PAKISTAN: Out of the frying pan, into the fire - juvenile justice in Pakistan

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.
Pakistan ratified the United Nations Convention on the Rights of the Child (UN CRC) in November 1990. Pakistan was among the first 20 states to sign the UNCRC. In so doing, it made a commitment to “respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination.”

What is Juvenile Justice?

A Juvenile Justice System, as understood by the Committee on the Rights of the Child, refers to a separate justice system for juveniles, in which the juvenile suspect enjoys all due process and human rights, while also receiving special protection because he or she is under-aged. But since 1990 the Government has not introduced any special system for children in criminal litigation.

Juvenile justice can be narrowly defined as the legislations, standards, procedures, mechanisms and institutions specifically applicable to children, both boys and girls under the age of 18, in conflict with the law. The overriding aim of juvenile justice systems should be to protect and promote children’s fundamental rights and to give convicted children the greatest possible chance of reintegrating into society.

International Standards

The CRC (particularly its Articles 37, 39 and 40), United Nations Minimum Rules for the Administration of Juvenile Justice 1985 (The Beijing Rule) and the United Nations Guidelines for the prevention of Juvenile Delinquency 1990 (The Riyadh Guidelines), the United Nations Rules for the Protection of Juvenile deprived of their Liberty 1990 (JDLs) and Vienna Guidelines for Action on children in the Criminal Justice System.

The CRC is the most important of all the standards because it is the only one that is legally binding. The other standards mentioned go into more detail on specific aspects of the juvenile justice system, but they are only non-binding ‘guidelines’. Together, the three sets of UN rules provide guidance for the three stages of a holistic juvenile justice process:

• Applying social policies to prevent and protect young people from committing an offence (The Riyadh Guidelines);
• Establishing a progressive justice system for young people in conflict with the law (The Beijing Rules) ;
• Safeguarding fundamental rights and establishing measures for social re-integration of young people deprived of their liberty, whether in prison or other institutions (The JDL Rules)

Juvenile Justice System Ordinance 2000

Since 1990, Pakistan’s ratification of the UN CRC has required the establishment of a separate justice system for juveniles. Ten years after ratification in July 2000, the government of Pakistan promulgated the Juvenile Justice System Ordinance (JJSO 2000), which focused on the child in the criminal justice process. The law provided for protection measures throughout the arrest, trial and imprisonment of children in conflict with the law. For the first time in Pakistan, the law defines the age of a child as being 18 years or less. No juvenile may be given the death penalty or ordered to labour during time spent in any Borstal or other institution. No child can be put in fetters or given any corporal punishment at any time while in custody.

To give protection during trial and imprisonment, the law states that the Provincial Government must establish juvenile Courts. These should be set up in consultation with the Chief Justice of High Court and will have exclusive jurisdiction to try cases in which a child is accused of an offence. The court must decided cases within four months. Every child is entitled to legal assistance at the State’s expense. No child can be charged or tried with an adult and all girls and boys should be tried separately by the juvenile court.
If a child is convicted of an offence, the juvenile court may direct the child offender to be released on probation for good conduct by placing the child under care of a guardian who might have to execute a bond, with or without surety. The court may also make an order directing the child offender to a Borstal Institution. The Ordinance defines a Borstal Institution as a place where child offenders may be detained and given education and training for their mental, moral and psychological development.

Section 14 of JJSO

Section 14 of JJSO states that “Provision of this ordinance shall be in addition to, and not in derogation of, any other law for the time being in force”.
In the above provision “addition” and “derogation” have been used. Black’s Law Dictionary defines these as:

“Addition: This term embraces the idea of joining or uniting one thing to another, so as thereby to form one aggregate. Implies physical contact, something added to another.”
“Derogation: The partial repeal not abrogating of a law, as by a subsequent act which limits its scope or impairs its utility and force. Distinguished from abrogation, which means the entire repeal and annulment of a law.”

Thus, the provisions of Ordinance 2000 do not repeal, abrogate, partially repeal, or partially abrogate the other laws in force on the date of its enforcement 1st July 2007. But they are to be read in addition, or attached to, or prefixed to the laws which were in force on the date when the Ordinance 2000 was enacted. This makes one aggregate law because the Legislature used the words “for the time being in force”

Section 14 made the juvenile justice procedure more complicated and created ambiguity in accessing justice for juvenile offenders, as it supplements other laws.

Juvenile Offenders charged under the Anti Terrorism Act (second Amendment) 1997 (ATA), do not come under the purview of the JJSO, which makes them vulnerable to the death penalty and life imprisonment. They may face death if charged under the offences listed in the paragraph four of the third schedule which includes abduction or kidnapping for ransom; use of fire arms or explosives by any device, including bomb blast in any place of worship, whether or not any hurt or damage is caused thereby; or firing or use of explosive by any device, including bomb blast in the court premises.

The Control of Narcotics Substances Act (CNS) was enacted in July 1997 and Section 45 confers exclusive jurisdiction upon Special Courts constituted under the Act to try offences cognisable under the said Act. Section 76 stipulates that the provisions of the said Act will have effect notwithstanding anything contained in any other law for the time being in force.

