistan by any session court is subject to confirmation by a two member bench of the High Court but this necessary protection against miscarriage of justice is not available to persons charged and tried by these military courts.

Though, Pakistan Army amendment Act, 2017, provides some protection like, ground of arrest within 24 hours of arrest, right to engage counsel of one’s own choice, application of Qanoon e Shahadat Order 1984 (Law of Evidence, 1984) but still since there is no right of comprehensive judicial review or even right of appeal to higher courts, the right or ability to challenge the deprivation of such rights and protections provided for in the Army Act, is easily denied.

Military Courts have also tried and convicted juveniles. One example is the case of Haider Ali.

Haider Ali, was convicted by military court but his mother challenged the conviction on the grounds that when Haider Ali was taken in to custody by military agencies, he was grade 10 student(about 15 years old), and that the military courts have no jurisdiction to try a juvenile. Unfortunately, both the High Court and the Supreme Court agreed with the prosecution that that the amendments to the Army Act superseded all other laws,(section 4, Pakistan Army Amendment Act 2017) and military courts could legally try individuals suspected of committing terrorism-related offences, even if they were under the age of 18 at the time of offence. http://www.supremecourt.gov.pk/web/user_files/File/C.P._842_2016.pdf ;http://www.na.gov.pk/uploads/documents/1491460313_135.pdf

Reforms in the legal framework:

Though Pakistan has ratified ICCPR, UNCAT UNCRC that required the State Parties to limit the death penalty only to the most serious offences, to not resort to torture, and to ensure special protection for children but the Pakistan, military courts are dispensing “justice”, and even trying civilians and children in contravention to Pakistan’s commitment to these UN Conventions and/or Treaties..

The only source of information of those who arrested, detained, tried and convicted by military courts is a media statement of the Inter Service Public Relation (ISPR) after sentence has been meted out, with no other necessary details.

Death penalty through the military courts for those committing acts of terrorism has failed to deter such crimes. The series of attacks since the end of the moratorium and the imposition of the death penalty is sufficient proof of this.

There were only 2 crimes carrying death penalty in 1947 when Pakistan came in to being but now there are altogether 27 offences that carry death penalty in Pakistan.  Further, Death penalty in Pakistan is not reserved to the most serious crimes but also now includes ordinary offences like kidnapping and drug offences.

RECOMMENDATIONS:

  1. Abolish Military Courts System. Pakistan should try all persons, including those accused of committing terrorist linked offences in the normal criminal courts. Repeal the twenty third constitutional amendments and all subsequent amendments in the Army Act that allow military courts to try civilians, that undermine legal safeguards that ensure fair trial.

 

  1. Until the military courts system is abolished, and the 23rd Constitutional amendment is repealed, there must be:-

a. Immediate access to lawyers and family members of persons arrested and detained for alleged terrorist acts

b.The right to a fair and open trial, with the right to appeal;

c. Immediate public disclosure of persons arrested, detained and being tried

d. The transfer of all cases pending or before the military court involving civilians should be transferred and tried before the ordinary criminal courts;

e. That all those persons convicted and sentenced to death by military courts shall not be executed, until and unless the conviction and sentenced have been reviewed and confirmed by a 2 member bench of the High Court, as is the requirement for cases where persons are sentenced to death in the normal courts in Pakistan;

f. That juveniles and/or children shall not be tried in military courts, and should never be sentenced to death.

g. Make public the exact number of death row prisoners along with case details of all those who have been tried and convicted by military courts since the introduction of 21st constitutional amendment.

 

General Recommendations:

  1. Being a party to the International Covenant on The Civil And Political Rights (ICCPR), Pakistan should immediately impose moratorium on death penalty as a first step towards abolition, restrict the number of offences carrying death penalty to the most serious crime only, as reflected in Article 6 of the ICCPR.

