While the JJSA, 2018 is a comprehensive law geared towards providing special protection to children in conflict with the law, its implementation has been abysmally poor, leaving hundreds of children unprotected. A major cause of delayed implementation is the pending enactment of new Rules of Business for carrying out the provisions of the JJSA following the repealing of previous Rules associated with the JJSO (i.e. resource allocation, specialized training for police and judiciary, and establishing Juvenile Courts, Juvenile Rehabilitation Centre and Juvenile Justice Committees). Further manifestations of poor implementation of the JJSA are relayed in detail below.
Legal Assistance and Probation Officers
Section 3 of the JJSA mandates the state to provide legal assistance at its own expense to every juvenile or child who is a victim of an offense. Legal assistance is a right guaranteed to a juvenile but is often denied to them. The right to legal aid for children in conflict with the law should apply at all stages of the proceedings, whereas in practice, access to legal aid is very limited during the investigation phase and especially during police custody. The issue stems from the absence of a referral mechanism between the police and lawyers. Additionally, Justice Project Pakistan (JPP) reported that a lack of budgetary allocation leads to meager remuneration which renders the panel of lawyers constituted by provincial governments inefficient in realizing the juvenile’s right to legal assistance.
JPP further reported that around 89% of juveniles charged with bailable offenses are in jail due to the State’s failure to provide them with a lawyer. This problem accentuates the divide between the socioeconomic classes as children from upper to middle class backgrounds can afford legal assistance. Whereas, children from poorer backgrounds have a higher risk of remaining without legal aid for a longer period of time as the legal aid system is largely based on pro bono services provided by lawyers from the relevant bar association or civil society organizations. Furthermore, juvenile offenders may be tried as adults and sentenced to life imprisonment or death due to a combination of a lack of awareness of juveniles of their rights, the investigation officer’s inability to determine the age of the juvenile, and the inability to move the court to do so due to an absence of legal assistance.
The Legal Aid and Justice Authority has been established as per the Legal Aid and Justice Authority, 2020 to provide legal, financial and other aid to the poor and vulnerable segments of the society. While the Act envisages a fund to finance costs related to legal cases and the salaries of advocates and volunteers, legal aid is currently being provided by probono lawyers as financial and funds rules of the Authority have been sent to the Finance Division for approval (“Legal Aid”). The proper operationalization of this Act will ensure that juveniles from lower socio-economic backgrounds get equal access to the law.
Section 5 of the JJSA instructs the police officer to inform the concerned probation officer, along with the guardian, about the arrest of a juvenile. However, Penal Reform reported that of the 87 cases evaluated in Punjab, only one case involved a probation officer in its judicial proceedings (Ali). Such an omission is extremely detrimental and can render the juvenile system completely ineffective due to the pivotal role played by probation officers. The probation officer is responsible for preparing a report for the Juvenile Court to determine his/her character, educational, social and moral background. Probation officers are also responsible for reporting any voluntary admission of guilt or any evidence to prove that the juvenile committed the offense (Ali et al. 277).
Furthermore, the probation officer also plays a role in mediation and compromise between the victim and the offender, and the possibility of settlement, sending the juvenile offender to a Rehabilitation Centre, or probation. One possible reason why the police fail to involve probation officers is to reduce the chances of involving the latter in the former’s corruption (such as releasing a juvenile offender by collecting bribes from his/her family) (Ahmed et al.). Furthermore, the number of probation officers is very low and poor infrastructural support often translates to poor coordination between police and probation officers. Conversely, the social welfare system across Pakistan lacks ‘proactive initiative taking capacity’ possibly due to a lack of capacity-building workshops and insufficient awareness of JJSA and child rights (Ali).