The Anti Terrorism Act 1997 was enacted a month later and it specifically provides for children’s trial before Anti Terrorism Courts (ATCs). Children accused of offences under the Act are treated in a manner similar to adults. The concession they get, however, is that the maximum punishment for offences committed by children is half that for adults. Under the ATA, children can also be sentenced to death. At times death sentence or life imprisonment is the mandatory sentence under the Act if the trial court convicts an accused, juvenile or otherwise.

Anti-Terrorism Acts, Narcotics Acts are special Acts provided for establishment of Special Courts to deal with the offences triable under the said Acts, whereas the Juvenile Justice System Ordinance 2000 provides for the establishment of Courts dealing with the case of juvenile offenders irrespective of the nature of offence committed by them.

In February 2006, a full bench of Sindh High Court (SHC) in a judgment reported as PLD 2006, Karachi 331 held that a juvenile charged under the Anti-Terrorist Act would be tried by the Anti-Terrorism Court (ATC) and not by the juvenile courts. The SHC ruled that the ATC would not be bound by rules of procedure required for juvenile courts…Nevertheless the substantive protection not inconsistent with the Act under the Juvenile Justice system Ordinance,2000 would be accorded by such courts while trying children.

While JJSO remains in the field, Section 32 of the Anti-Terrorism Act gives the Act overriding effect over all other laws, ruling out a trial for the juvenile accused under the JJSO. In more than one instance, high courts in Pakistan have insisted that juveniles charged under the ATA cannot have a separate trial. While overturning a trial court’s decision to allow a separate trial under the JJSO of two juvenile accused, the Lahore High Court observed:

“An offence of terrorism can be tried only by an Anti-Terrorism Court constituted under the Anti-Terrorism Act, 1997 and the age of the offender has no relevance to the question of such jurisdiction. The express provisions of section 2(d),21-C(5),21-C(7) (e), 21-C (7) (f) and 21-F & 32 of the Anti-Terrorism Act, 1997. and the age of the offender has no relevance to the question of such jurisdiction. “ Child” below the age of 18 years can legitimately be tried by an Anti-Terrorism Court constituted under the Anti-Terrorism Act 1997..Provisions of the Anti-Terrorism Act 1997, have been the overriding effect over all other laws including the Juvenile Justice system Ordinance,2000.

On other occasions the high courts have held that a court under the ATA has complete jurisdiction to try any offence irrespective of whether the offender is a minor or not.
Trial in absentia

In almost all major criminal legal systems in the world, the accused is not tried in his absence, as that may prejudice his defence. The requirements for the accused to be present at his trial are aimed at allowing him to see and challenge the evidence and witness accounts that might incriminate him. There are similar provisions for a criminal trial in Pakistan. Under the regular criminal law in the country, the general rule is that all evidence is to be taken in presence of the accused.

To ensure a “speedy” trial, however, the ATA provides for trial of accused in absentia.(Sec 19 (10), ATA 1997)

The trial and charging of children under the ATA is foul of Pakistan’s commitment under the Convention of the Rights of the Child (UN CRC) on many counts.
In further disregard of Pakistan’s obligation under specific CRC provisions, the Anti-Terrorism Act does not establish “a minimum age below which children shall be presumed not to have the capacity to infringe the penal law”. The ATA instead casually defines a child as “a person who at the time of the commission of the offence has not attained the age of eighteen years”.

It is stated in Article 40 (3),(a) of CRC “State Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as , accused of, or recognised as having infringed the panel law, and, in particular (a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the panel law.

In Practice the incidents of juveniles being arrested under the ATA and their trial at the ATC are not rare. Children as young as 12 have been arrested and detained for alleged offences under the 1997 Act.

Conclusion/Suggestions

It is strictly recommended that amendments shall be made in section 14 of the JJSO to resolve ambiguities:
• Deletion of words “not in derogation of any other law for the time being in force”.
• Insertion of words “this law will have overriding affect on any other law for the time being in force”.
By doing this JJSO will have an overriding effect upon the Anti Terrorism Act 1997 and Control of Narcotics Substances Act 1997. Presently Juveniles involved in the crimes defined under these Acts are being tried by special courts constituted under these Acts in the result of Lahore High Courts Davison Bench Judgmentm reported as PLD 2004 Lahore 779, and recently Full Bench Judgment of Karachi High Court, reported as PLD 2006 Karachi 331.

The other aspect of Section 14 is that it supplements other Juvenile friendly Laws such as The Sindh Children Act 1955 and The Punjab Youthful Offenders Ordinance 1983 which makes provision in more comprehensive way for the treatment of children involved in criminal litigation.

References:
PLD 2004 Lahore 779.
The State of Pakistan Children (SPARC 1996)
UN Convention on the Rights of the Child
Terrorist unless proven otherwise (HRCP)
All Pakistan Legal Decisions, Karachi 2006
Waiting for Sunrise (SPARC)