Dated: 7 November 2017

Submitted by:-

Anti-Death Penalty Asia Network(ADPAN)

Democratic Commission for Human Development, Pakistan

MADPET (Malaysians Against Death Penalty and Torture)

Legal Awareness Watch (LAW), Pakistan

Odhikar, Bangladesh

Christian Development Alternative (CDA), Bangladesh

South Asia Partnership- Pakistan

Youth for Democracy and Development

Malaysian Physicians for Social Responsibility

Australians Against Capital Punishment(AACP)

Women in Struggle for Empowerment, Pakistan (WISE)

Centre for Human Rights Education- Pakistan

National Commission for Justice and Peace, Pakistan

NGO’s Development Society- NDS Sindh

PIRBHAT Women’s Development Society Sindh

Saeeda Diep Institute For Peace And Secular Studies

Japan – ADPAN & 14 CSOs Submission for UPR

JAPAN: The Death Penalty

 For the United Nations Universal Periodic Review of Japan [6-17 November 2017]

Submitted by ADPAN (Anti-Death Penalty Asia Network) and 14 Civil Society Organisations (CSOs) listed below

 

Since the last UPR of Japan in 2012, 26 persons have been executed from 2012 to 2017, whereby 2 have been executed in 2017. A total of 36 death sentence have been finalized from 2012 to 2016. As of the end of 2016, there are 128 persons on death row.

Death penalty continues to exist in statute books  for crimes that do not result in the death of any  victim.

Whilst, we continue to call for the abolition of the death penalty in Japan, and for a moratorium on all executions pending abolition, we would like to highlight specific concerns concerning the death penalty and unfair trials, which we hope would form part of UN member states recommendations at the upcoming UPR.

In brief,  besides calling for the abolition of the death penalty, and an immediate moratorium on all executions, we are hoping that the following specific recommendations be made to made to Japan:-

 

– That Japan makes it a requirement that no one shall be sentenced to death unless the decision of the court, including ‘lay judge system’ courts, is unanimous.

 

 – That no one is executed until and unless cases are reviewed and considered by all existing appellate courts and clemency processes in Japan. We recommend a Mandatory Appeal System and Clemency Processes for all capital penalty cases.

 A. REFORM OF THE ‘LAY JUDGE SYSTEM’ COURTS – UNANIMOUS DECISION FOR DEATH PENALTY

  1. In 2009, a new trial system was introduced, known as the ‘lay judge system’, whereby serious cases like murder that carry the death penalty are conducted before 6 ordinary citizens and 3 career judges. All that is required for the death penalty to be imposed is a simple majority, which includes 1 vote from one of the 3 career judges.’
  2. As of March 2015, prosecutors have sought the death penalty for 31 persons, and the ‘lay judge system’ courts have handed down the death penalty for 23 cases, which is about 74%. In comparison, when such cases were tried and finalized between 1980 and 2009 before career judges, only about 55% received the death sentences in cases where the prosecution sought the death penalty.
  3. There is an unnecessary and even dangerous risk of injustice for a person to be sentenced to death in a situation when the decision of the court is only based on a simple majority decision of a ‘lay judge system court’. This is because legally trained and experienced judges are typically more likely to apply reason and law dispassionately to the facts. In serious cases of dreadful crimes, international experience over time and cultures shows that legal training and experience are essential qualities in the application of fair legal reasoning. After all, that is why all countries have legally trained people administering justice. Under the lay judge system at this time, the experienced legally trained judges can be outvoted by the lay jury.
  4. Justice demands that a decision to impose the death sentence should be unanimous. In the United States of America, a conviction and a death sentence requires a unanimous jury verdict in the Federal Government and all states save 2. Two states, Louisiana and Oregon, permit convictions on less-than-unanimous jury verdicts. In both states a defendant can be convicted by an 11-to-1 or 10-to-2 vote. This is a similar position that exists in many other jurisdictions, which still have the jury system when it comes to criminal cases.
  5. Overwhelmingly, although it is expressed in different language in different systems, courts need to be satisfied beyond reasonable doubt before a finding of guilt in serious criminal matters. This is a much higher standard than ‘on balance’ or ‘by majority’. Similar reasoning should apply to the question of whether to execute – the tribunal should be satisfied by a significant margin. We say that a unanimous verdict should be required before a person is to be put to death.
  6. As such, in the Japanese ‘lay judge system’ courts, a simple majority decision of a panel of 9 persons (6 lay persons and 3 judges) has the potential to be unjust. The fact that 4 other persons, which may also include 2 of the 3 experienced career judges  decided not to convict and/or impose the death penalty is very relevant and should not be ignored.

RECOMMENDATION :

That Japan makes it a requirement that no one shall be sentenced to death unless the decision of the court, including ‘lay judge system’ courts, is unanimous.