Release of a juvenile on bail
Section 6 of the JJSA demands that a juvenile arrested or detained for a major or minor offense be treated as if he was accused of committing a bailable offense. However, police officers rarely grant bail (Aurangzeb, and Kakakhel). Furthermore, Section 6(5) of the JJSA states that if a delay in the trial of an accused juvenile is not occasioned due to the act of the accused or any other person acting on his behalf then the accused becomes entitled to the concession of bail as a matter of right if he has been detained for a continuous period exceeding six months. The Lahore High Court highlighted in Waleed Hassan VS The State And Another that, “To have a speedy trial, is the fundamental right of accused being universally acknowledged.” However, many juveniles spend long periods behind bars without the conclusion of a trial. Only a minority of juveniles can acquire legal assistance to seek relief from the Courts for post-arrest bail as per the law. For instance, the Court granted post-arrest bail to the applicant in Muhammad Umar VS The State Etc [2021 LHC 600] and Waleed Hassan VS The State And Another [2020 LHC 1543]. Essentially, the irresponsibility of the police in detaining juveniles for more than six months, coupled with the failure of the judicial system to conclude a trial within that period leads to many children spending long periods in detention. Here, many of their rights are violated as they suffer from abuse, neglect, inadequate food, poor health services, and exposure to the risk of HIV or other STDs (SPARC “2019”).
Determination of Age
Section 8 of the JJSA lays out the mechanism for determining the age of an accused person appearing or claiming to be a juvenile. It is the statutory duty of the investigation officer to initially determine the age of the accused followed by the court of general jurisdiction in the absence of the former. The age is to be determined based on birth certificates, educational certificates, or any other pertinent documents. In the absence of the aforementioned documents, age may be determined by a medical examination report by a medical officer. While seeming robust at first glance, this section faces a lot of impediments in realizing its implementation in true essence.
Firstly, investigation officers, and even trial courts, fail to determine the age of an accused properly, if done at all. In Dost Muhammad VS The State Etc [2020 LHC 354], one of the documents provided by the accused was incorrect but the investigation officer didn’t pursue a medical examination to resolve the inconsistency. Neither did the trial court order for medical examination. A similar situation arose in [2021 P Cr. L J 1032], where the trial court failed to order a medical test to resolve the inconsistency in age between two documents.
Similarly, in Sher Bahadur’s case reported in 2015 SCMR 955, the Honorable Supreme Court set aside the judgment passed by the High Court in which the conviction of the accused was set aside while declaring him juvenile based on school leaving certificate and CNIC without due verification of their genuineness and authenticity. The matter was remanded to the High Court for its hearing afresh, after calling for an ossification report of the accused through the medical board of specialist doctors in the required field.
Failing to accurately determine the age of the accused has resounding consequences whereby either a minor is given a sentence of an adult impacting his/her growth and reintegration into society, or an adult is tried as a juvenile and the victim isn’t given due justice.
However, the issue with age lies not only in the procedure but in the system itself. A significant impediment to the delivery of juvenile justice is the dismal lack of birth registration in Pakistan. Pakistan has one of the lowest rates of birth registration in the world- the PDHS 2017-2018 reported that 42% of children below the age of five were unregistered (Idris). Birth registration is a fundamental human right that not only acknowledges the child’s existence but also enables the activation of special protection or access to resources. Article 7 of the CRC stipulates that every child has the right to be registered at birth without discrimination. Birth registration is pivotal in ensuring that a child is not treated as an adult when they come into conflict with the law. Failure to register birth on time means that the juvenile justice system carries a high risk of wrongful arrests, detention, and execution of juveniles. There is a significant disparity in registration rates between the different provinces and socio-economic backgrounds. Consequently, juveniles from lower socio-economic backgrounds are more likely to be victims of wrongful arrests.
While the statute and case law offer medical examination, most commonly via an ossification test, as an aid in determining the age of the accused, many problems arise with testing age through medical procedures. Firstly, imaging of teeth and bones was not designed to assess disputed chronological age but for diagnosing and monitoring disorders of growth and hence, can only provide an estimate rather than give a precise indication (JPP 29). Secondly, the assessment is operative only in the presence of images from control subjects of the population from which the person originates and who exhibit standards of normality. However, these standards are unavailable in our region and it is inappropriate to compare with standards from European or North American children. Henceforth, reliance on objective evidence to verify age such as through untampered birth registration certificates is vital.
