Pakistan’s Juvenile Justice
Pakistan is a signatory of the Convention on the Rights of Child (CRC). Article 37 of the CRC states:
States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
In light of the above, and pursuant to Article 25 (3) of the Constitution of Pakistan, 1973, Pakistan is under an obligation to safeguard the protect the rights of children. With this backdrop in mind, it is crucial that laws relating to juveniles should be focused on disposal of cases through diversion and social-integration of juvenile offenders and for a law to provide specific procedures to carry out the same so that these processes can be carried out in an effective manner and in the best interest of the child. The Juvenile Justice System Act 2018 (JJSA) has been promulgated to deal with these issues and its predecessor the Juvenile Justice System Ordinance (JJSO) has thereby been repealed.
Before delving into the merits of JJSA, it is first important to highlight the legal challenges that arose out of the operation of the JJSO. A common issue under JJSO was determining whether a juvenile court would have jurisdiction if a juvenile has committed a terrorism offence or an anti-terrorism court (ATC)? A perusal of case law under JJSO shows that there are two category of cases. One category of cases states that if a juvenile has committed a terrorism offence, an ATC shall have jurisdiction to try the case, whereas, the second category states that even if a juvenile has committed an offence under Anti terrorism act (ATA), it should be tried by a juvenile court and especially in relation to offences falling under items 1 & 3 of the third schedule of ATA (PLD 2006 Karachi 331; PLD 2003 SC 656). The first category of cases was also strengthened by the fact that Section 14 of the JJSO did not curtail or limit the power of Anti-Terrorism Courts pertaining to a child’s trial but clarifies that the provisions of the Ordinance shall be in addition to and not in derogation to any other law for the time being in force. Furthermore, Section 21-G of the ATA states that all offences under this Act shall be tried (exclusively) by Anti-Terrorism Court established under this Act. Therefore, this lack of clarity became an issue when determining whether a special court such as an anti terrorism court (ATC) or a narcotics court shall have jurisdiction over a juvenile court.
JJSA has attempted to deal with this issue. Section 23 of the Act states that the provisions of the law will have an overriding effect notwithstanding anything contained in any other law for the time being in force. However, further clarity will still be needed in light of Section 21-G of the ATA and especially in relation of offences, which fall under items 2 & 4 of the third schedule of the ATA.
Furthermore, JJSA distinguishes between minor and major offences and both of these are treated as bailable offences for the purpose of acquiring bail. In relation to investigation of a juvenile, a juvenile shall not be interrogated by a police officer below the rank of a sub-inspector and the investigation officer designated shall be assisted by a probation officer or by a social welfare officer notified by the Government to prepare social investigation report to be annexed with the report prepared under Section 173 of the Cr.P.C. But perhaps the most welcome change that has been brought about by the JJSA is the disposal of cases through diversion in Section 9 of the Act. The Act aims to establish juvenile justice committees in each district, which shall dispose of cases, with the consent of the accused by resorting to different modes of diversion 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. This is in the case where the complainant is not a state functionary. Additionally, Section 17 of the Act provides safeguards for female juveniles. The Act states that no female juvenile shall in any circumstance be apprehended or investigated by a male 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. Additionally, the Act provides for a penalty for disclosing the identity of a juvenile and also provides for the making of rules under the Act to implement the same.
These provisions will go a long way in re-integrating delinquent juveniles into society and improving Pakistan’s compliance with international human rights standards. However, all this depends on proper implementation of these provisions. Lack of implementation of key provisions of JJSA 2018 will ultimately render the legislation ineffective and will deprive young offenders from their constitutional right of fair trial.
An earlier version of this article appeared in The Nation. Republished here with permission.
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