Ariba Fatima* & Omar A. Ranjha**
*Ariba Fatima is a final year law student at the London School of Economics and Political Science.
*Omar A. Ranjha is a final year law student at the University of London International Programmes and is currently working as a Research Intern at Justice Project Pakistan.
In March 2021, the Supreme Court of Pakistan in an unprecedented verdict commuted the death sentence of Muhammad Anwar. As a convict languishing on death row for the past 23 years, he was pardoned after it was discovered that he had been a juvenile at the time of the alleged offence. According to Justice Project Pakistan, Anwar was subjected to multiple death warrants and extreme prison conditions that have damaged his mental health permanently. Although the verdict has opened a new chapter of progressive jurisprudence, one of the many questions it puts forward is how far the juvenile justice system of Pakistan is in line with minimum international human rights standards.
This blog post will attempt to provide an overview of the juvenile justice system (JJS) of Pakistan in light of its legislation and jurisprudential development, whilst demonstrating the various discrepancies between Pakistan’s existing framework with the international legal instruments it has ratified. The overarching issue of age determination will then be explored in relation to the death penalty of juveniles. Furthermore, recommendations will be put forward in order to facilitate the government in making swift changes to the existing set-up, hopefully moving toward effective implementation of the law.
Pakistan’s obligations under International and Domestic Law
Under the newly enacted Juvenile Justice System Act 2018 (JJSA 2018), which replaces the Juvenile Justice System Ordinance 2000, a juvenile is described as “someone who has not attained the age of eighteen years and may be dealt with for an offence in a manner which is different from an adult.” Article 3(1) of the Convention on the Rights of the Child (CRC), to which Pakistan is a signatory, states that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authority.” Similarly, Article 24 of the International Covenant for Civil and Political Rights (ICCPR) also provides for the protection of children on the part of their family, society and the State. This obligation to provide protection to children is also reflected in Article 35 and 25(3) of the Constitution of Islamic Republic of Pakistan, 1973 which provides that the State shall protect the child, and empowers it to make special provisions for the protection of children. It is within this wider legal context that this blog will evaluate the effectiveness of the national framework in this area.
To implement the (CRC), which Pakistan ratified in 1990, the Juvenile Justice System Ordinance 2000 was introduced (JJSO 2000). It set out to provide protection to children who were involved in criminal litigation, ultimately aiming to rehabilitate them in society. This was seen to be a milestone achievement, as it was the first federal law regulating the protection of juveniles. However, what was initially hailed as a meaningful step towards a safer society for children proved to be a disappointment, as juveniles were met with an increased onslaught of barbaric punishments. This widespread criticism finally led the Lahore High Court in Farooq Ahmed v Federation of Pakistan (PLD 2005 Lah 15) to conclude that the legislation was inconsistent with Articles 4 (right to be dealt in accordance with law), 9 (right to life and liberty) and 25 (right to equality) of the Constitution. Resultantly, it was struck down. Nearly 13 years later, Pakistan enacted the Juvenile Justice System Act 2018 to bring the juvenile justice system fully in line with the CRC.
Comparative Analysis of JJSO 2000 and JJSA 2018
How exactly does the new legislation differ from its predecessor? One of the features that brings the newly enacted law in conformity with the CRC is the introduction of the term “best interest of child” being defined as “the basis for any decision taken regarding the child to ensure fulfilment of his basis rights and needs, identity, social well-being, physical, emotional and psychological development.” This wider scope allows for a more holistic examination of how the well-being of children is affected, as it goes beyond simply examining their physical safety. On this note, the term “borstal institution,” which previously referred to a place used for the detention of juveniles, has been replaced by the less intimidating “Juvenile Rehabilitation Centre.” Here, juveniles under detention may access education, vocational or technical training. To supplement this, these centres would include certified institutions, juvenile training institutions, borstal institutions, vocational centres, dar-ul-amaan, and women crisis centres. Hence, a more holistic and arguably more humane approach has been attempted.
There are similarities between both legislative regimes too. Although Section 4 of the JJSO 2000 provided for the establishment of separate juvenile courts to address the specific needs and sensibilities of vulnerable children, this idea was never executed. Similarly, although JJSA 2018 also incorporated a provision for the designation of juvenile courts within a period of three months of its commencement, there remains a persistent lack of implementation.
Another feature that distinguishes JJSA 2018 from JJSO 2000 is the introduction of the diversion process, which allows the juvenile offender to avoid undergoing formal judicial proceedings. Instead, the matter is referred to the Juvenile Justice Committee for disposal with the consent of the accused. According to an assessment carried out on 45 different studies from 1972 to 2012 diversion succeeds in reducing repetition of crime in contrast to the traditional litigation system. The initiation of this new mechanism will not only reduce stigma attached to juvenile offenders, but also minimize the coercive entry of individuals back into the society, hence aligning with the objectives of CRC.