Diversion through Juvenile Justice Committees
One of the salient features of the JJSA, 2018 was the introduction of the concept of diversion through the Juvenile Justice Committees (JJC). Diversion is an alternative process of determining the responsibility and treatment of juveniles based on their socio-cultural, economic, psychological, and educational background without resorting to formal judicial proceedings. It is applicable for both major and minor offenses (except for juvenile offenders who are older than 16 years and have committed a major offence). The JJC is empowered to dispose of cases by resorting to different diversion modes under Section 9(4), including community service. Diversion measures offer a juvenile offender an alternative to a criminal record and protect him/her from abuse, violence, and drug and substance abuse that are endemic in prison.
However, GDP reports that as of June 2020, out of the 584 children tried in the pilot courts, only four children availed diversion- all being male. One of the reasons for the poor implementation of disposal of cases through diversion is the lack of establishment of JJCs. This issue was highlighted by Imkaan Welfare Organization in their petition reported 2020 SHC 1144 where it was reported that three districts in Sindh had yet to establish JJCs. Similarly, the Punjab Home Department had only recently issued a notification for establishing JJCs in all districts (Mahmood). Imkaan Welfare Organization also relayed concern over the fact that although JJCs had been established in Sindh, they were not
performing their duties diligently as per Section 10(4) of the JJSA. For instance, UNODC reported that although JJCs have been empowered to inspect detention conditions in observation homes and rehabilitation centers, they are not as focused on the element of correction (Shahid Shafiq, and Ahmed Detho).
Furthermore, JJCs are mandated to perform very complex tasks that require sensitivity, communication, behavioral management, dispute resolution, and other soft skills. However, there is no established formal avenue for providing specialized training to develop the skill set necessary to interact with juvenile offenders and ensure their reformation and reintegration into society (SPARC “JJSA 2018”).
Observation Homes, Juvenile Rehabilitation Centers, and Police Brutality
The JJSA introduces additional safeguards of arrest and detention for juveniles with the introduction of observation homes under Section 5. An observation home is a place where a juvenile will be held temporarily after the arrest, on remand, or during any inquiry or investigation. The underlying purpose is to ensure that children are not detained with adult offenders or at an ordinary police station where they can be subject to abuse. However, there are slight deficiencies in the law and its implementation.
Firstly, the JJSA leaves several questions unanswered regarding observation homes such as defining the entity responsible for running the observation homes, defining whether it will be an independent entity or a specially appointed place in the police station, and everything that an observation home needs to be equipped with (Iftikhar 7).
Secondly, there is an abysmal scarcity of observation homes or special lockups for juveniles in Pakistan. This is due to a lack of adequate infrastructure or due to the distance between police stations and District or Taluka headquarters (Shahid Shafiq, and Ahmed Detho). Consequently, juveniles are either housed with adult prisoners or in separate barracks, both of which can lead to abuse and exploitation by adult prisoners or prison staff.
Thirdly, all sorts of cells, including Borstral jails, are extremely overcrowded which carries great risks including the transmission of infectious diseases. Despite a liberal judicial regime that grants bails, the reality is that most accused juveniles spend more time in prison than the sentence for the crime which they committed (SPARC “JJSA 2018” 7).
Regardless, Section 16(2) of the JJSA prohibits committing juvenile offenders to prison, handcuffing them, putting them in fetters, ordering them to labour, or giving them any corporal punishment. However, police brutality is a recurrent feature in Pakistan’s policing system (W.A. Malik). The lack of written guidelines or standard operating procedures (SOPs) when it comes to child-friendly handling by police officers further aggravates the problem.
