Rabia Mustafa, Sharafat A. Chaudhary

Background

Pakistan has been at the vanguard of the international movement for the protection of the rights of children. Pakistan was one of the six countries that initiated the World Summit for Children in 1990 to highlight concern about the issues facing children globally. The government of Pakistan has taken various measures to establish a justice system that deals with ‘the child’ as part of its constitutional obligations and international commitments. For the protection of the rights of the child as well as ensuring his/her welfare, a cursory glance at the historical evaluation of international movements as well as the existent criminal justice system in Pakistan seems inevitable.

In 1924, the League of Nations adopted the Geneva Declaration, a historic document that recognized and affirmed for the first time the existence of the rights specific to children and the responsibility of adults towards them stating that “the delinquent child must be reclaimed”. United Nations Declaration on the Rights of the Child in 1959 considering ‘the best interests of the child’ as a guiding principle states that ‘the child shall in all circumstances be among the first to receive protection and relief’. The policy guidance for treatment of juveniles who come in conflict with law has been laid down by instruments pertaining to international standards of administration of juvenile justice including United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the “Beijing Rules”), UN Convention on the Rights of the Child, 1989 (“CRC”), United Nations Guidelines for the Prevention of Juvenile Delinquency 1990 (the “Riyadh Guidelines”),  United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990 (the“JDL”), United Nations Minimum Rules for Non-custodial Measures,1990 (the “Tokyo Rules”), Guidelines for Action on Children in the Criminal Justice System,1997(the “Vienna Guidelines”). Pakistan, as part of its international commitments, signed soon after its opening and ratified CRC, and pledged to take measures for the protection of the child, evasion of juvenile delinquency and safeguarding the best interest of the child.

The rights of the child are guaranteed by the Constitution and the criminal justice system of Pakistan.  Article 25(3) and Article 26(2) of the Constitution of Pakistan provide that special enactments and special laws can be framed to protect the rights of the child. Section 82 of the Pakistan Penal Code, 1860 (“PPC”) provides that ‘nothing is an offence which is done by a child under ten years of age’ and Section 83 thereof further provides that ‘nothing is an offence’ if done by a child of immature nature who is above ten and below fourteen years of age, provided the child is unable ‘to judge of the nature and consequence of his conduct on the occasion’. Although the child has not been defined in the Pakistan Penal Code, 1860, as well as in the Criminal Procedure Code, 1898, the adult has been defined in another statute, namely the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as “a person who has attained, being a male, the age of 18 years or, being a female, the age of 16 years, or has attained puberty.” With respect to the jurisdiction of Court vis-à-vis juveniles, it has been provided in Section 29-B of the Pakistan Criminal Procedure Code, 1898, that “any offence, other than one punishable with death or transportation for life, committed by any person who, at the date when he appears or is brought before the Court, is under the age of 15 years, may be tried by a District Magistrate or by any Magistrate empowered by the Provincial Government to exercise the powers conferred by Section 8, Sub-section (1) of the Reformatory Act 1897.” This section, in any manner, neither creates a special court to try juvenile offenders nor empowers the court to grant them concessionary treatments.

In pursuance of the international commitments as well as the enabling provisions in the Constitution of Pakistan, the Juvenile Justice System Ordinance, 2000 (“JJSO”) was promulgated in the year 2000.  It was introduced in the form of an ordinance because Parliament was not functional due to the proclamation of Emergency in October 1999. The JJSO aimed at providing special and separate procedures for children who come into conflict with the law. This was comparatively an exhaustive effort to safeguard the interests of the child and juvenile delinquents. This was a major development in the legal history of Pakistan, where the child was granted special treatment in the justice system of the country. The JJSO required that separate courts with the name of juvenile courts be established, and the matters of juvenile offenders must be tried by such courts. The separate trial from an adult co-accused, concessions in bail matters, consideration of confinement as a last resort, and placement under a probation officer in a Borstal institution or a place where ‘child offender may be detained and given education and training for uplift of their mental, moral, and psychological development’ are among the key features of JJSO. A person under the age of 18 years, regardless of gender, has been acknowledged as a ‘Child’ in line with the provisions of the CRC. Under JJSO, no child shall be awarded punishment of death, ordered to labour, handcuffed, or put in fetters.

According to some sections of society, JJSO grants extraordinary favour to juvenile offenders. This perception triggered debates on the validity of JJSO. A noticeable occasion was when a complainant of an FIR, wherein a child was accused of committing murder, challenged the validity of JJSO before the Lahore High Court, Lahore (“LHC”) on the grounds that special protection and concessionary treatment, especially  the no awarding of the death penalty under JJSO, are unconstitutional and discriminatory. While admitting the petition for hearing, a three member bench of the LHC also appointed two learned amici curia. The LHC finally came to the conclusion that the JJSO has been introduced without deliberation and is full of infirmities. It was held that the Ordinance goes against the provisions of the constitution. Accordingly, the LHC struck off the JJSO from the statute book, considering it unreasonable, unconstitutional, and impracticable.

The Judgment of the LHC reported as PLD 2005 Lahore 15 was a big blow for the existing juvenile justice system dealing with the children who come in conflict with the law. The Government of Pakistan being aggrieved of the said judgment challenged the same before the Supreme Court of Pakistan and the apex court was pleased to suspend the operation of the said judgment of LHC; meaning thereby the Juvenile Justice System remains in the statute book for all intent and purposes and for application providing protection to the child till the time the Supreme Court of Pakistan finally adjudicate upon the appeal.

