Sharafat A. Chaudhry & Dr Ejaz Hussain
To protect children from all kinds of exploitation, discrimination, marginalisation and consequent juvenile delinquency, legislative measures are not enough
Pakistan is committed to develop conditions that will ensure a meaningful life for juveniles in society and minimise the chances of their being vulnerable to deviant behaviour. The state is putting in its efforts to make society free of crime in general and juvenile delinquency in particular. The state considers juvenile justice an integral part of its justice system, within the inclusive context of social justice for children who come into conflict with the law or become victims of an offence. To implement the holistic view of social justice requires a comprehensive juvenile justice policy in particular and a social policy in general, which should aim at promoting child protection and juvenile welfare to minimise the necessity of intervention by the formal judicial process.
The Constitution of the Islamic Republic of Pakistan provides guidelines to address the matter of child protection. Chapter 1 of the Constitution (fundamental rights) is directly related to child protection. In Article 25, it is stated that all citizens are equal before the law and are entitled to equal protection under the law. There shall be no discrimination on the basis of sex alone. Nothing in this Article shall prevent the state from making any special provision for the protection of women and children. In chapter 2 of the Constitution (principles of policy), under Article 35, it is stated: “The State shall protect the marriage, the family, the mother and the child.” Thus, the state is constitutionally empowered to establish the equitable social and judicial institutions to promote the welfare and protection of children and prevent them from being susceptible to juvenile delinquency. Pakistan has already signed and ratified different conventions and treaties such as the Convention on the Rights of the Child (CRC) in 1990 and the International Labour Organisation convention on the worst forms of child labour in 2001. The country has also signed the second optional protocol to the CRC on the sale of children, child prostitution and child pornography.
As reform initiatives, amongst others, the Criminal Law Amendment Bill and the National Commission on the Rights of the Child Bill have already been introduced in parliament. The Criminal Law Amendment Bill proposes amendments and insertions to increase the minimum age to determine criminal liability, as well as criminalising acts like child pornography, sexual abuse, cruelty towards children and child trafficking. Similarly, the establishment of an autonomous and resourceful commission on the rights of the child, proposed in the National Commission on the Rights of the Child Bill, will be a landmark achievement to safeguard the rights of the child.
The only juvenile law, the Juvenile Justice System Ordinance, 2000, was struck down in 2004 by the Lahore High Court, which considered it to be unreasonable, unconstitutional and impracticable and held that parliament should enact a fresh law in order to address the identified infirmities in the Ordinance. However, an appeal against that judgment is still pending before the Supreme Court and the operation of the said judgment has been suspended until final adjudication. 2
Moreover, since 2009, the Law and Justice Commission of Pakistan and the Ministry of Law, Justice and Human Rights have been engaged in a lengthy and irksome process of national consultations in order to review the existing juvenile justice framework. Consequently, the Juvenile Justice System Bill, 2015 has been drafted by the Ministry of Law Justice and Human Rights on the basis of recommendations from stakeholders, although the bill is not yet tabled before parliament. In the recent consultation, it was discussed that, along with the law, a comprehensive juvenile justice policy should be in place for the effective implementation of the upcoming law.
Despite the number of measures Pakistan has taken to protect at-risk children and minimise the chances of juvenile delinquency, owing to poor socioeconomic indicators there are a number of children at risk in the country. Undoubtedly, the protection of children who are at risk, saving them from becoming juvenile delinquents and ensuring their rightful place in the social fabric is a challenge that requires individual as well as collective efforts. To protect children from all kinds of exploitation, discrimination, marginalisation and consequent juvenile delinquency, legislative measures are not enough. It also requires a comprehensive national juvenile justice policy that is built upon legislative reforms.
To begin with, relevant legislation is required to reform the national laws in the best interests of children by bringing the juvenile justice system at par with constitutional requirements and international standards. The determination of the age of an accused, to address the claim of juvenility, is of great importance. This can be achieved by devising an institutional mechanism to determine the age of an accused person (or juvenile), beyond the scope of a tentative or arbitrary assessment usually made by police officials. The recognition and establishment of a diversion system in criminal justice in Pakistan may prove a positive hallmark in juvenile justice procedures. There is a need to develop procedures that would allow children to be dealt with without resorting to formal judicial proceedings or trials (i.e. a diversion), wherever appropriate and desirable, provided that human rights and legal safeguards are fully respected. As a matter of state policy for juveniles, the notion of restorative justice should be recognised and enforced, instead of the prevalent adversarial and deterrent punishment system in the country.
A juvenile should be provided with basic criminal justice procedural safeguards, such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority. The principles of nondiscrimination, including gender sensitivity, upholding the best interests of the child, the right to life, survival and development and respect for the views of the child must be recognised as an integral part of the juvenile justice system. Confinement or detention should be considered a last resort. The period of placement (confinement) should be considered reformatory and measures should be taken for the child’s social reintegration. The training of concerned officials, consultation and coordination, research and advocacy and budgetary allocations to implement the reform package are considered essential features of a future juvenile policy in Pakistan. To conclude, we will emphasise the notion that a nation that protects its children and adults protects its today and tomorrow.