Perplexing legislation for juveniles
On December 6th, 2004, the Lahore High Court struck down the Juvenile Justice System Ordinance (JJSO) 2000
The writer is a lawyer by profession and currently serving as a Research and Publications Coordinator at the National Commission for Human Rights
On December 6th, 2004, the Lahore High Court struck down the Juvenile Justice System Ordinance (JJSO) 2000, on account of being unreasonable, unconstitutional, and impractical. The judgment was challenged before the Supreme Court of Pakistan by the federal government wherein interim relief was granted but the final decision remains pending. After approximately 13 years, in view of the judgment and concluding observations by the Committee on the Convention of the Rights of Child, to which Pakistan is a signatory, the Parliament of Pakistan recently passed the Juvenile Justice System Act, 2018.
Despite the current Act providing basic safeguards to juveniles, such as the setting up of juvenile courts, the establishment of observation homes and rehabilitation centres, and disposal of cases through diversion, the Act lacks on multiple fronts, for example — the extent of jurisdiction to the whole of Pakistan as provided under Section 1(2); or whether the federal legislature is competent to legislate on the subject of “children”, or for that matter, juveniles, after the devolution under the 18th Amendment; whether the Juvenile Justice System falls into the category of criminal law, criminal evidence, etc. Even the statement of objects and reasons fails to answer these queries.
Coming towards the definition of a “child” and minimum age of criminal responsibility, internationally, there is a debate on the minimum age at which a person can be held liable for criminal responsibility. So far, there are no international standards with regard to most appropriate age. Presently, the General Comments on the Convention on the Rights of Child provides that minimum age below 12 years should be unacceptable. However, the Pakistan Penal Code deems any act committed by a child under the age of seven a non-cognisable offence. It provides that nothing is an offence which is done by a child above 7 years and below 12 years who has not attained the maturity of understanding the nature and consequences of his conduct. On the contrary, then definition of a “child” given in the JJSO 2000 is of any individual who has not attained the age of majority, ie, 18 years, was one of the reasons given by the Lahore High Court while striking down the law. Ironically, the same definition is part of the new Act. Besides, it is surprising to see that every child-related law has its own definition of child which for some reason differs from the other. In labour laws, a child is any person who is below the age of 14 years. On the other hand, the Code of Criminal Procedure in Pakistan defines a juvenile as an individual who is less than 15 years of age. Apart from these, the Zina Ordinance defines an “adult” as a male person who is aged 18 years and above, and for women, as an individual who is aged 16 years and above or has attained puberty. While striking down the JJSO 2000, the court also observed that neither any reasons to support such fixation were presented nor any detailed study with regard to social patterns, criminal trends or statistical data was ever conducted. Article 1 of the Convention on the Rights of the Child provides that a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier. This article is aimed at prescribing the maximum age where a human being is considered a child generally for the purposes of the Convention. The Ministry of Human Rights blindly followed Article 1 of the Convention while ignoring the Article 40(3)(a) of the Convention which provides that state parties shall seek establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the Penal Law but the present Act is silent with regard to minimum age of criminal responsibility.
The inconsistencies which were supposed to be addressed in this Act still persist after 13 years. Neither the Ministry of Human Rights, which takes credit for this Act, nor the honourable members of the Lower House of Parliament ever discussed the said discrepancies during the meeting of the Standing Committee of Human Rights or during parliamentary sessions. Now, the question remains: can the overriding effect overcome the confusion with regard to definition of child/juvenile?
Section 8 of the Act again relies on the flawed premises of birth certificate, educational certificates or any other pertinent documents as these can be easily forged and can cause undue delays in criminal trials as the Act is silent with regard to the “summary inquiry” of age determination by courts. This is especially problematic in cases wherein ages of death-row convicts are still being contested. Why the government is reluctant to introduce the Orthopantomograph (Panorax) and Bone Ossification Test for age determination is another question that remains unanswered. Is it because of the ignorance or incompetency on the part of ministries or divisions concerned?
Apart from the above, Section 6 of the Act deals with the ‘Release of Juvenile on Bail’, but according to Section 6(4), a juvenile may not be released on bail if he is more than 16 years of age and arrested for any heinous offence. It creates further confusion with regard to fixation of age and its further classification especially if read together with Section 15 of the Act which provides Power of Juvenile Court to issue order for release but is silent concerning juvenile of more than 16 years arrested for any heinous offence.
Section 4 of the Act deals with the establishment of juvenile court and Section 12 provides a separate trial of a juvenile with an adult with exceptions. Is it practically possible to hold a separate trial at a different a place on the same subject matter keeping in view the competency, human resource available, especially on the part of investigating and prosecution agencies? What if the trial is conducted separately? Will it have no prospect of conflicting judgments by different courts trying the same offence?
