3^rd Year, Law Student,
National Law University, Odisha (India)

Pakistan’s progress towards the protection of child rights was initiated by the ratification of the United Nations Rights of the Child, 1990, and the International Covenant on Civil and Political Rights, 1966, around thirty years back. Furthermore, the Society for the Protection of the Rights of the Child (SPARC) Report published in 2012 recorded around 1500-2000 juveniles being imprisoned in the country.¹ Moreover, 20% of girl children prisoners are placed at a higher stance to be victimized, though there is a slight difference in the overall pain suffered based on gender.
The Juvenile Justice System Ordinance (JJSO), 2000 has miserably failed in protecting juveniles as sentences are barbaric and medieval timed, especially in Sher Ali case. The sluggish implementation of JJSO has been massively unacceptable and its irreparable losses are beyond repair.
The Juvenile Justice System Act (JJSA), 2018 the successor of JJSO hasn’t been practically effective as minors continue to suffer discrimination and violence at police stations and behind prison walls.
Despite the country’s acceptance of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 in 2010 there aren’t explicit laws that criminalize the torture of children. Child offenders are common victims of torture, custodial death, and rape as in one such incident that occurred in Peshawar where a 14-year-old boy was found dead at the West Cantonment Police Station, Peshawar.² Despite the police officers who classified the death as suicide, the relatives claimed the child had been tortured.
Although Pakistan has formally recognized that young people who commit crimes should not be treated like adults, the criminal justice system in the country still lacks practical implementation of this principle. Every child who is involved in criminal activity is often the result of extreme conditions over which he/she has no control. Young people on coming into the criminal justice system can adopt a deviant identity and close contact with other criminals can also harden their criminal identity. The nature and scope of criminal responsibility attributed to their shoulders should be lowered as they aren’t mature enough to understand the consequences of their actions.³
On 6^th December 2004, a full bench of the Lahore High Court decided to strike down the JJSO in response to a petition filed by Farooq Naqvi whose son was sexually assaulted and then burnt to death by a group including a juvenile.⁴ In sense of an exceptional case, the Court cannot just deny appreciating the spirit of JJSO’s intention and ignore paying attention to the needs of children. The judgment of the Court has been a contradiction to the pursuit and delivery of justice.
Despite the JJSO stating unequivocally “it extends to the whole of Pakistan.” It has instead applied in just the four provinces namely Sindh, Punjab, Balochistan, and North West Frontier. However, the extension herein isn’t complete. The law is enforced in selective parts and other rights of young people continue to be denied. The country is one of the last countries wherein a blatant violation of CPC and customary international law continues.
The JJSO is slow in its operational sphere. Despite the Supreme Court of Pakistan in 2001 having directed the provinces to set up juvenile courts within six months, there is only 1 functioning in Karachi.
The JJSO provides the required protection of children and needs to be permanently strengthened. Article 9 and 11 of JJSO continues to lack proper implementation. Amnesty International till date receives reports of children who have been receiving long prison sentences, high rate of fines and death penalties. Due to the frequent mishaps and inability of JJSO to hold enough accountability that the non-governmental Human Rights Commission of Pakistan has stated that the JJSO remains “extremely poorly implemented.” The UN Committee on the Rights of the Child at its 34^th session wherein the focus point was to discuss the country’s second periodic report back in October 2003 also expressed its concern at the poor implementation of JJSO.
Article 5 of JJSO prohibits joint trials of children and adults. In a real sense, the same continues. The Lahore High Court in its judgment in 2004 pointed out that the courts ignore the same and bring evidence of the trial of an adult to the trial of a child charged in the same offense and tried separately but by the same judge.
The jurisdiction of JJSO remains unresolved and Article 4(3) hasn’t been followed in a due sense. This means juveniles are tried by special terrorist courts instead of special courts meaning the former doesn’t comply with internationally agreed trial standards.
