Juvenile justice system addresses the needs of children which are in conflict with law. It provides child-friendly procedures and diversion instead of formal/hard judicial proceedings. It focuses on rehabilitation and reintegration of juvenile offenders into society.
The specific mechanisms for administering juvenile justice have varied over time among societies. However, the concept of delinquency, as well as special trials and institutions for youth, was established in the mid-19th century in Great Britain.
Juvenile Justice System Act, 2018
In May 2018, the President of Pakistan signed into effect the Juvenile Justice System Act (JJSA) 2018 which is applicable in the entire country. The Act is to provide for criminal justice system and social reintegration of the juvenile offenders. It is a hallmark development, long desired by civil society organizations and child rights activists engaged in defending juveniles’ rights.
The JJSA protects anyone under the age of 18 who is in conflict with the law. It provides for watching the “best interest of the child” which means that the basis for any decision taken during trial and detention will ensure fulfilment of his/her basic rights and needs, identity, social well-being, physical, emotional and psychological development. The law incorporates the concept of “Diversion” which means an alternative process of determining the responsibility and treatment of a juvenile on the basis of his/her social, cultural, economic, psychological and educational background without resorting to formal judicial proceedings.
A Juvenile Justice Committee for each district is needed to establish for such diversions, consisting of a serving Judicial Magistrate, District Public Prosecutor, member of local Bar appointed by the concerned Sessions Judge and serving Probation Officer or Social Welfare Officer. The committee will dispose of the cases through diversion upon referral from the police, prosecution or the Juvenile Court within a period of one month from the date of the referral. The Committee shall dispose of a case, with consent of the person against whom the offence was committed, by using different modes of diversion consisting of 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 Juvenile Rehabilitation Centre; written and oral reprimand.
The JJSA provides that arrested juvenile be kept in an observation home and shall be interrogated under the supervision of Superintendent of Police/SDPO by a police officer not below the rank of Sub Inspector, assisted by a Probation Officer or by a Social Welfare Officer who would prepare Social Investigation Report.
Under the JJSA, a child cannot be handcuffed or fettered, forced to do labour, or given corporal punishment during the detention and cannot be awarded the death penalty. The identity of the juvenile cannot be disclosed in compliance with article 13. JJSA also provides that if there are reasonable grounds for believing that the release of a juvenile may expose him/her to any danger or criminals, he/she shall be placed under the custody of a suitable person or in Juvenile Rehabilitation Centre under the supervision of a Probation Officer. The juvenile shall not under any circumstances be kept in a police station under police custody or jail.
JJSA states that every juvenile offender or a child who is victim of an offence shall have the right of legal assistance at the expense of the State. After Juvenile Justice System (Amendment) Act, 2022, it provides that the Prime Minister in consultation with the concerned High Court shall establish or designate one or more Juvenile Courts in a district or two within a period of three months of the commencement of this Act. On taking cognizance of an offence, the Juvenile Court shall decide the case within six months.
Previously, Juvenile Justice System Ordinance 2000, lacked a mention of girl juveniles; there were no protections for female juveniles. Conversely, article 17 of Juvenile Justice System Act 2018 states, no female juvenile shall in any circumstances be apprehended or investigated by a male police officer or released on probation under supervision of a male officer and furthermore, shall only be kept in a Juvenile Rehabilitation Centre established or certified exclusively for female inmates.
The rationale
The logic to treat juvenile offenders humanely and separately is reflected in Article 37 and Article 40 of the United Nations Convention on the Rights of the Child (UNCRC), ratified by Pakistan in 1990. The UN Committee on the Rights of the Child reviewing Pakistan’s compliance on the 5th periodic report had expressed its serious concerns about insufficient legislation on the juvenile justice in the concluding observations in 2016. In March, 2018, in the outcome report of Pakistan’s third Universal Periodic Review, Pakistan was urged to take the necessary measures to include international standards for juvenile justice in domestic arena. Pakistan had accepted this recommendation tabled in Geneva, therefore, passage of Juvenile Justice System Act was a proud act in compliance with international commitments.
The idea of special procedures for juvenile offenders essentially carries a compassionate treatment of the accused as vulnerable group of human beings. The children are supposed to be dealt in such manner that does not contravene with the provisions of the UNCRC.
Now local and international law both require that Pakistani children should encounter a tender face of justice if and when they have the misfortune of standing in conflict with the law, mostly due to circumstances beyond their control or comprehension. A robust juvenile justice system should be set up under this act for children facing tough conditions during detention to fully utilize the benefits of JJSA.
Implementation of JJSA
Rules under Juvenile Justice System Act, 2018 have only been notified in Islamabad Capital Territory (ICT) and in Khyber Pakhtunkhwa (KP). Only 13 Child Protection Courts were established. These were not inclusive juvenile courts while according to JJSA inclusive juvenile courts were required. However, while these courts’ performance assessments demonstrated a high efficiency and increase in child-sensitive justice procedures, a decision from Peshawar High Court took away the jurisdiction of these courts to try juveniles’ cases. Overall, judicial authorities in all provinces have issued a blanket notification that appoints all additional district session judges as juvenile judges which totally ignores the special characteristics of a juvenile court.
So far Social Welfare Department in any district is not willing to become a stake holder in juvenile justice system and to take any responsibility. Scarcity of probation officers is also a serious hindrance in implementation of JJSA. There must be at least one probation officer especially designated for children in every district of the country.
On December 13, 2024 the Juvenile Justice Committee for Lahore was notified after six years of passing Juvenile Justice System Act, 2018. Only eight committees have been notified in previous years in few districts and all are dysfunctional while there are almost 166 districts in Pakistan and JJSA requires an active committee in every district.
Pakistan submitted the sixth and seventh reports together to the UN Committee on the Rights of the Child in August 2023, covering the period from June 2016 to June 2021. That combined report is available on the United Nations website from February 5, 2024.
Elaborating on juvenile justice, the state report does not mention the resources allocated to provide free legal assistance to juveniles in different territories. It does not say how many inclusive observation homes and juvenile rehabilitation centres have been established. Or enumerates pending cases for juveniles at the appellate court. One must ask, what measures are being taken for the speedy trials of juveniles? There is an urgent need to enforce the JJSA in letter and spirit in line with guidance of General Comment 24 of UNCRC.
With this law in place, there is a ground to introduce institutional changes and measures towards a reformative approach to justice. Society and the justice system have long used punitive approach without demonstrable positive results. It is a time that the approach of tender justice be given an honest and complete trial for individual cases, though ultimately, to treat the ills of the society as well as the system.
Published In Express Tribune on January 19, 2025
