Rabia Mustafa* and Sharafat A. Chaudhry**
Before understanding the concept of ‘minimum age of criminal responsibility’, it is much needed to understand the concepts of crime, criminal, and criminal responsibility.
What is a Crime?
According to the Law Lexicon, ‘A crime is an act or omission which is prohibited by law as injurious to the public and or punished by the state. “Disobedience to a command or prohibition made with reference to a matter affecting public peace, order, or good government to which a sanction is attached, by way of punishment or pecuniary penalty, in the interest of the State by way of punishment or as a whole, and not by way of compensation for the injury which the act or omission may have caused to an individual”.
Who is a criminal?
The Australian Legal Dictionary defines criminal as a “1. Person convicted of an indictable crime or offence. 2. Of the nature of crime. Activities may be regarded as being criminal and appropriately prohibited or regulated by the criminal law for a number of reasons, including the idea that the activity is of such a heinous character that it should be stigmatised as being a crime, or that criminalization of the behaviour is the only practical way of regulating it. Whether behaviour is regarded as criminal depends, to some extent at least, on social, historical, and cultural factors”.
What is Criminal Responsibility?
Regarding criminal responsibility, the Australian Legal Dictionary defines it as, “the concept that individuals with the capacity to make voluntary and intentional choices to act criminally, understanding the significance of the choice, should be accountable to the criminal law for those choices. A person is criminally responsible if he or she performs a criminal act voluntarily and intentionally. And she or he understood the significance of the act.”
What is the Minimum Age of Criminal Responsibility?
The minimum age of criminal responsibility (MACR) is the age at which a child cannot be held criminally responsible for their actions and cannot be brought before a criminal court
Considering the definition of crime, criminal, criminal responsibility, and minimum age of criminal responsibility, it is pertinent to determine the age of criminal responsibility where a person understands the choice of his or her actions and the significance of it.
International Law
International law explains the age of criminal responsibility. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), 1985, in its rule 4.1 states, “In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.”
Convention on the Rights of the Child (CRC), 1989, in Article 40 3(a), recommends that the State Parties shall establish “a minimum age below which children shall be presumed not to have the capacity to infringe the penal law”.
Guidelines for Action on Children in the Criminal Justice System (1997), under specific targets, stressed birth registration and ensured that the true age of a child is ascertained by independent and objective assessment (para 12). Moreover, in para 13, it is recommended, “the age of criminal responsibility, civil majority, and consent as defined by national legislation, States should ensure that children benefit from all their rights, as guaranteed to them by international law, specifically in this context those set forth in articles 3, 37, and 40 of the Convention.”
Moreover, in General Comment No. 24 of CRC, paras 22 to 24, there is a detail on minimum age of criminal responsibility. In para 22, it is stated that the documented evidence shows that children aged 12 to 13 are still developing in terms of maturity and abstract reasoning due to ongoing brain development. Consequently, they may struggle to comprehend the consequences of their actions or grasp legal proceedings, compounded by the onset of adolescence. The Committee urges raising the minimum age of criminal responsibility to at least 14 years and discourages lowering it, emphasizing the importance of considering recent scientific findings. However, the committee, in para 24, recommended, “If there is no proof of age and it cannot be established that the child is below or above the minimum age of criminal responsibility, the child is to be given the benefit of the doubt and is not to be held criminally responsible.”
Regarding two minimum ages, General Comment No. 24 condemns it and it further elaborates that States parties that apply two minimum ages of criminal responsibility (7 and 14), assuming a child below the lower age lacks criminal responsibility unless maturity is demonstrated. This system, initially designed as a protective measure, has not proven effective and has been criticized for leaving court discretion and resulting in discriminatory practices (para 26). In para 27, the Committee urged State Parties to establish one appropriate minimum age for criminal responsibility, preventing any retrogressive legal reform. Also, the Committee emphasizes that children with developmental delays or neurodevelopmental disorders should not be in the child justice system, even if they reach the minimum criminal responsibility age, and should be individually assessed, if not automatically excluded (para 28).
General comment No. 24 (2019) on children’s rights in the child justice system, in para 22 state that research shows that children aged 12-13 years still develop their frontal cortex, making it difficult for them to understand the impact of their actions or criminal proceedings. Adolescence is a unique stage of human development, affecting risk-taking, decision-making, and impulse control. The Committee recommends States parties increase their minimum age to at least 14 years, and urges them not to reduce the minimum age of criminal responsibility under any circumstances.
MACR and the Status of Pakistan
Before 2016, the minimum age of criminal responsibility for juvenile delinquent was 7 years as defined in Section 82 of Pakistan Penal Code (“PPC”), “Nothing is an offence, which is done by a child under seven years of age.” Similarly, in Section 83, it was defined that nothing is an offence that is done by a child above seven years but under twelve years of age who has not attained sufficient maturity of understanding to judge the nature and consequences of his or her conduct at the time of the commission of offence.
The concluding observation on Pakistan’s combined third and fourth periodic report, submitted to CRC, in para 99(a), showed deep concerns that “The minimum age of criminal responsibility continues to remain very low (7 years)” and in para 100(c), it recommended to, “Raise the minimum age of criminal responsibility to an internationally acceptable level and ensure that children below the age of 18 years are accorded the protection of juvenile justice provisions and are not treated as adults.” Therefore, to fulfill international commitments, it was pertinent to raise the age of criminal responsibility in Pakistan.
The current status of MACR in Pakistan Penal Code
In 2016, Section 82 of PPC was amended through the Criminal Law (Second Amendment) Act, 2016. In this amendment, the age of criminal responsibility was redefined; now the age of criminal responsibility was set to be above 10 years but below the 14 years provided in the opinion of the judge, he or she has attained sufficient maturity.
Similarly, Section 83 of PPC was also amended through the Criminal Law (Second Amendment) Act, 2016 to provide further protection to juvenile delinquents from criminal responsibility, and it declared that nothing is an offence that is done by a child of immature understanding who is above ten and under fourteen years of age.
* The writer is a Linguist and Senior Research Fellow at the School for Law and Development
** The writer is an Advocate, an internationally accredited Mediator, and the author of Law and Development.
