On May 18 2018, the President of Pakistan approved the Juvenile Justice System Act (JJSA) 2018, which was passed by the Parliament in 2018. JJSA 2018 overcomes the shortcomings which were present in Juvenile Justice System Ordinance 2000, and provides a much better system for criminal justice and social reintegration for juvenile offenders. The Act defines a child according to the definition of UNCRC as ‘a person who has not attained the age of eighteen years’.
JJS Act 2018 classifies the criminal offences into following three different categories: 1) Minor, which means an offence for which maximum punishment under the Pakistan Penal Code, 1860 is imprisonment for up to three years with or without fine. A juvenile is entitled to bail in minor offences, with or without surety bonds by Juvenile court. 2) Major, which means an offence for which punishment under the Pakistan Penal Code, 1860 is imprisonment of more than three years and up to seven years with or without fine. Bail shall also be granted in major offences with or without surety bonds by juvenile court. 3)Heinous, which means an offence which is serious, brutal, or shocking to public morality and which is punishable under the Pakistan Penal Code, 1860 with death or imprisonment for life or imprisonment for more than seven years with or without fine. A juvenile of less than sixteen years of age is entitled to bail in heinous offences, but a bail is on discretion of court if juvenile is more than sixteen years of age.
The JJSA 2018 is very different from JJSO 2000, and the following are some of its salient new features. 1) Right of legal assistance: every juvenile or child victim of an offence shall have the right of legal assistance at the expense of the State. A juvenile shall be informed about his right of legal assistance within 24 hours of taking him into custody.
2) Observation home: this means a place where a juvenile is kept temporarily after being apprehended by police as well as after obtaining remand from juvenile court or otherwise for conducting inquiry or investigation. Observation Homes shall be made separately from police stations.
3) Juvenile rehabilitation centres: this is a special kind of prison established exclusively for keeping juvenile offenders. The convicted juvenile, shall be confined to the premises till the completion of period of imprisonment or until they turn 18 years of age. Here convicts can receive an education as well as vocational or technical training for their development and includes certified institutions including women crises centres.
4) Determination of age mechanism: JJS Act 2018 makes it compulsory upon the ranking officer-in-charge, or the investigation officer, to make an enquiry to determine the age of any such alleged offender, who physically appears or claims to be a juvenile. Age shall be determined on basis of accused person’s birth certificate, educational certificates or any other pertinent documents. In absence of such documents, age of such accused person may be determined on the basis of a medical examination report by a medical officer.
5) Disposal of cases through diversion: this is 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. The complaint against a juvenile shall be referred to the Juvenile Justice Committee for disposal through diversion. All offences, either minor or major, shall be compoundable for purpose of diversion. For major offences, diversion can only be exercised if the age of the juvenile is not more than 16 years.
6) Juvenile Justice Committee: this shall dispose of cases through diversion within a period of one month from the date of the referral. The Committee shall dispose of a case with consent of the complainant by resorting to different options, including restitution of movable property, reparation of the damage caused, written or oral apology, participation in community service, payments of fine and costs of the proceedings, placement in juvenile rehabilitation centre; and written and oral reprimand. If the offence has been committed against a State and not against an individual; the Committee may dispose of the case through diversion with consent of the concerned public prosecutor. The Committee shall also perform inspection of Observation Homes and Juvenile Rehabilitation Centres and may give directions to concerned persons for welfare and social re-integration of juveniles kept in these places.
The J.J. Committee is set to consist of four members, including a serving Judicial Magistrate with powers under section 30 of CrPC (Head of Committee); District Public Prosecutor; Member of local Bar having at least 7 years experience, appointed by the concerned Sessions Judge for a period of 2 years; and serving probation officer or social welfare officer not below BPS-17. One thing that is missing is the presence of a qualified child rights activist that understands the plight of the underage victims, and is equipped to deal with their issues.
7) Separate challan and trial of juvenile offenders: a juvenile shall not be charged with and tried for an offence together with an adult person. But if it is in the interests of justice to hold a joint trial of a juvenile and an adult, the juvenile court may dispense with the physical presence of the juvenile and they may be allowed to join the Court proceedings through audio-visual technology link.
8) Imposition of penalty for disclosure of identity of juvenile or to publish proceedings of juvenile court: JJS Act 2018 exclusively bars revealing the identity of an accused juvenile to the public without the authorisation in writing of the juvenile or their next-of-kin. The S.H.O, investigating officer or the juvenile court can also grant permission in this regard.
9) Special provisions for female juveniles: Female juveniles shall not in any circumstances be apprehended or investigated by a male police officer or released on probation under supervision of a male officer. A female juvenile shall only be kept in a Juvenile Rehabilitation Centre established or certified exclusively for female inmates.
10) Removal of disqualification attached with conviction: A juvenile offender convicted under the provisions of JJS Act 2018 shall not suffer a disqualification, if any attaching to a conviction of an offence under such law.
11) Preventive Detention: No child shall be arrested under any of the laws dealing with preventive detention or under the provisions of chapter VIII of the Code of criminal procedure.
by Wajahat Ali. The writer is an Advocate of the High Court, Policy Program Advisor at NCRC and a Child Rights Activist. He can be contacted on his Email: adv.wajahat.ali@gmail.com
Published in Daily Times 1, September 7th 2018.
