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Summary: Report detailing the legality of inhuman sentencing against children in Pakistan.
Introduction
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Child offenders may lawfully be sentenced to corporal punishment, life imprisonment and the death penalty. Law reform has gone some way to prohibiting corporal and capital punishment for child offenders, but the law is complex and unclear and these sentences remain lawful in certain circumstances.
Juvenile justice is primarily governed by the Juvenile Justice System Ordinance (JJSO), promulgated in 2000 but still not fully implemented throughout the country. This Ordinance was initially applicable only to the four provinces – Sindh, Punjab, Balochistan and the North West Frontier Province (now known as Khyber Pakhtunkhwa). Implementation rules were laid down for the Ordinance in these provinces and in Islamabad Capital Territory by 2002. The Ordinance has since been extended to the Federally Administered Tribal Areas (FATA), the Provincially Administered Tribal Areas (PATA) and the Northern Areas (now known as Gilgit-Baltistan) by way of notification, but as at August 2009 no implementation rules seemed to have been laid down.1 In Khyber Pakhtunkhwa, the JJSO provisions are incorporated in the Child Protection and Welfare Act 2010. The JJSO applies to Azad Jammu and Kashmir under the Juvenile Justice System Act 2003 (amended 2005).
The JJSO does not repeal other laws but is in addition to them.2 Where there is conflict, the JJSO overrides other laws except in relation to hadd offences and cases in special courts dealing with drug and terrorism offences. In FATA, the Frontier Crimes Regulation 1901 applies to all persons, regardless of age. Certain areas of Khyber Pakhtunkhwa are governed by Sharia law under the Nizam-e-Adl Regulation 2009, which overrides all other laws.3
In 2004, the Lahore High Court struck down the JJSO with effect for the whole country.4 On 11 February 2005, following appeals by the Federal Government and the Society for the Protection of the Rights of the Child, the Supreme Court made an order to restore the JJSO pending its decision.5 As at July 2010 no final ruling had been issued.6
Other laws relevant to sentencing of child offenders include the Pakistan Penal Code 1860, the Criminal Procedure Code 1898, the Abolition of the Punishment of Whipping Act 1996, the Anti-Terrorism Act 1997, the Control of Narcotic Substances Act 1997, the Hudood Ordinances 1979, the Sindh Children Act 1955, the Reformatory Schools Act 1897 and the Railways Act 1890.
The minimum age of criminal responsibility is seven under the Penal Code.7 Under the Hudood Ordinances, children are liable for punishments on reaching puberty.8 Other laws do not specify a minimum age.9 The JJSO defines a child as a person under 18 at the time of committing an offence.10
1 CRC/C/PAK/Q/3-4/Add.1, 1 September 2009, Written replies by the Government of Pakistan to the list of issues (CRC/C/PAK/3-4) prepared by the Committee on the Rights of the Child in connection with the consideration of the third and fourth periodic reports of Pakistan (CRC/C/PAK/3-4), para. 69. Rules have possibly been laid down in FATA – see Khoso, A. (2010), Pakistan: Frontier Crimes Regulation – Infringing Human and Child Rights, section obtained from the Asian Human Rights Commission, www.ahrchk.net/statements.mainfile.php/2010statements/2803/?print=yes, accessed 7 September 2010
2 Section 14
3 Section 18
4 Farooq Ahmed v Federation of Pakistan, PLD 2005, Lahore 15 (6 December 2004)
5 Amnesty International (2005a), Pakistan: Amnesty International’s comments on the Lahore High Court judgment of December 2004 revoking the Juvenile Justice System Ordinance, AI Index 33/026/2005
6 OnePakistan News, 1 July 2010. See also CRC/C/PAK/Q/3-4/Add.1, 1 September 2009, Written replies by the Government of Pakistan to the list of issues (CRC/C/PAK/3-4) prepared by the Committee on the Rights of the Child in connection with the consideration of the third and fourth periodic reports of Pakistan (CRC/C/PAK/3-4), para. 70
7 Section 82
8 Offence of Zina (Enforcement of Hudood) Ordinance 1979, section 2(a); Offence of Qazf (Enforcement of Hadd) Ordinance 1979, section 2(a); Prohibition (Enforcement of Hadd) Order 1979, section 2(a); Offences Against Property (Enforcement of Hudood) Ordinance 1979, section 2(a). The Supreme Court has ruled that for a female puberty is the onset of menstruation (Farrukj Ikram v The State, PLD 1987 SC 5), for a male when he starts secreting semen (Abdul Jabbar v The State, PLD 1991 SC 172).
9 For example, the Frontier Crimes Regulation 1901
10 Section 2(b)
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