Sarmad Ali Advocate
JUVENILE Justice System Act 2018 repealed Juvenile Justice Ordinance 2000, and prior to JJSO 2000 Pakistan had four major laws for dealing with child delinquents, i.e. Reformatory Schools Act 1897, The Punjab Borstal Act 1926, The Sindh Children Act 1955 and The Probation of Offenders Ordinance 1960. All these laws have been in place since their promulgation but found to be dormant for all practical purposes. Apart from these codified laws Section 399 of Pakistan Criminal Code 1898 provided for the confinement of a child delinquent sentenced to imprisonment below the age of 15-year to reformatory school established by the provincial government concerned. Until 1974 all these special codified laws remained dormant and neglected. However, in 1974 some efforts appeared to have been made to implement them across Pakistan to the reason that a few notifications had been floated across authorities at provincial and federal levels.
In year 2000 introduction of JJSO 2000 in Pakistan viewed as a milestone achievement by local stakeholders and rights groups’. It viewed as implementation of UN Convention of Rights of Children to which Pakistan effected signatures in 1990 two years prior to India. Thereafter, retired General Pervez Musharraf issued a presidential notification No. F.8/41/2001-Ptns granting remission in sentences of juveniles found to be below the age of 18-year. Introduction of JJSO 2000 and the Presidential Notification meant for safe guarding juvenile delinquents those who found themselves in conflict with law however, all such efforts met with no result rather wasted efforts.
The criminal justice system of Juvenile Justice Ordinance 2000 miserably failed in safeguarding child delinquents to the reason that child delinquents directed to serve barbaric and medieval time punishments ie case of Sher Ali 2001, moreover, Mohammad Nadeem in 2000 sentenced by an Additional Sessions Court in Lahore to 273 years’ imprisonment and co accused Sabir was sentenced to 63 years’ imprisonment in the same case. The slowness in implementation of juvenile ordinance 2000 created huge and unrecoverable losses to the whole idea of developing a juvenile justice system to the reason that many juveniles subjected to barbaric punishments and/or hanged. The purpose of developing a juvenile justice system got lost due to reluctance of the authorities upon implementation of JJSO 2000.
The authorities and folks instead of making efforts of implementing it across Pakistan decided to repeal it with a view of promulgating a new law ie JJSA 2018 in order to avoiding their responsibilities and duties rising under the law. It is in writer’s view that juvenile justice system can only flourish across Pakistan, if registration of birth of children be promoted through NADRA making it mandatory upon parents to register births of their children within one month from the date of birth. This logic of the writer is based upon its personal research that provided him to state that 70% births do not get registered in Pakistan within first year of birth of a child. To this reason, it is reasonable to suggest that juvenile justice system has inherent defects. It can only be implemented, if we have age determination system in our judicial and democratic setup.
Under newly enacted law, the investigation officer by virtue of Section 8 (1) requires to inquire into the age of the arrested person through medical testing with permission of the presiding court and this has to be done in case no documentary evidence of age is adduced himself by the arrested delinquent or not found by the officer himself during the course of investigation. At glance, investigation officer has to have a documentary evidence of age and this is a point- where issue arises giving discretionary power to the officer either to go for medical testing by virtue of section 8 (2) and/or tentatively record age on police investigation file on ‘Saza Slip’ without supporting it with evidence. It has been transpired in recent times in such like situations. Officers’ do not wish to state age of arrested person below 18-year in order to avoid giving rise to JJSA 2018 provisions.
In writer’s view JJSA 2018 can only rise, if and only if age is recorded in the police file below 18-year- otherwise not. Recording of age below 18-year giving rise to the role probation officer under Section 5 of JJSA 2018 that provided officer in charge of investigation to inform probation officer concerned about arrest of a juvenile within 24-hours of arrest. It is observed in Legal Awareness Watch (LAW) reports that the Reclamation and Probation Department simply negates rising of their duties under JJSA 2018 labelling ignorance and negligence falling on part of the police by not informing concerned probation officer about arrest of a juvenile. In legal and logical perspective reception of information about arrest of a juvenile may happen from any source by virtue of section 5.Its hibernation adds fuel to the system- which is already burning for many years.
In culmination it is submitted that Pakistan has been introducing laws after laws for protection of children who found themselves in conflict with law. Above stated laws enacted during British-India era for protecting of child delinquent but never received attention of authorities to implement those in addition to JJSA 2018. Those four major laws should have been implemented and promoted at all levels for betterment of juvenile justice system. A mere introducing of JJSA 2018 might not help our authorities to establish effective juvenile justice system. To the contrary, sister jurisdiction India signed CRC two years later than Pakistan it started late but now has a better and effective juvenile justice system.
Indian Act of 2014 is being followed by authorities and presiding officer/judicial officers in its letter and spirit an example of effective implementation of their domestic law could be of “Nirbhya” gang rape case-wherein a juvenile delinquent was only sentenced to serve five years in prison and adults had been hanged in April this year despite immense international and national pressure upon courts and authorities. It was believed that separate juvenile courts across Pakistan at provincial level would establish within three months of promulgation of JJSA 2018 however no such court until this date has been established in Punjab and Sindh. Moreover, under JJSA 2018 Juvenile Justice Committee had to be notified under Section 10 until today not a single such Committee notified across Punjab. However, in Sindh such a Committee has been notified in Shikarpur Division. JJSA 2018 shall be implemented in letter and in spirit if we have just age determination system to the reason that every child matters.
—The writer is an advocate of High Court, based in Lahore.
