James Lockyer is senior counsel and Kirk Makin is director at the Association in Defence of the Wrongly Convicted
A life-and-death drama playing out in Pakistan has horrifying parallels to a long-ago case in Ontario that turned into Canada's most notorious miscarriage of justice.
In 2004, Shafqat Hussain was arrested for the kidnapping and murder of a child. On Sept. 1, 2004, he was convicted and sentenced to death. He was 14 years old. He is on death row in Karachi and his hanging is imminent. He is almost certainly innocent.
On June 12, 1959, Steven Truscott was arrested for the rape and murder of 11 year old Lynne Harper in Clinton, Ont. On Sept. 30, 1959, he was convicted and sentenced to death. He was 14 years old. He was on death row in the Goderich jail waiting to be hanged. He was definitely innocent.
But this is where the parallels end.
On Jan. 21, 1960, Steven Truscott's death sentence was commuted to life imprisonment. On Aug. 28, 2007, almost 48 years after his death sentence, the Ontario Court of Appeal quashed his conviction and acquitted him of Lynne Harper's murder.
Shafqat's sentence has not been commuted nor has he been exonerated. On the contrary, his execution could happen any day. He was to be hanged on Jan. 13, 2015, but the execution was stayed on Jan. 5; then on March 19, 2015, but stayed on March 18; then on May 6 but stayed on May 5; then on June 9 but stayed hours before it was to happen. He has at least one more month to live because of Ramadan. According Nusrat Mangan, the Inspector General of the prison where Shafqat is being held, "it is a tradition that nobody is executed during the fasting month of Ramadan."
Shafqat was convicted in the kidnapping and murder of a child who lived in a building where Shafqat worked as a guard and caretaker. He was developmentally disabled. He was brutally tortured to confess. The torture involved beatings, electrocution and burning with cigarettes. He still has the scars of his torture. His conviction rested on his confession.
In December, 2014, after a seven-year hiatus, Pakistan started executions again. Since then, more than 100 people have been executed there, making Pakistan the world's third most prolific executioner in 2015, behind only China and Iran. It has overtaken Saudi Arabia, Iraq and the United States, who have each dropped one place on this macabre list.
Last Wednesday, Aftab Bahadur, 15 years old when he was sentenced to death, was hanged in Kot Lakhpat Jail in Lahore, for a murder that he likely did not commit, after spending 23 years on death row. He was hanged despite pleas for clemency from within and outside Pakistan. Mr. Bahadur wrote a letter to The Guardian, a British newspaper, the day before he was hanged. He proclaimed his innocence, described his torture that forced him to confess, and said:
"I just received my Black Warrant. It says I will be hanged by the neck until dead on Wednesday, 10 June. I am innocent, but I do not know whether that will make any difference. It is strange, but I cannot even tell you how many times I have been told that I am about to die. I start to count down the days, which is in itself painful, and I find that my nerves are shackled in the same way as my body. In truth, I die many times before my death. I suppose my life experience is different from that of most people, but I doubt there is anything more dreadful than being told that you are going to die, and then sitting in a prison cell just waiting for that moment. For many years – since I was just 15 years old – I have been stranded between life and death."
Pakistan's criminal justice system is riddled with systemic issues including the use of police torture, endemic delays, ineffective legal assistance and corruption. There are a large number of prisoners on death row in Pakistan who have been arrested and convicted while still under 18. This problem is exacerbated because Pakistan is one of the 10 countries with the lowest birth registration in the world, rendering it impossible for many juvenile defendants to prove their age at their trials.
Shafqat is now the subject of a worldwide appeal for his life. Reprieve in the United Kingdom and some very brave lawyers in Pakistan are leading the charge. The Supreme Court in Pakistan has refused to consider the allegations of torture and to consider the illegality of Shafqat's death sentence in light of his age at the time of his trial since the trial court had never been told he was only 14. In one judgment, the High Court referred to international media coverage of the case as "undeserved hype". Only Pakistan's President, Mamnoon Hussain, can spare Shafqat's life now as the Courts have refused to intervene. We need an international outcry as loud and as widespread as that for Steven Truscott's life in 1959 if Shafqat's life is to be saved.