What is the purpose of Juvenile Justice?
At the outset, the juvenile justice system is similar to the adult criminal justice system in that it includes processes such as arrest, detention, petitions, hearings, adjudications, dispositions, placement, probation and reintegration. However, the fundamental difference lies in the level of responsibility and rehabilitation potential of juveniles.
The goal of a separate juvenile justice system is to divert juvenile offenders from the destructive punishments of the criminal courts and to encourage rehabilitation based on the individual needs of the juvenile and the successful reintegration of juveniles into the community.
Determining a Juvenile?
The term ‘juvenile’ refers to any person who has not yet reached the age of majority. Therefore, the criteria for determining a juvenile may vary from jurisdiction to jurisdiction. In Pakistan, the age of majority is set at eighteen years. A juvenile offender is a person under the age of eighteen who has come into contact with the law because he or she has committed or is accused of committing an offence. The juvenile justice system is based on the belief that children are fundamentally different from adults in terms of dependency, responsibility and rehabilitative potential (SPARC “Juvenile Justice System”).
Provincial Data on Juveniles in Jails
As of March 2022, the number of juveniles in Punjab jails totaled 645 with over 523 being under trial whilst 122 have been convicted. Similarly, Khyber Pakhtunkhwa holds around 331 who juvenile inmates who are undertrial while 13 convicted juveniles, Sindh holds 331 juvenile inmates who are under-trial and 53 convicted juveniles and Balochistan holds 8 under-trial juvenile inmates and 5 convicted juveniles in Balochistan (Naz). However, it is important to note that the actual number of juveniles in conflict with the law is greater than what has been recorded the prison data does not capture children because children who have been released on probation and/or on bail.
International Human Rights Legal Framework
UN Convention on the Rights of Child (UNCRC)
Pakistan ratified the UN Convention on the Rights of the Child in 1990. Article 40 of the CRC states: “A child in conflict with the law has the right to receive treatment which promotes the child’s sense of dignity and worth, takes the child’s age into account and aims at his or her reintegration into society. The child is entitled to basic guarantees as well as legal or other assistance for his or her defence. Judicial proceedings and institutional placements shall be avoided wherever possible.”. Article 37 prohibits torture, imprisonment with adults, death sentence, and life imprisonment for children. More specifically, Article 37(a) provides that “neither capital punishment nor imprisonment for life without possibility of release shall be imposed for crimes committed by persons below 18 years of age”.
International Covenant on Civil and Political Rights
Pakistan ratified the International Covenant on Civil and Political Rights on 23rd June 2010. Article 2 provides that accused juveniles shall be separated from adults and brought as speedily as possible for adjudication. Likewise, Article 3 emphasizes that juvenile offenders shall be kept separate from adults and shall be accorded treatment appropriate to their age and legal status.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
Pakistan ratified the UN Convention Against Torture on 23rd June 2010 which obliges the state to take effective legislative, administrative and judicial measures to prevent torture. Article 11 specifically obliges state parties to systematically review interrogation rules, instructions, methods and practices and arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment, with a view to preventing any cases of torture. Article 12 provides that State Party shall ensure that a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed.
Other Treaties and Rules on Juvenile Justice System
Other international Conventions and rules that are Applicable to the legal framework governing Juvenile Offenders include the U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) , UN International Covenant on Economic, Social and Cultural Rights (ICESCR) UN Convention on the Rights of Persons with Disabilities (CRPD), United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules, Nov. 29, 1985), United Nations Rules for the Protection of Juveniles Deprive of their Liberty (The Havana Rules, Dec. 14, 1990) and United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines, Dec. 14, 1990)
Pakistan’s Legal Framework for Juvenile Offenders
Constitution of Pakistan, 1973
The Constitution of Pakistan offers a sturdy foundation for the special protection of children. Article 9 provides that “no person shall be deprived of life or liberty save in accordance with law. Similarly, Article 10 entrenches special safeguards on arrest and detention whereby “no person shall be detained in custody, without being informed of the grounds of arrest, nor shall be denied the right to consult or be defended by a legal practitioner of his choice”. Article 10 (2) expressly states that every person who is arrested and taken in custody shall be produced before a magistrate within 24 hours. Article 10 A entitles a person accused of a criminal act with the right to fair trial and due process. Articles 9 to 13 protects against Retrospective, Double Punishment and Self Incrimination. Article 14 entrenches the dignity of a man as an inviolable right. Article 25(3), which establishes the fundamental right of equality for all citizens, states that nothing shall prevent the State from providing special protection to women and children. Similarly, Article 35 obliges the state to protect the child.