In essence, it is astonishing to see that these disputed questions remained unanswered in the Draft Act especially when it is mentioned in the Statements of Objects and Reasons that a new Act is being enacted after tending to all infirmities of the JJSO 2000 given by the Lahore High Court while striking down the law. Hence, the draft law is unlikely to assist in establishing a model juvenile justice system and resolve the legal complexities stemming from the JJSO 2000.
Published in The Express Tribune, July 14th, 2018.
Despite the current Act providing basic safeguards to juveniles, such as the setting up of juvenile courts, the establishment of observation homes and rehabilitation centres, and disposal of cases through diversion, the Act lacks on multiple fronts, for example — the extent of jurisdiction to the whole of Pakistan as provided under Section 1(2); or whether the federal legislature is competent to legislate on the subject of “children”, or for that matter, juveniles, after the devolution under the 18th Amendment; whether the Juvenile Justice System falls into the category of criminal law, criminal evidence, etc. Even the statement of objects and reasons fails to answer these queries.
Coming towards the definition of a “child” and minimum age of criminal responsibility, internationally, there is a debate on the minimum age at which a person can be held liable for criminal responsibility. So far, there are no international standards with regard to most appropriate age. Presently, the General Comments on the Convention on the Rights of Child provides that minimum age below 12 years should be unacceptable. However, the Pakistan Penal Code deems any act committed by a child under the age of seven a non-cognisable offence. It provides that nothing is an offence which is done by a child above 7 years and below 12 years who has not attained the maturity of understanding the nature and consequences of his conduct. On the contrary, then definition of a “child” given in the JJSO 2000 is of any individual who has not attained the age of majority, ie, 18 years, was one of the reasons given by the Lahore High Court while striking down the law. Ironically, the same definition is part of the new Act. Besides, it is surprising to see that every child-related law has its own definition of child which for some reason differs from the other. In labour laws, a child is any person who is below the age of 14 years. On the other hand, the Code of Criminal Procedure in Pakistan defines a juvenile as an individual who is less than 15 years of age. Apart from these, the Zina Ordinance defines an “adult” as a male person who is aged 18 years and above, and for women, as an individual who is aged 16 years and above or has attained puberty. While striking down the JJSO 2000, the court also observed that neither any reasons to support such fixation were presented nor any detailed study with regard to social patterns, criminal trends or statistical data was ever conducted. Article 1 of the Convention on the Rights of the Child provides that a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier. This article is aimed at prescribing the maximum age where a human being is considered a child generally for the purposes of the Convention. The Ministry of Human Rights blindly followed Article 1 of the Convention while ignoring the Article 40(3)(a) of the Convention which provides that state parties shall seek establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the Penal Law but the present Act is silent with regard to minimum age of criminal responsibility.
The inconsistencies which were supposed to be addressed in this Act still persist after 13 years. Neither the Ministry of Human Rights, which takes credit for this Act, nor the honourable members of the Lower House of Parliament ever discussed the said discrepancies during the meeting of the Standing Committee of Human Rights or during parliamentary sessions. Now, the question remains: can the overriding effect overcome the confusion with regard to definition of child/juvenile?
Section 8 of the Act again relies on the flawed premises of birth certificate, educational certificates or any other pertinent documents as these can be easily forged and can cause undue delays in criminal trials as the Act is silent with regard to the “summary inquiry” of age determination by courts. This is especially problematic in cases wherein ages of death-row convicts are still being contested. Why the government is reluctant to introduce the Orthopantomograph (Panorax) and Bone Ossification Test for age determination is another question that remains unanswered. Is it because of the ignorance or incompetency on the part of ministries or divisions concerned?
Apart from the above, Section 6 of the Act deals with the ‘Release of Juvenile on Bail’, but according to Section 6(4), a juvenile may not be released on bail if he is more than 16 years of age and arrested for any heinous offence. It creates further confusion with regard to fixation of age and its further classification especially if read together with Section 15 of the Act which provides Power of Juvenile Court to issue order for release but is silent concerning juvenile of more than 16 years arrested for any heinous offence.
Section 4 of the Act deals with the establishment of juvenile court and Section 12 provides a separate trial of a juvenile with an adult with exceptions. Is it practically possible to hold a separate trial at a different a place on the same subject matter keeping in view the competency, human resource available, especially on the part of investigating and prosecution agencies? What if the trial is conducted separately? Will it have no prospect of conflicting judgments by different courts trying the same offence?
In essence, it is astonishing to see that these disputed questions remained unanswered in the Draft Act especially when it is mentioned in the Statements of Objects and Reasons that a new Act is being enacted after tending to all infirmities of the JJSO 2000 given by the Lahore High Court while striking down the law. Hence, the draft law is unlikely to assist in establishing a model juvenile justice system and resolve the legal complexities stemming from the JJSO 2000.
Published in The Express Tribune, July 14th, 2018.