Faraz Ahmed
Introduction
This subject of law is originated way back but has remained ambiguous in Pakistan until the passing of a bill from Parliament named “Juvenile Justice System Ordinance, 2000”. The concept of Juvenile Justice is not new to Pakistani society but a major part of this society is not fully aware of juvenile rights. Moreover, this area of law is also not fully interpreted by legal experts and jurists but a number of decisions of Apex courts are accumulated to analyze and understand the legal aspects and technicalities in this issue. Definition of Juvenile & Relevant Provisions of Law The terms Child, infant and Minor are used interchangeable for juveniles in various laws in force in Pakistan. A general provision in Majority Act, 1975 defines “A minor is a person who has not attained the age of 18 years”Section 2(b) of Juvenile Justice System Ordinance, 2002 defines Child: “Child” means a person who at the time of commission of an offence has not attained the age of eighteen yearsPakistan Penal Code,1860 has relevant provisions that say“Nothing is an offence which has been done by a child under seven years” “Act of a child above seven and under twelve of immature understanding. Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.” Offence of Zina (enforcement of ) Hadd Ordinance, 1979 says that “Adult means a person who has attained, being a male, the age of 18 years or being a female, the age of 16 years, or has attained puberty” Despite the discrimination in the ages of majority of male and female in above provision of law is widely condemned by international organizations , the law is still in practice. It needs to be interpreted and analyzed in true means. Code of Criminal Procedure, 1898 defines juvenile a person who has not attained the age of 15 years. The Children (Pledging of Labour) Act, 1933 defines a child as a person under 15 years and states that any agreement to pledge the labour of a child shall be void. Article 11(3) of the Constitution of Pakistan, 1973 lower this age limit by prohibiting employment of child below the age of 14 in any hazardous employment. The Employment of Children Act, 1991 follows the definition of the Constitution and attempts to regulate the conditions of work for children under 14 years and to forbid their employment in harsh occupations. International Obligations Pakistan has ratified the Convention on the Rights of the Child (hereinafter the Convention) on 12 November 1990, making a reservation on interpreting its provisions following the principles of Islamic laws and values. In 1997 Pakistan decided to withdraw its reservation. Pakistan is a party to three other international instruments aiming at directly or indirectly improving the rights of the child: the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified in 1996, the Declaration and Agenda for Action adopted at the issue of the World Congress against Commercial Sexual Exploitation of Children, signed in 1996, and reaffirmed by the Yokohama Global Commitment in 2001, and the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Form of Child Labor Convention (C182), ratified in 2001.Regretfully, Pakistan is not yet a party to the Convention Against Torture, and other cruel, Inhuman or Degrading Treatment or Punishment (CAT). On 15 June 2001 the Coalition of Non-Government OrganisationsAgainst Torture (CINAT), which includes OMCT, sent to the Pakistani Minister of Foreign Affairs an appeal for the universal ratification of the CAT 1 Federal, Provinces and Rights of Juveniles In Pakistan, the National Assembly as well as the Provincial Assemblies can legislate. Normally federal laws give a general legal provision that is implemented and specified by provincial laws or rules. In certain matters concerning Children’s rights, Pakistani provinces seem to have been more active and more progressive than the Federal State. According to AneesJillani and ZarinaJillani , The Punjab Children Act, 1952 and The Sindh Children Act, 1955 were among the first child related legislations that attempted to bring child centered concerns into laws. While the effort of the provinces to introduce particular legal protections for children has to be warmly welcomed, Children’s rights in Pakistan have to be fostered at federal level and therefore inscribed in the federal legal framework. Provinces can certainly play a major role in Children’s rights development, but their action has to be monitored and framed by federal legislation and government. By ratifying the Convention, Pakistan committed to improve the rights of all children present on its territory. Leaving to provinces the responsibility to promulgate and implement Children’s rights creates discrimination amongst children belonging to different provinces, and weakens the possibility to effectively implement these rights Protocols Regarding Arrest and Bail of Juveniles (Pre-Trial Proceedings) The Juvenile Justice System Ordinance provides special protocol