Similarly, the State is yet to notify Juvenile Rehabilitation Centers (Iftikhar 7), and the former Borstal Institutions have yet to be upgraded into rehabilitation centers. Punjab has a total of two juvenile prisons called Borstal Institution and Juvenile Jail (BIJJ) in Bhawalpur and Faislanbad (W.A.Malik 160). Sindh has a total of five juvenile prisons called Youthful Offenders Industrial School (YOIS), each in Karachi, Hyderabad, Dadu, Sukkur, and Larkana (160). Other provinces and autonomous regions lack such safeguards for juveniles (160). The lack of adequately equipped juvenile holding facilities or Juvenile Rehabilitation Centers (JRC) is extremely concerning. Furthermore, SPARC reported that these institutions/jails lack basic amenities such as adequate sanitation and safe drinking water. For instance, Ashar Hafeez, a former juvenile offender released after serving a four years sentence reported that the rehabilitation process in current jails is a mere pretense (Rasheed). He reported that there weren’t sufficient numbers of teachers available for juveniles who wished to pursue education (Rasheed), directly violating their fundamental right to education enshrined under Article 25A of the Constitution. Furthermore, there is barely any psychological help provided to these children to help deal with their trauma due to the lack of sufficient psychologists present (Rasheed). The lack of adequate rehabilitation facilities holds the risk of turning these children into hardened criminals, which is not only dangerous to society but a disservice to and a violation of a child’s rights. Additionally, JRCs were meant to be run by non- uniformed personnel but are still managed by a ‘uniformed and unspecialized cadre of prison officials’ (Shahid Shafiq, and Ahmed Detho). A redressal of all these concerns will encourage tvailing diversion. Between December 2017 and September 2021, only 661 children availed diversion (GDP 7).
Bringing in a gendered perspective, Sarah Belal, founder of JPP highlights how a scarcity of exclusive female prisons means that many women are placed in the female wing of larger prions (Aurangzeb, and Kakakhel). It is dangerous to house juveniles with hardened criminals. Furthermore, the socio-cultural norms of Pakistan prevent most female juvenile offenders from being incarcerated (Aurangzeb, and Kakakhel). Thus, they are put on probation. However, Pakistan doesn’t have enough female probation officers to ensure compliance with the conditions of probation (Aurangzeb, and Kakakhel).
Release on probation
Section 14 governs social investigation report that has to be prepared by a probation officer. The Social Investigation Report is so significant that can lead to a pretrial acquittal. However, the law merely provides the content of the Social Investigation Report but fails to provide any guidance for the probation officer which he could use to reach a conclusion. The absence of any guidance on the criteria that the probation officer shall follow to reach a conclusion exhausts the rationale behind the social investigation report. Section 15 of the JJSA empowers the Juvenile Courts to order the release of a juvenile on probation for good conduct. Probation allows juveniles to remain in their communities while being under the observation of the court. Often, juveniles are required to follow certain conditions while on probation. The primary purpose of releasing juveniles on probation is to assist them in reforming/correcting their behavior without isolating them from their communities, especially because children rely on their guardians for shelter and guidance.
However, the current probation system in Pakistan has several shortcomings which hinder its ability to reintegrate children back into society (SPARC “Juvenile Justice System”). Firstly, the existing probation system lacks a strong physical presence and efficient means of communication which renders it ineffective for basic community rehabilitation work. This is primarily because of the weak allocation of funds. Furthermore, probation officers don’t visit probationers at their places of residence because they aren’t provided with transport facilities. Additionally, the low salaries, slow career progression, and excess workload of the staff in the probation system disincentivises commitment and motivation. Lastly, there is a lack of research and study on the probation system in Pakistan to act as the foundation for future changes.
Juvenile Courts
Section 4 of the JJSA, 2018 stipulates the establishment of special Juvenile Courts. While the implementation rate was very slow, there has been recent improvement with the establishment of pilot Juvenile Courts in every province. As of September 2021, there is one juvenile court in Balochistan, nine in Khyber Pakhtunkhwa, three in Sindh, and one in Punjab (Group Development Pakistan). GDP reports that the national average time of case disposal in the pilot juvenile court is 128 days, which is less than the 6 months granted under Section 4(8) of the JJSA. This is a hopeful sign and should be an impetus for the State to expedite the establishment of child courts in more districts. For instance, Punjab only has one exclusive juvenile court in Lahore despite having the largest population. The average case disposal time is higher in Lahore due to the volume of cases transferred to the Lahore juvenile court which had already been pending for a while in another session court. Furthermore, presiding judges of the juvenile court were busy with other assignments (4). Essentially, while juvenile courts have been notified they are not exclusive and often other trials take place in the same premises. Additionally, there is no special requirement for juvenile judges to receive any type of special training on juvenile justice or the physical, psychological, mental and social development of children and adolescents, as would be recommended by the Committee on the Rights of the Child. Consequently, judges presiding over juvenile courts are ill-equipped to adequately dispense justice to children. Law Reform Report No. 30 by the Law & Justice Commission of Pakistan also recommended ensuring proper orientation and training of all personnel who come in contact with juvenile offenders (Law & Justice Commission of Pakistan).