And lastly, Article 12 of the JJSO states unequivocally that no child shall be awarded death punishment which is clearly in line with Article 37 of the Convention on the Rights of the Child. Amnesty International hopes that death penalties are enduringly abolished in law and in practice. The country is one of the last countries where blatant violation of CPC and customary international law continues. Amnesty also states it as a violation of Articles 3 and 5 of the Universal Declaration of Human Rights. The total number of juveniles being sentenced under the death sentence isn’t yet known to Amnesty.
The most recent case reported to Amnesty was Shahzad Hameed wherein the sessions court sentenced to death a 17-year student in 2004.
It has been exclusively stated that the minimum criminal responsibility in Pakistan is ‘seven years’. However, in case of Hudood Ordinances, a child can be made liable for punishments as soon as they reach puberty. It is noteworthy that other laws don’t specify any such minimum age. The JJSO has defined a child as a person who is under the age of 18 at the time of committing an offense. Despite its promulgation and widespread existence JJSO has still not been able to assert its valuable execution. Back in March 2011 around 27 District Panels of Lawyers were accordingly established. However, in terms of effective functioning, they have failed due to a lack of funds.
Despite its slowness in overall implementation, some progress is seen, In some cases, courts have taken account of the child’s interest. Like in August 2003 Peshawar’s juvenile court convicted two boys of drug trafficking sentencing them to five years imprisonment but later released them after their guardian gave an undertaking for their future good behavior. In another, Peshawar’s HC acquitted a child offender who was below 12 years at the commission of the offense.
There was an order from Islamabad HC that directed the immediate release of children detained in Adiala jail. This came as an instrumental step toward ensuring compliance with human rights. However, since the direction came from the court and not through the police following the law shows that the Juvenile Justice System Act, 2018 is the predecessor, and the Juvenile Justice Ordinance, 2000 seems ineffective. There is still a need for more legislation and policy-making to be made by the Parliament to solve persisting human rights issues.
On being questioned the human rights ministry stated unacceptable excuses for having failed to end the incarceration of the under-trial juvenile prisoners. They cited a “lack of funds” to submit surety bonds. Furthermore, around nine minors between the age group 10-15 have been forced into jails for having committed petty offenses. All of the above factors hint at the inherent failure of the state and its justice system.
Most child offenses in the country are lawfully sentenced to corporal punishment, life imprisonment, and the death penalty. Various law reforms have surfaced in some way or the other to prohibit corporal and capital punishment for child offenders, but the law seems rather complex and unclear in terms of interpretation. Also, the provided sentencing remains lawful in certain specified circumstances.
Moreover, JJSO doesn’t intend to repeal other laws rather it serves just as an addition to them. In times of conflict, the JJSO overrides other laws except in the case of ‘hadd’ offenses and cases wherein special courts are looking after drug and terrorism-related offenses.
Other relevant laws that include sentencing of child offenders are the Pakistan Penal Code 1860, the Criminal Procedure Code 1898, the CPunishment of Whipping Act 1996, the Anti-Terrorism Act 1997, the Control of Narcotic Substances Act 1997, the Hudood Ordinances 1979, the Sindh Children Act 1955, the Reformatory Schools Act 1897 and the Railways Act 1890.
The JJSO has specifically stated in Section 12 that no child shall be awarded the punishment of death. The section accordingly applies to children under 18 years of age at the time of the commission of the offense. However, child offenders can be sentenced to the death penalty for ‘hadd offenses.’
Under the JJSO no child can be given corporal punishment while in custody. However, the abolition of the Punishment of Whipping Act 1996 prohibits whipping activities except ‘hadd offenses.'
The JJSO doesn’t prohibit life imprisonment and in place, the child is sent to a borstal institution until 18 years.

Conclusion

Most child offenders are lawfully sentenced to corporal punishment, life imprisonment, and the death penalty. Despite various law reforms that have surfaced in some way or the other to prohibit corporal and capital punishment for child offenders, the law is rather complex and unclear in terms of interpretation. Also, the provided sentencing remains lawful in certain exceptional circumstances.
Based on the recommendations of the CRC there is an international human rights consensus that the Human Rights Council would urge the Pakistani government to prevent continuing any or other cruel, inhuman, or degrading treatment or punishment in respect of children. Furthermore, the country should prohibit corporal punishment in all settings. And lastly, raise the minimum age of criminal responsibility.