regarding arrest of juvenile. Article 10(1) states that “Where a child is arrested for commission of an offence, the officer In-charge of the police station in which the child is detained shall, as soon as may be inform (a) the guardian of the child (b) the concerned Probation Officer to enable him to obtain such information about the child and other material circumstances which may be of assistance to the juvenile Court for making inquiry. The Juvenile Justice System Ordinance also addresses the question of pre-trial detention. Release on bail is provided when a child accused of a crime punishable with death has been detained awaiting trial for more than a year, when a child accused of an offence punishable with life imprisonment is held pending trial for more that six months, or, when a child accused of an offence other than the aforementioned ones is detained waiting his or her judgment for more than four months. The Juvenile Justice System Ordinance provides some special proceedings concerning release on bail. According to article 10(2), “where a child accused of a non-bailable offence is arrested, he shall, without any delay and in no case later than twenty-four hours from such arrest, be produced before the juvenile court.” According to article 10(3), in case of bailable offences, a child shall, if already not released, be released by the juvenile court on bail, with or without surety, unless the release can bring him in association with criminals or put him in danger, in which case the child shall be placed under the custody of a Probation Officer or a suitable person, but shall not under any circumstances be kept in a police station or jail. The Juvenile Justice System Ordinance further provides special treatment for children under the age of 15 years. Article 10(5) states that, if arrested for an offence punishable with imprisonment of less than ten years, the child under 15 years shall be treated as if he was accused of commission of a bailable offence. Further, “No child under the age of 15 years 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. Juvenile Courts Article 40(2)(b)(iii) of the Convention On Child Rights maintains that “Every child accused of having infringed the law shall have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law”. Article 40(3) asks States Parties to “seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law”. According to Human Rights Watch, in 1999 Pakistani juvenile justice system was far from this ideal situation. Child criminal cases were adjudicated in the same manner and by the same courts as those involving adult offenders. Therefore, children suffered from the vagaries of an overstressed and inefficient criminal justice system, with frequent and prolonged delays in their trial and appeals The Juvenile Justice System Ordinance 2000, as well as some provincial laws, provide for the establishment of juvenile courts. The federal ordinance states that one or more juvenile courts should be established in every province, and that these courts “have the exclusive jurisdiction to try cases in which a child is accused of the commission of an offence” Death Penalty and Life Imprisonment Article 12 of the Juvenile Justice System Ordinance 2000, deals with orders that shall not be passed with respect to a child, and paragraph (a) states that “No child shall be awarded punishment of death” Since the promulgation of the Juvenile Justice System, many cases of children in death row have been reviewed. In December 2001, President Musharaff announced that the death sentences of around 100 young offenders would have been commuted to imprisonment. In July 2002, Punjab’s Law Minister RanaIjaz Ahmad Khan affirmed that the death sentences of 74 juvenile delinquents had been converted into life imprisonment. OMCT welcomes these decisions, but regrets that life imprisonment has in certain cases been awarded as substitutive punishment. Appeal When a child has been convicted, will file appeal within 30 days from the date of such order. The provincial government can also appeal under section 417 of Code of Criminal Procedure 1898. Conclusion Despite the efforts taken by the previous governments which are appreciable, there are number of measures those are recommended to improve the Rights of Child and Juvenile Justice System which are, Setting up of an independent and effective mechanism to monitor the implementation of the UNCRC (United Nations Convention on Rights of Child) and receive and address complaints from children in a child-friendly and expeditious manner; scrutiny of existing laws with a view to bringing them in conformity with the UNCRC; and the implementation of child rights protection in the Northern and tribal areas. It is also expressed to take concern about persistent discriminatory social attitudes towards children which are evident even in the criminal justice system.
(-The Author is an Advocate and a practicing Lawyer at District and Sessions Courts at Khairpur)