 B. MANDATORY APPEALS AND CONSIDERATION FOR CLEMENCY BEFORE EXECUTION

7. On 13/7/2017, Koichi Sumida and another were executed at the Hiroshima Detention Center and Osaka Detention Center respectively.

8. Sumida was sentenced to death in lay judge trial held in February 2013, and there were no appeals, which means that no higher courts and/or bodies had the opportunity of reviewing the decisions of the first court.

9. This is the third execution of an inmate whose death sentence that was imposed by the ‘lay judges system’ courts did not go on appeal to the High Court, or the further appeal to the Supreme Court.

10. The reasons why this persons who were sentenced to death did not choose to exercise their right to appeal is a mystery.It is not clear why they did not file appeals, or why they later chose to withdraw their appeal as was by Sumida.

11. Some, amongst death row inmates call this “volunteer”. Some just wish to be executed, having given up the will to live. It is akin to a desire to commit suicide.

12. It is a fact that courts can make mistakes, and it is not uncommon in mostjurisdictions that appeal courts do overturn convictions and/or sentences.

13. As an example, it must be pointed out that the Tokyo High Court, did overturn lay judges court’s decisions to impose the death penalty in three cases, which were subsequently upheld by the Supreme Court in 2015. The absence of an appeal, would have not allowed the High Court and/or higher courts correct errors made and save lives.

14. In many jurisdictions, in capital cases, a plea of guilty will not be accepted. The trial will have to proceed to enable the courts to make its own determination based on the evidence adduced, that the said accused person is proven to be guilty in accordance to the required standard of proof in a criminal case, and thereafter whether evidence adduced and the circumstances of the case justify the imposition of the death penalty.

15. The rationale behind this practice in capital cases, is the desire of the State to ensure that there is no miscarriage of justice, and no innocent person or convicted person not deserving to be sentenced to death, is wrongly sentenced to death.

16. Applying the same rationale, there is a need to put in place a mandatory appeal system, that will require all cases of persons sentenced to death, to have their cases mandatorily brought before the Appeal courts in Japan, to enable the Appellate courts to review not just the death penalty, but also the conviction that resulted in the death sentence.

17. In the case of Japan, this would mean that there shall be an appeal to the High Court, and thereafter a further appeal to the Supreme Court for all cases where the convicted has been sentence, irrespective of whether the convicted chooses not to appealthe conviction, and/or the death sentence.

18. In the same way, after all appeals are done, all cases that carry the death sentence, shall go through the existing clemency process in Japan, noting that a such process could also decide to commute the death sentence to a prison sentence, or even result in a full pardon in exceptional cases.

19. In such capital cases, if the accused and/or convicted, do not have a lawyer, then the court shall appoint a lawyer to act on behalf of the said accused.

RECOMMENDATION:-

That no one is executed until and unless cases are reviewed and considered by all existing appellate courts and clemency processes in Japan. There should be a Mandatory Appeal System and Clemency Processes for all capital penalty cases.

We refer also to the earlier submission made by the Advocates for Human Rights, the Center for Prisoners’ Rights and the World Coalition Against the Death Penalty and state our support for the recommendations made therein.

 

Dated: 13 September 2017
Submitted by:-

Anti-Death Penalty Asia Network(ADPAN)

Center for Prisoners’ Rights Japan


Forum 90, Japan

Ichiyou-kai, Japan

Inter-religious Network “Stop the Death Penalty!”, Japan

Japan Catholic Council for Justice and Peace, Sub-Committee for Abolition of the Death Penalty

Jesuit Social Center Tokyo

MADPET (Malaysians Against Death Penalty and Torture)

Legal Awareness Watch (LAW), Pakistan

ODHIKAR, Bangladesh

Christian Development Alternative (CDA), Bangladesh

Norden Directions, Australia

Democratic Commission for Human Development, Pakistan

Think Centre, Singapore

Civil Rights Committee of  Kuala Lumpur And Selangor Chinese Assembly Hall, Malaysia

 

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ADPAN – Pakistan:- NO EXECUTIONS BASED ON MILITARY COURT’S DECISION WITHOUT BEING ACCORDED THE RIGHT TO APPEAL

ADPAN

Media Statement – 22/9/2017

NO EXECUTIONS BASED ON MILITARY COURT’S DECISION WITHOUT BEING ACCORDED THE RIGHT TO APPEAL

Abolish the Death Penalty, And  Re-Introduce the Moratorium on Execution Pending Abolition

ADPAN is appalled reports that another 4 persons, tried by Pakistan’s military courts, may be executed soon after their death sentence was confirmed by the Chief of Army. This Military Court, which came into being in January 2015, for the purpose of speedily trying persons accused of committing terrorist offences, falls short of international fair trial standards and requirements, including the denial of the right to appeal.