Age Determination Protocols for Juveniles
As per Article 40(b)(iii) of the CRC, it is a minimum guarantee for children accused of having infringed penal law to ‘have the matter determined without delay by a competent, independent and impartial authority.’ In light of this, it is fair to assert that incorrect age determination threatens the aforementioned impartiality requirement, as juveniles are at risk of being tried as adults rather than children. In turn, the fairness of the trial as a whole may be doubted. Therefore, swift and effective age determination mechanisms are essential to ensure justice is served.
According to the CRC, states have an obligation to ‘effectively investigate claims of juvenility.’ As per the recommendations of the CRC’s Committee in 2016, effective investigation to determine age entails the development of ‘mechanisms […] to ensure that a child undergoes a proper investigation to establish his/her age in the absence of any proof,’ with children being ‘given the benefit of the doubt when there is conflicting or inconclusive evidence’. The fact that this benefit of the doubt may be given to accused juveniles illustrates the magnitude of importance that international law places on ensuring that young people are protected from the censure of criminal conviction. However, this approach is evidently not followed in Pakistan which has one of lowest birth registration rates in the world. JJSA 2018 certainly attempted to correct this state of affairs, but the changes it introduced were limited in scope and marred by lack of implementation. Under Section 8 of JJSA 2018, the accused’s age will be determined by the officer-in-charge at the police station or an investigation officer with reference to ‘birth certificates and education certificates.’ The legislation recognises that such formal documentation may not be available to many young people, and hence allows for medical examinations to determine age in cases where the accused ‘physically appears or claims to be a juvenile.’ However, this is manifestly unfair. Whether or not a person physically appears to be a juvenile is subjective; therefore, those juveniles who appear to be older – by no fault of their own – may be unfairly disadvantaged. There is also no uniform criteria for determining this, thereby potentially undermining the legitimacy of whatever conclusion is reached. It is posited that the ability of accused juveniles to offset this disadvantage by ‘[claiming] to be a juvenile does not remedy the unfairness inherent in the law’. Not only will many juveniles be unaware of their right to speak up and demand medical examination, either because of their age or distressed state at the time of investigation, it is principally unfair for the law to place the onus of age determination on the young person themselves. In either case, the risk of arbitrary decision making remains high.
Death Penalty in the case of Juveniles
This flawed investigation in the age determination of juveniles poses serious ramifications, often leading to death penalty. Under the international legal instruments – notably the CRC and ICCPR, the execution of offenders below the age of 18 years is strictly prohibited. This view has also been reiterated under Section 12 JJSO 2000 and Section 16 of JJSA 2018 which expressly prohibit awarding death penalty to a person who was a juvenile at the time when the offence was committed. However, despite this prohibition and criticism from the international community, Pakistan continues to sentence and execute juvenile offenders. Following the horrific saga of 2014, when the Army Public School in Peshawar was attacked, Pakistan lifted its six year ban on death penalty. Resultantly, 420 prisoners were executed, out of which 6 were children. One example is Aftab Bahadur, a poor teenager from the Christian community accused of murdering a woman and her two sons. His government-issued documents suggested he was 15 at the time the offence was committed. Subsequently, he was executed on 10 June 2015 after spending 23 years on death row. Similarly, Ansar Iqbal was sentenced to death on the basis of the police’s visual assessment of his age and later executed in September 2015. According to an analysis conducted by Justice Project Pakistan and Reprieve, around 800 juvenile offenders are currently on death row. The irreversible nature of such national and international violations mandates the Pakistani government to carry out an independent investigation into all death row cases, predominantly those concerning juveniles.
Way forward for Pakistan
While JJSA 2018 has attempted to rectify some shortcomings of JJSO 2000, it fails to manifest them into reality. So what steps can the government of Pakistan take to ensure that juvenile offenders are treated in accordance with the accepted international human rights standards? Firstly, the government should reinstate the moratorium on the death penalty in order to fulfil its obligations under the aforementioned national and international legal instruments. Secondly, an age determination protocol needs to be set out starting from the trial level to post-conviction. Thirdly, there must be separate juvenile courts and juvenile justice committees established, as envisaged by JJSA 2018. Finally, an annual report should be published by the government that reflects the total number of juvenile offenders on death row to foster transparency and public accountability.
*Disclaimer: Any and all opinions and views represented in this blog are personal and belong solely to the author(s) of the blog and do not represent the opinions or views of the Centre for Human Rights.