Pakistan Penal Code, 1860
Section 82 of the Pakistan Penal Code, 1860 sets the minimum age of criminal liability to under 10 years. Section 83 provides that nothing is an offence which is done by a child aged between 10 to 14 if he has not attained sufficient maturity to understand the nature and consequences of his conduct on that occasion. Section 299 makes a distinction between a minor and an adult. Sub-section (a) of Section 299 defines an adult as a person who has attained the age of eighteen whereas subsection (i) of Section 299 defines a minor as a person who is not an adult. Section 306 (b) provides immunity against death sentence where the minor has committed a murder. Instead, Section 307 provides that the punishment shall be diyat (compensation) when the offender is a minor which shall be payable either from his property or the person determined by the court. Section 377M provides that the offence of hurt shall be liable to qisas where the offender is a minor.
Code of Criminal Procedure, 1898
Section 29B provides jurisdiction in case of juvenile offenders. It states that an offence other than that punishable by death or life imprisonment, which is committed by a person who is under fifteen years, may be tried by any Judicial Magistrate Section 399 provides that when any person under the age fifteen is sentenced for imprisonment, the court may direct that such person shall be confined in any reformatory established by the Provincial Government as a fit place for confinement. Section 497 provides that any person under the age of sixteen may be released on bail in non-bailable offences.
Qanoon-e-Shahadat Order, 1984 (Law of Evidence)
With reference to the testimony of a minor, Article 3 of the QSO 1984 expressly provides that if a person is not able to understand the question put to them or give rational answers, due to tender age, he/she shall not be treated as a competent witness.
The Police Order 2002
The Police Order 2002 aimed to reform the police in a way that it could function according to the “Constitution, Law and Democratic Aspirations of people of Pakistan”. While Chapter II details the responsibilities and duties of the police, Article 4 imposes a duty on the police to ensure that the rights and privileges, under the law, if a person taken in custody are protected. Likewise, Article 4 (k) obliges police to ensure that the information of a person arrest is promptly communicated to a person of his choice. Article 156 imposes penalty on an officer who inflicts torture or violence upon a person in his custody.
Juvenile Justice System Act, 2018
The government of Pakistan passed the Juvenile Justice System Act in May 2018 (JJSA 2018). The law is enforced throughout Pakistan. With its passage, the JJSA 2018 repealed the Juvenile Justice System Ordinance of 2000. According to experts, the new law provides a better system for criminal justice and social reintegration of juvenile offenders.
Salient Features of Juvenile Justice System Act, 2018
SPARC has released a report highlighting the key features of the Juvenile Justice Act 2018, including free legal aid for children, establishment of an exclusive juvenile court, improved procedures for arrest, release of a juvenile on bail, determination of age by a police officer, etc. Full report is available here.
Advocate Wajahat Ali Malik has also highlighted the features in his article published in Daily Times published on September 7th 2018. Read the Article here.
Institutional Framework for Juvenile Offenders in Pakistan
Police/ Provincial Police Departments
The police are usually the first point of contact when a child is arrested or accused of a crime. They are responsible for arresting children suspected of an offense, conducting an investigation, referring children to a probation officer and protecting children’s rights.
Probation Officer/ Provincial Probation And Reclamation
Probation officer plays a crucial role in the rehabilitation of juvenile offenders in Pakistan. They assess the offender’s needs, supervise and manage the rehabilitation programme, provide counselling and referral to appropriate services, and report regularly to the juvenile court. Their aim is to help juvenile offenders reintegrate into society and prevent further offending.
Juvenile Courts
Juvenile courts are specialised courts that deal exclusively with cases involving children who have committed offences. These courts are established under the Juvenile Justice System Act (JJSA) 2018.
Provincial Prison Departments
In Pakistan, provincial prison departments are responsible for the management and administration of prisons throughout the country. The main role of the department is to ensure that prisoners are held in safe and humane conditions and that their fundamental rights are protected. All children currently detained in the various prisons of Pakistan are under the control of the provincial prison departments.
Juvenile Justice Committees
Under JJSA 2018, the Government will establish the Juvenile Justice Committee for each division in consultation with the concerned Sessions Judge n. The Committee shall consist of 4 members including a sitting Magistrate with powers prescribed under Section 30 of the Code of Criminal Procedure, a district public prosecutor, a member of the local Bar with at least 7 years of experience and a serving Probation Officer or social welfare officer not below BPS -17. The committees are responsible for inspecting observation homes and juvenile rehabilitation centres and issue directions to the competent authorities for welfare and social reintegration.
Provincial Social Welfare Departments
The social welfare departments in each province are also responsible for the care and rehabilitation of juvenile offenders. Services vary from province to province, but departments are mandated to provide rehabilitation services, including counselling, education and vocational training.
