Despite the enactment of the Juvenile Justice System Act 2018, youngv offenders await proper implementation and reliable mechanisms
Pakistan is among the 12 countries in the world that might award death penalty or life imprisonment to minors. Ironically, Pakistan is also a signatory to the Convention on the Rights of Child (CRC). Article 37 of the CRC asks state parties to ensure that “neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age”.
Awarding life imprisonment to juveniles is also against the Article 25 (3) of the Constitution of Pakistan 1973, which iterates an obligation to safeguard and protect the rights of children. In July 2019, a news report published in a Middle Eastern website called Urdu News highlighted that at least 1,225 juveniles are being held in different prisons and waiting for justice.
In 2018, Pakistan enacted the Juvenile Justice System Act 2018 (JJSA) and its predecessor the Juvenile Justice System Ordinance (JJSO) 2000 was thereby repealed. JJSA 2018 states that a juvenile offender below 16 years of age is entitled to bail in heinous offences, but bail is the discretion of court if the juvenile is above sixteen years of age.
Sarmad Ali, a lawyer and the executive director of LAW believes that police knowingly violate protocols of due process. “Most of the time, the police get influenced by the complainant. Sometimes, in cases of crimes against the state, police investigation officers violate due course just to avoid all the defined legal procedure. They intentionally try to avoid mentioning the age or declaring the offender as a juvenile on the Saza Slip”, he states.
The ‘Saza Slip’ is a part of the challan report under 173 of CRPC 1898 – to be appended with at the time of the submission of the challan report to the office of district prosecutor.
It is observed that the trial judges have been inclined to give weight to Saza Slip, Ali states. “Generally, ‘age determination’ is ignored by trial courts in cases where accused standing trial is found to be involved in heinous offences”, he adds. A criticism of the JJSA 2018 is that it allows judges discretionary power to treat offenders who may otherwise be juveniles (under the age of 18), but due to faulty implementation are not recognised as such, as adults committing crimes.
Research highlights that Reclamation and Probation Department (RPD) lacks a proactive approach in crucial circumstances. The Probation of Offenders Ordinance 1960 demands RPD to be proactive as it is considered the nucleus of juvenile justice system.
However, Rana Ghulam Sarwar, the probation officer at a session court in Lahore blames the police for not abiding by protocols of due process. “Our role comes into play when police station informs us about any juvenile offender. We have no authority to interfere in police work. Unfortunately, it is the police that mostly keep us in the dark while submitting challan report before court”, he states.
A recent research study titled Tracing of juveniles facing/ convicted of offences punishable by death penalty or life imprisonment conducted in prisons across the Punjab, and Sindh conducted by Legal Awareness Watch (LAW) and Marvi Rural Development Organization (MRDO), has noted serious violations of the Juvenile Justice System Act 2018 (JJSA). LAW and MRDO selected 10 prisons of the Punjab and Sindh, five each, to trace number of juvenile prisoners in these prisons. This activity has traced 87 juvenile inmates including three girls. Out of these inmates, five in the Punjab and one in Sindh have been sentenced to life imprisonment, and one has been charged with terrorism. The study further notes that in Sindh those behind bars are between the age range of 13 and 15 years and in the Punjab the age range is between 15 and 17 years.
The research concedes that improper implementation of ‘age determination’ of juvenile offenders by police at the FIR stage is extremely harmful. It has been observed that as common practice, the police assess age only by physical appearance rather than checking it medically or put the offender at the age category of 16 to 18 or above, Saira Ahmed, the manager of MRDO tells The News on Sunday.
“Across Pakistan, the police’s assessment method pertaining to age determination appeared to be arbitrary, having no legal force and paying no heed to the fact that the only permitted age determination is through ‘Ossification Test’ as warranted under Section 8 of JJSA 2018”, she says.
“JJSA distinguishes between minor and major offences. Both are treated as bailable offences,” says Iftikhar Mubarik.
The JJSA 2018 also instructs that a juvenile offender shall be informed by the police about his right of legal assistance within 24 hours of being taken into custody, and they will be kept temporarily in an Observation Home after being apprehended for conducting inquiry or investigation. An Observation Home shall be an establishment separate from the police station.
The study highlights that without any consideration, juvenile offenders are being tried in ordinary criminal courts, and being kept in regular prisons with adult prisoners due to limited space in some jails and sub-jails for juvenile prisoners. JJSA explicitly instructs provinces to establish separate Rehabilitation Centres for juvenile offenders where the police or prison department shall have no access. However, there are only seven juvenile detention facilities: two of these are located in the Punjab, four in Sindh, and one in KP. There is no such facility in Balochistan.
The report also validates the claim that the police are not following the due course of determining the age limit at the time of registering a first information report (FIR). Additionally, female offenders are being interrogated by male officers — a violation of Section 17 of JJSA 2018. This section explicitly states, that a male investigation officer shall not investigate a case finding an involvement of female juvenile(s). Furthermore, all 87 juvenile offenders in the research claim they do not have any legal defence council which is also a gross violation of the JJSA.
“Section 3 of JJSA 2018 explicitly states that every juvenile or child victim of an offence shall have the right of legal assistance at the expense of the State”, says Iftikhar Mubarik, a child rights activist and the director of an NGO called Search for Justice. He states that JJSA 2018 overcomes the shortcomings which were present in JJSO 2000, and provides a much better system for criminal justice and social reintegration for juvenile offenders.
“JJSA distinguishes between minor and major offences and both of these are treated as bailable offences,” he adds.
Mansoor Shah, a lawyer and human rights activist believes that the implementation of the law is concerning. He argues that the juvenile justice system in the country is severely lacking in reliable mechanisms. Under Section 10 of JJSA 2018, aJuvenile Justice Committee (JJC) should be established at district level within three months of its promulgation but not a single committee has been formed till date, he says.
The JJC is an important component of JJS as this committee has the mandate to dispose of cases through diversion within a period of one month from the date of the referral.
Separate juvenile courts are to be established under Sections 4 and 5 of JJSA. Currently, there are no such courts, albeit, all district and sessions hudges have the extra role of serving as judges in cases where juveniles are on trial.
According to Shah, JJS involves the Social Welfare Department, RPD, Child Protection Bureau, police, and Prosecution Department. However, there is no mechanism for coordination among these departments. Furthermore, insufficient resources have been allocated by the provincial governments to provide legal assistance to juvenile offenders.