Advocate Mehwish Jamal
“The Juvenile Offenders in Gilgit Baltistan are deprived of their rights, to be treated under Juvenile Justice System thus resulting in serious Human rights violations that need to be curbed through application and implementation of legislation designed on the pattern of Juvenile Justice System Ordinance 2000 for Gilgit Baltistan”.
In Pakistan, Juvenile justice is primarily governed by the Juvenile Justice System Ordinance (JJSO), promulgated in 2000 but still not fully implemented throughout the country, including Gilgit Baltistan (GB). This Ordinance was initially applicable only to the four provinces Sindh, Punjab, Balochistan and Khyber Pakhtunkhwa. Implementation rules were laid down for the Ordinance in these provinces and in Islamabad Capital Territory by 2002. The Ordinance has since been extended to the Federally Administered Tribal Areas (FATA), the Provincially Administered Tribal Areas (PATA) and the Gilgit Baltistan by way of notification; and it was committed that implementation rules would be framed; however no such rules could be laid down even to date.
The crime rate among juveniles is little and the number of children in conflict with the law is negligible. There are four jails in GB. As of October 31, 2017, four male and female juvenile offenders were detained in GB. Juvenile offenders were not kept in separate barracks and there is no separate or exclusive facility for juvenile inmates. Majority of the delinquents are kept with and dealt with adults criminals’, ignoring the root causes of antisocial behavior that exist in Jails. The delinquents silently suffer from a variety of mental health and skin problems in jails. There is a need to seriously study these disorders and must be provided with medical facilities, so that when they are released from the prison they could spend a peaceful life. The concept of Reformatory Schools, Certified Schools, and Borstal Institution has not been realized despite the presence of law relating to them. In Gilgit Baltistan there are no Reformatory Schools, Certified Schools, and Borstal Institution for male and female juveniles. Female juvenile offenders are kept with adult women prisoners and there is no provision in any prison in Pakistan to keep them separately. There is no law in Gilgit Baltistan for setting up Borstal Institutions.
The JJSO, 2000 is not enforced in GB but the new law, Gilgit Baltistan Child Protection Welfare and Welfare Act, 2013 makes a reference to JJSO for convicting juveniles above 15 years. The fourth chapter of it deals with the subject of juvenile justice. It says that if the age of a child is above fifteen and below the age of eighteen, then the child will be treated in accordance with the provisions of Juvenile Justice System Ordinance 2000, provided that the Court may order the community service up to the imprisonment period prescribed for the offence. The JJSO did not repeal other laws on juvenile justice, but applies in addition to them. Where there is a conflict between legislation, the JJSO overrides other laws, except in relation to hadd offences (offences with penalties fixed under Shariah) and cases in special courts dealing with drug and terrorism offences.
Law reform has not yet achieved complete abolition of corporal punishment as a sentence for crime. Article 12 of the Juvenile Justice System Ordinance 2000 states that no child may be given corporal punishment while in custody: it is not clear that this prohibits corporal punishment of children not given a custodial sentence, though it is reportedly interpreted as prohibiting corporal punishment as a sentence of the courts. The Government reported in 2017 that according to the Ordinance “degrading punishments such as death, handcuffing, or any other corporal punishment shall not be awarded to the children”. The Abolition of the Punishment of Whipping Act 1996 prohibits whipping as a sentence under any law but it does not apply to the Federally Administered Tribal Areas (FATA), the Provincially Administered Tribal Areas (PATA) and the Gilgit Baltistan, where children could be sentenced to whipping under articles 6 and 12 of the Frontier Crimes Regulation 1901. The Frontier Crimes (Amendment) Regulation 2011 removed these whipping provisions. The Abolition of the Punishment of Whipping Act does not apply to hadd offences (article 3). Some laws against hadd offences were amended in 2006 but they continue to punish these offences with corporal punishment and are applicable to children from the onset of puberty. The Penal Code 1860 and the Code of Criminal Procedure 1898 provide for the penalty of qisas, a punishment causing similar hurt at the same part of the body of the convicted person as s/he caused to the victim. The Penal Code states that no qisas can be ordered when the offender is a minor (art. 337-M), but a minor is defined as a male under the age of 18 years (art. 299), allowing for the punishment of qisas to be ordered for females.
Determination of age of Juvenile Offenders is a crucial issue in Pakistan’s Juvenile Justice System. This issue goes to the spirit of Pakistan’s Juvenile Justice System Ordinance, 2000 (JJSO) as it is after the determination of his/her juvenility that an offender can avail the rights available to him/her and a Juvenile Court assumes its jurisdiction under the JJSO. Equally important, however, is the role of the law-makers to set right the legislative inconsistencies to resolve the issue by amending and consolidating the law relating to juvenile justice system.
Pakistan has both national and international obligations to make serious efforts in ensuring effective protection of human rights of the children in conflict with law. Pakistan has entered international commitments when it ratified the CRC which emphasizes the best interest of the child and its right to special care and assistance.
The world accepts the theory that offenders are not born but are produced by the society where they are living in. Children are said to be the future leaders of a nation but in GB the poverty ridden children suffer from the day they first open their eyes in such an environment. Poverty and Illiteracy are also considered as the main causes of all crimes. It is evident from the analyses that motivated by law violator, and training by adult criminals in Jail turn them into criminals when the society denies accepting them. Unstable or large families without adequate means or with criminal tendency in the family are also taken as the causes of juvenile delinquency.
Determination of age of juvenile offenders is the most crucial issue pertaining to an efficient juvenile justice system in Pakistan. Different laws provide different age limit for criminal liability. This inconsistency has rendered children, a disadvantaged group, susceptible to discrimination and unfair treatment. In order to fulfill its national obligation under the constitution as well as international obligations under the CRC, the State should consolidate juvenile laws and adopt uniform legislation, compatible with international standards.
The contributor has a LLB degree in Shariah and Law from IIUI. She is currently studying to get her LLM degree in Human Rights Law from IIUI.