Federal Ministry of Human Rights
Ministry of Human Rights in Pakistan plays an important role in promoting and protecting human rights, including child rights. Its mandate includes promotion and protection of human rights, policy formulation, advocacy and awareness-raising, international cooperation, research and analysis, and provincial coordination. The Ministry of Human Rights has regional offices in all provinces of Pakistan.
National Commission on the Rights of Child (NCRC)
The National Commission on the Rights of Child (NCRC) is an independent statutory body established under the National Commission on the Rights of Child Act 2017 in Pakistan. The NCRC is responsible for ensuring the protection and promotion of the rights of children in Pakistan.
Gaps in Juvenile Justice System in Pakistan
There are several gaps in Pakistan’s juvenile justice system that hinder the fair treatment of juveniles who come into contact with the law. Some of these gaps include:
Lack of Legal Representation and Probation Officers
Many children and adolescents in Pakistan do not have access to legal representation, which can make it difficult for them to assert their rights and defend themselves in court. This can lead to unjust outcomes and further undermine their ability to receive fair treatment under the law.
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.
Recently, 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.
As the Lahore High Court highlighted in Saqlain VS State, Etc,
“Irrespective of the fact whether the issue of the age of an accused person is or is not raised before the Court, it is the obligation of the learned Presiding Officer to suspend all further proceedings in a trial and to hold an inquiry to determine the age of an accused person if and whenever it appears to him that such a determination was necessary. Whenever a Court is confronted with the question of the age of an accused person, it is incumbent upon it to hold an, inquiry and the learned Presiding Officer should always feel free to requisition the original record; to summon and examine the authors and the custodians of such record and documents to determine the genuineness of the same; to, summon persons, if need be, who on account of some special knowledge, could depose about the age of the concerned accused person and to take such other and further steps which could help the Court in reaching a just conclusion about the said matter. Medical report/ossification test about the age of an accused person was a further aid placed at the disposal of a Court of law for the purpose of determining the age of an accused person. The opinion of medical experts could offer a valuable guide to a learned Presiding Officer in resolving the controversy in issue. Therefore, whenever, a question of the age of an accused person is raised or arises, he must be subjected to a medical test unless strong reasons existed or could be offered for not doing so.”
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”).
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. Other provinces and autonomous regions lack such safeguards for juveniles. 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).
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.
The previous section also highlights the lack of adequate female probation officers to monitor the female juveniles who are mostly released on probation.
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. 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. This 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.
Recommendations
Parliamentarians and Policy Makers
- Amend Pakistan’s Penal Code to raise the minimum age of criminal responsibility to 14 years.
- Amend the Anti-Terrorism Act to exclude juveniles from the jurisdiction of anti-terrorism courts
Government Departments including Law Enforcement Agencies
- Rules of business of JJSA 2018 must be notified by all provinces.
- It is important to standardise the process of age determination by introducing standard operating procedures
- Designate a dedicated focal officer for juvenile victims in each police station and post information in Urdu about rights and procedures regarding juvenile victims and information about complaint cells in a central location in all police stations.
- It is crucial that juveniles receive adequate legal aid, as they are unable to defend themselves in court and are often unaware of their rights. Therefore, the state should provide sufficient resources to adequately remunerate lawyers responsible for enforcing children’s rights.
- Alternatively, the establishment of the fund under the Legal Aid and Justice Authority Act, 2020 must be expedited to remunerate lawyers and pay costs. The Authority should ensure that advocates from the panel should be appointed “by default” for juvenile cases instead of applying for it, especially for children from lower socio-economic backgrounds who cannot afford legal fees.
- The state should expedite the establishment of juvenile courts in every district. In the meantime, the existing juvenile courts must be supported with sufficiently trained judges, prosecutors, investigators, probation officers, medico-legal officers, psychologists and child rights experts to decide cases within six months. The courts must also provide adequate safeguards to ensure the child’s right to privacy and a closed hearing.
- Strengthen and digitalise the police juvenile offender database and categorise data by gender, age, offence, sentence, geographical origin and prison.
- Child protection workforce in provinces can play an important role in supporting juvenile offenders, even though law enforcement is the primary agency responsible for dealing with them. By addressing underlying issues and providing support and rehabilitation services, child protection officers and social workers can help reduce the number of juvenile offenders and create a better future for them.
- The Police Order 2002 needs to be implemented in true spirit in Islamabad Capital Territory to ensure accountability in cases where protocols stipulated under the Juvenile Justice Act 2018 are not followed.