It is also worth noticing that no special measures are currently taken to protect the child’s right to privacy, such as closed hearings. This problem is aggravated due to a lack of awareness of the right to privacy in this regard. When such cases are reported in the media, personal information of the child is often quoted, which leads to stigmatization of the families and especially the child.
Minimum Age of Criminal Responsibility
The UNHRC benchmarked 14 years as the absolute minimum age for criminal responsibility (Aurangzeb, and Kakakhel). The assumption behind this benchmark is that the person can fully comprehend the nature of his/her actions and their consequences. The issue is further highlighted in UNCRC Committee’s general comment number 24 on the subject of children’s rights in child justice system, which was adopted in 2019. In the said general comment, the Committee declared the internationally accepted level of minimum age of criminal responsibility to at least 14 years of age and encouraged States to adopt the higher minimum age of criminal responsibility, which is 16 years onwards.
The Committee further declared that 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.
However, Section 82 of the Pakistan Penal Code sets 10 years as the age below which no act is considered an offense. Not only is this below the international standard, but also doesn’t reflect Pakistan’s socio-economic context. Most Pakistani juvenile offenders are from lower socio-economic backgrounds which limits their understanding of the complex nuances of the Pakistani legal system. Consequently, many children who do not fully understand their actions and their consequences are convicted and incarcerated whereby, more often than not, they are deprived of liberty and other rights such as access to education and healthcare. Pakistan is doing relatively better than its neighbors whereby India’s minimum age of criminal responsibility is 7 years as per section 82 of the Indian Penal Code; 9 years for Bangladesh as per section 83 of the Penal Code (CRIN).
However, countries such as Sri Lanka and China are performing much better by setting the minimum age of criminal responsibility to 12 years and 14 years respectively (CRIN). This should be an impetus for Pakistan to improve its laws.
The Threat of Execution of Juvenile Offenders
In claiming to have an overriding effect over other laws rather than being “in addition” to them, JJSA marked a significant improvement from the JJSO. However, confusion remains and further clarity is needed in light of Section 21-G of the Anti-Terrorism Act, 1997 which states that all offenses under the Act shall be tried exclusively by the Anti-terrorism Courts created under this Act.
Additionally, Section 32 of the ATA grants it an overriding effect over other laws which also conflicts with Section 23 of JJSA. This confusion holds the threat of sentencing juvenile offenders to life imprisonment or the death penalty, which directly contradicts JJSA.
Another factor that leads to the execution of juvenile offenders is the duo of poor implementation of age determination procedures and the low birth registration rates in Pakistan which has been discussed earlier.
However, recently the Lahore High Court passed a landmark judgment reported as ‘Muhammad Iqbal alias Bali Versus Province of Punjab through Secretary Home, Punjab and 6 others’ commuting the death sentence of a juvenile offender to life imprisonment. While juveniles shouldn’t be sentenced to life imprisonment, the judgment is still significant because the court allowed the writ petition filed by a condemned prisoner who was on death row for more than 20 years and all his appeals, reviews, applications and mercy petitions were rejected.
Court granted relief to the condemned by commuting his death sentence into life imprisonment. The condemned prisoner took the plea of juvenility at the time of commission of offence, benefit of a legislation (JJSO 2000 as well as the Presidential Notification dated 13.12.2001) and Article 37(a) of the UNCRC and the Article 6 paragraph 5 of the ICCPR, which were admitted by the Provincial Government (respondent). The court also held that it was unjust for authorities to keep on restricting uniform benefit of law as well as law to all similarly placed persons, on one excuse or the other.