Decisions of these military courts, unlike normal criminal courts in Pakistan, are not subject to appeals to the High Court and/or the Supreme Court.

This denial of the right to appeal means appellate courts will not have the  opportunity of  analysing  the  evidence  produced  before  the military court  or  dwelling  into the “merits” of the case.  This reasonably will increase the possibility of miscarriage of justice, and hence the likelihood of a person not deserving the death penalty (or even an innocent person) to be wrongfully deprived of his/her life.

The Chief of Army Staff General Qamar Javed Bajwa confirmed on Wednesday(20/9/2017)  the death sentences awarded to four alleged ‘ terrorists’. This ‘confirmation’ is really an execution order, and this four persons could thereafter be executed at any time. (Geo News, 20/9/2017; Sify.com 20/9/2017; Dawn 20/9/2017; Pakistan News Service – PakTribune 21/9/2017 ).

Shabbir Ahmed,  Umara Khan,  Tahir Ali and Aftabud Din, according to a government statement, vide the Inter Services Public Relations, stated that these 4 persons  were ‘involved in killing of 21 persons and injuring another person’ and also that ‘…arms and explosives were also recovered from their possession…’. It also stated that they were tried by military courts that then sentenced them to death.

Earlier this month, on 8/9/2017, it was also reported that Army Chief General Qamar Javed Bajwa  had confirmed the death sentence of four other persons, being Raiz Ahmed, Hafeez ur Rehman, Muhammad Saleem and Kifayatullah. (Daily Pakistan, 8/9/2017). These persons were said to have caused the death of 16 persons, and that arms were recovered in their possession. It was also disclosed that 23 others were also awarded imprisonment of various durations by the military courts.

Pakistan had a moratorium on executions for about 8 years, until the end of 2014, when it was lifted for terrorist linked offences, and thereafter for other capital offences. Since then, about 471 persons have been executed for various crimes.

After the December 2014 terrorist attack at the Army Public School in Peshawar, the Pakistan government set up this military court for speedy trial of detained terrorists. The military courts (Field General Court Martial – FGCM) came into being in January 2015, by virtue of Pakistan Army (Amendment) Act, 2015 commonly known as the 21st Constitution Amendment.  This legislation had a sunset clause, and would have expired on Jan 7, 2017.

However, in March 2017, President Mamnoon Hussain signed the 23rd Amendment Bill 2017, which has now become an Act of Parliament, that had the effect of extending duration of the military courts for another two years, starting from January 7, 2017.

Article 10 of the UN Declaration of Human Rights stipulates that, ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’ The trying and sentencing of a person/s allegedly committing a certain kind of offence before a special ‘court’, different from the  court having the jurisdiction to try criminal cases in Pakistan may also be considered discriminatory,

Article 14(5) of the International Covenant on Civil and Political Rights, which Pakistan ratified in 2010, states   clearly that, ‘ Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’

The current unavailability of the right of appeal to higher courts on convictions and/or sentences of these military courts is clearly is a violation of the International Covenant on Civil and Political Rights, and a denial of the right to a fair trial.

ADPAN calls on Pakistan not to proceed with the executions of persons convicted and sentenced to death by the military courts, until they have been accorded the right to a fair trial including the right to have the conviction and sentence reviewed by a higher tribunal, which would reasonably be the High Court and thereafter the Supreme Court of Pakistan;

ADPAN calls for the repeal of the Constitution Amendment/s and the law that created these military courts;

ADPAN calls for all persons charged with a crime in Pakistan be tried by the already existing criminal courts of Pakistan, and shall be accorded a fair and public hearing by an independent and impartial tribunal;

ADPAN calls on Pakistan to immediately re-impose a moratorium on execution, pending abolition of the death penalty.

 

Charles Hector
For and on behalf of ADPAN (Anti Death Penalty Asia Network)