- A robust mechanism must be established for the regular inspection of jails, Youth Offenders Industrial School (YOIS)s, borstal institutes, remand home (Sindh)s where juvenile offenders are held.
References
(1) “Legal Aid, Justice Authority Established To Provide Assistance To The Poor, Senate Told”. Radio Pakistan, 2022, https://www.radio.gov.pk/01-02-2022/legal-aid-justice-authority-established-to-provide-assistance-to-the-poor-senate-told.
(2) Ahmed, Shakeel et al. “Perceptions Of Probation Officers About Juvenile Justice System In Khyber Pakhtunkhwa, Pakistan”. Pakistan Journal Of Criminology, vol 13, no. 4, 2021, pp. 131-142.
(3) Ali Shah, Sardar et al. “Restorative Juvenile Justice System In Pakistan: An Overview”. International Journal Of Criminal Justice Sciences, vol 15, no. 2, 2020.
(4) Ali, Sarmad. “Unearthing The Facts About Children Facing The Most Severe Penalties In Pakistan – Penal Reform International”. Penal Reform International, 2021, https://www.penalreform.org/blog/unearthing-the-facts-about-children-facing-the-most/. Accessed 14 Aug 2022.
(5) Aurangzeb, Hamza, and Saif Kakakhel. Young People In Prisons Pathways For Rehabilitation And Reintegration. National Dialogue Forum, Islamabad, 2020.
(6) CRIN. “Minimum Ages Of Criminal Responsibility In Asia”. Child Rights International Network, https://archive.crin.org/en/home/ages/asia.html.
(7) Group Development Pakistan. National Infographic Report On Justice For/With Children. Group Development Pakistan, Islamabad, 2021, https://gdpakistan.org/wp-content/uploads/2020/10/National.pdf. Accessed 9 Aug 2022.
(8) Idris, Iffat. (2021). Increasing birth registration for children from marginalized groups in Pakistan. K4D Helpdesk Report. Brighton, UK: Institute of Development Studies. DOI: 10.19088/K4D.2021.102
(9)Iftikhar, Kashif. “Does a Juvenile Get a Better Law This Time – A Comparative Review of the New & Old Juvenile Laws of Pakistan.” LUMS Law Journal, 6, 2019, pp. 102-108. HeinOnline.
(10) JPP. Death Row’s Children Pakistan’s Unlawful Executions Of Juvenile Offenders. Justice Project Pakistan, Lahore, 2017, https://www.jpp.org.pk/wp-content/uploads/2017/10/Death-Rows-Children.pdf. Accessed 11 Aug 2022.
(11) Law & Justice Commission of Pakistan. REFORMING THE JUVENILE JUSTICE SYSTEM. Law & Justice Commission of Pakistan, Islamabad, http://www.ljcp.gov.pk/Menu%20Items/Publications/Reports%20of%20the%20LJCP/reports/report30.htm. Accessed 26 Sept 2022.
(12) Mahmood, Asif. “Notification On Formation Of Juvenile Justice Committees Issued”. The News, 2021, https://www.thenews.com.pk/print/851836-notification-on-formation-of-juvenile-justice-committees-issued. Accessed 9 Aug 2022.
(13) Malik, Usama. “Pakistan’s Juvenile Justice”. Courting The Law, 2018, https://courtingthelaw.com/2018/11/06/commentary/pakistans-juvenile-justice/.
(14) Malik, Wajahat Ali. “The Juvenile Justice System and the Right to Dignity of Juvenile Offenders in Pakistan.” Pakistan Law Review, 10, 2019, pp. 141-168. HeinOnline.
(15) Naz, Hira. “The Rotten Juvenile Justice System In The Country”. Daily Times, 2021, https://dailytimes.com.pk/803097/the-rotten-juvenile-justice-system-in-the-country/. Accessed 14 Aug 2022.
(16) Shahid Shafiq, Muhammad, and Iqbal Ahmed Detho. Toolkit Juvenile Justice System In Pakistan. UNODC.
(17) SPARC, 2019, The State of Pakistan’s Children – 2019. SPARC, Islamabad.
(18) SPARC, 2020, The State of Pakistan’s Children – 2020. SPARC, Islamabad.
(19) SPARC. Juvenile Justice System. SPARC, Islamabad, https://www.sparcpk.org/images/SOPC2020/JJ.pdf. Accessed 14 Aug 2022
(20) SPARC. The Juvenile Justice System Act 2018. SPARC, Islamabad.
Contributors
Authors: Sakina Zulfiqar Ali and Mubashir Hussain
Edited by: Advocate Laiba Qayyum
Additional Input: Qindeel Shujaat
More on Juvenile Justice System