Before the enactment of Juvenile Justice Act 2018, the child offenders were being treated under JJSO since its promulgation. However, after receiving the deliberations of LHC in aforesaid judgement, it was felt that serious thoughts are to be given for improvement of JJSO with the aim of protecting juvenile delinquents and vouching for the best interest of the child. To review the existing Juvenile Justice System in Pakistan, various stakeholders, including 14 Government institutions, 17 NGOs and various experts on child rights, were invited to render their input. There was a long process of providing recommendations on the administrative as well as legislative sides.

In the above-mentioned circumstances, the Ministry of Law, Justice and Human Rights Pakistan, in collaboration of UNICEF, invited different stakeholders for further deliberations on setting up a refined Juvenile Justice System in Pakistan in light of the foregoing recommendations. For this very purpose, a National Conference was held that invited all the provinces, relevant government institutions, UN bodies, IGOs, partners for child protection, civil society, as well as individuals and experts working for child protection, particularly on child delinquency.

The Salient Features of the Act

The efforts of these stakeholders were fruitful, as the Juvenile Justice System Act, 2018 was enacted to protect the rights of kids who are allegedly engaged in crimes. JJSA got presidential assent on May 18, 2018. The salient features of the Act are the following:

  • Who is a Juvenile/Child: According to this Act, “child” means, for the purposes of this Act a person who has not attained the age of 18 years, and a “Juvenile” means for purposes of this Act, a child who may be dealt with for an offence in a manner that is different from that of an adult.
  • Categorization of Offenses: This Act categorises criminal offenses into three types: Minor, Major, and Heinous. Minor offences include those for which the Pakistan Penal Code’s (PPC) maximum sentence is up to 3 years, either with or without a fine. Major offences are those for which the PPC stipulates a sentence of three to seven years, with or without a fine. Heinous offences are those that are serious, harsh, or upsetting to public decency. These offenses are punishable by life imprisonment or a sentence of more than seven years, with or without a fine.
  • The concept of Diversion: “Diversion” means an alternative process of determining the responsibility and treatment of a juvenile on the basis of his social, cultural, economic, psychological, and educational background without resorting to formal judicial proceedings.
  • Juvenile Justice Committee: A Justice Committee shall be established that shall consist of four members. The members include a Judicial Magistrate with powers under Section 30 of the Code, who shall also head the Committee; a district Public Prosecutor; a member of local Bar with at least seven years standing at the Bar, appointed by the concerned Sessions Judge for period of two years; and serving probation officer or social welfare officer not below the rank of an officer in BPS-17.
  • The Process of the Arrest of Juveniles: The juvenile who has been arrested must be kept in an observation facility with no fetters and no handcuffs. The officer in charge of the police station must immediately notify the juvenile’s guardian, if one can be located, of the arrest and inform him of the time, date, and name of the juvenile court before which the juvenile must be produced. The officer in charge of the police station must also notify the concerned probation officer so that he can get any information about the juvenile and any other relevant circumstances that may be of assistance.
  • Release of a Juvenile: Minor and major offenses are bailable for a juvenile, except a juvenile of more than sixteen years of age and in Juvenile Court’s opinion, there are reasonable grounds to believe that juvenile is involved in commission of a heinous offence.
  • Disposal of Cases through Diversion: A complaint against a minor related to an offence must be forwarded to the Juvenile Justice Committee with the consent of the minor or his guardian, as appropriate, for disposition through diversion. The diversion may be used in accordance with the established procedures at any time during the police investigation’s course and during the prosecution’s and court’s trial. There are different modes of diversion, such as restitution of movable property, reparation of the damage caused, written or oral apology, participation in community service, payments of fine and costs of the proceeding, placement in a Juvenile Rehabilitation Centre, and written and oral reprimand.
  • Trial of a juvenile with an adult person: If the Juvenile Court determines that a joint trial is in the best interests of justice, a juvenile may be charged with and tried alongside an adult. If there is a joint trial, the juvenile court may allow the juvenile to participate in the proceedings via an audio-visual technological link without the need for the juvenile to be in person before it.
  • Disclosure of identity of the Juvenile: Anyone who prints or publishes a juvenile’s name or any other information that could reveal their identity shall be punished with imprisonment by either description for a term which may extend to three years and shall also be liable to fine. However, there is an exception regarding the disclosure of the identity of the Juvenile, officer in-charge of Police Station/I.O. (acting in good faith for the purposes of such investigation), and a person with the authorization in writing of the juvenile or the next-of-kin of the juvenile.
  • Report of Probation Officer: It is a Social Investigation Report and also a double check on the Report. The probation officer shall assist and work on a report on the direction of the Juvenile Court within such time as may be directed the Court at any stage of the procedure. It recommends the possibility of sending the juvenile to the Juvenile Rehabilitation Centre or release on probation.
  • Rehabilitation of Juveniles: Observation homes and Juvenile Rehabilitation Centers for the reception of juveniles, including separate centers for female juveniles, shall be established and maintained.

In theory, the Act fulfils the purpose of rehabilitating juveniles. However, the ground reality indicates that there are some issues to resolve; for instance, there is insufficient physical infrastructure (rehabilitation centers, observation homes), and committees are late notified, as in the capital city, the committees were notified in 2022. Moreover, the rules are yet to be notified in a single province, despite the fact that Peshawar High Court and Lahore High Court writ petitions are pending that require that rules be notified. Moreover, the law requires, and it is also the need of the hour, that there be exhaustive training sessions for justice sector actors on JJSA, 2018.

In short, JJSA 2018 provides a much better structure for social integration and criminal justice for juvenile offenders. The objects and basic purpose of the Juvenile Justice System Act, 2018 are the reformation and rehabilitation of juveniles and their social integration, and as a result, it will improve society at large.

Sharafat Ali Chaudhary is the Chairperson at the School for Law and Development

Rabia Mustafa is the Senior Research Fellow at the School for Law and Development

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