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UNIVERSITY OF KARACHI

Juvenile Justice System


Ordinance 2000 is failed an
attempt to decrease
Juvenile Delinquency
The Assignment will share light on the failed
legislative attempt in view of the Constitutional
provisions to make measures to protect the
juvenile from further exploitation and a minor
step taken to decrease the juvenile delinquency in
the society

Course Title:
Course Code:
Farah Khan, Muhammad Bilal Rashid and Hafiz Sarmad
6/28/2018

An Assignment submitted to Prof. Dr. Naima


2

Introduction:

The Fact that juvenile delinquency is a phenomenon which no matter how hard
we try to eradicate is still incepted deeper in the fabrics of the society and it shall exist. In
this assignment an attempt is made to shed some light on the legislative attempts to
combat the aftermaths of the delinquent behavior in the juvenile which results into
incarceration firstly and later on a process of rehabilitation to reintroduce these juveniles
while they are detained in the correctional institutes.

The criminal justice system as far as the juveniles are concerned rest mostly on
the principle of rehabilitation. The legislator and executives have made an attempt to map
out a system for reintroducing these inmates to the society, incarcerated after they
indulging into an delinquent behavior, detained in the correctional institutes. The
intention of incarceration is to provide rehabilitation so that they can keep away from
repeating the same delinquent behavior.

The Juvenile Justice System Ordinance 2000 (hereinafter referred as JJSO 2000)
does however separates the juveniles from habitual, hardened and adult criminal which
gives them an opportunity to reconstruct their behaviors. This separation operates not
only in courts but a separate place for detention of these inmates is provided termed as
"Youthful Offenders Industrial School", the law in fact does not address on the issue of
rehabilitation in detail. There is no mechanism provided in the JJSO 2000 advocating the
proper procedure laying down guidelines and structure of rehabilitation process.

This is not the first law in relation to juveniles however this is the first law which
treats juveniles as separate and special individuals and provides for a segregated system
of trial and incarceration, the JJSO is unique in that sense, the law is applicable in the
whole of Pakistan, which makes it a Parliamentary Act and it shall take precedent over
other provincial laws.

In this Assignment an attempt is made to showcase that the efforts of the


legislator are insufficient, as the law lacks in various aspects. The improper
implementation of JJSO 2000 also contributes in the insufficient efforts of the legislators.
The problem of Juvenile delinquency has drastically increased in Pakistan in last few
years, and prima facie the efforts of the administration which includes the courts,
correctional institutions and legislators are insufficient in coping up with the increase
criminality in the juveniles.
3

In the end the authors have made certain suggestions for the improvements of the
law, which could bring some reform in the system.

Definition of juvenile delinquency:

The term "juvenile" means a young person1, the legal sense the term is used for
the class of people aged 13 to 18. These are the class of people under criminal law
considered as those who cannot be held fully responsible for their criminal acts. The age
of culpability is most of the jurisdiction is set to 18 years. The term "delinquency" is
defined as "a behavior displayed by young people, which is illegal and not acceptable” 2.
Juvenile delinquency therefore means "the habitual committing of criminal acts or
offences by a young person, especially one below the age at which ordinary criminal
prosecution is possible".

Howard Becker has referred to four types of delinquencies;

a) Individual delinquency: This refers to delinquency in which only one individual is


involved in committing a delinquent act and its cause is located within the individual
delinquent.
b) Group-supported delinquency: In this type, delinquencies are committed in
companionship with others and the cause is located not in the personality of the
individual or in the delinquent's family but in the culture of the individual's home and
neighborhood.
c) Organized delinquency: This type refers to delinquencies that are committed by
formally organized groups. This concept refers to the set of values and norms that guide
the behavior of group members encourage the commission of delinquencies, award status
on the basis of such acts and specify typical relationships to persons who fail outside the
groupings governed by group norms.
d) Situational delinquency: Situational delinquency provides a different perspective, here
the assumption is that delinquency is not deeply rooted, and motives for delinquency and
means for controlling it are often relatively simple. A young man indulges in a delinquent
act without having a deep commitment to delinquency because of less developed
impulse-control and/or because of weaker reinforcement of family restraints and because
he is relatively little to lose even if caught.

The learned judges of the Hon'ble High Court of Lahore in a case reported as
PLD 2000 Lahore 449 has observe as follows;

1
Merriam Webster Dictionary
2
ibid
4

"We must realize that children are special class of people. They on account of
their age and innocence are not the best judge of what they need for health and
harmonious growth; they are subjected to violence and injustice and the irony is that they
cannot bring their causes to the courts. At times they do not know how badly they have
been wronged. It is precisely for these reasons that there is a global concern for their
rights and causes. Every civilized society is doing its bit to evolve an environment, in
which a child may breath and grow on an air of security, i.e. a society where their rights
are protected.”

Article 25 of the Constitution3:

Article 25 of the Constitution enacts the principle of "equality of citizens". The


Article is in two folds, the first part of the Article enacts that the all the citizens are
subject to equal treatment/protection of law and there shall be no discrimination on the
bases of sex. The second portion enacts that the State shall not be prevented from making
special laws for the protection of woman and children.

The Constitution of any country embodies rules and principles under which the
country is governed. The Constitution has made it incumbent upon the state to make laws
for the protection of woman and children. The Constitution has itself treated these two
classes of people as special classes of people, for which special laws are to be made to
make sure that they are protected. The special enactments for the protection of children
are inferred from the principle embodied in Article 25 of the Constitution.

UN Convention4:

In the Universal Declaration of Human Rights the United Nations proclaimed that
a child is entitled to special to special care and assistance. The international Convention
on the rights of Child5 to which Pakistan is signatory is the culmination of the endeavor at
the international level to establish a society whereby a child is ensured a quality living, a
living which promotes his physical and intellectual growth, protects him from abuse and
molestation and assists him in the making of healthy citizen.6

The mandate of the Convention can be explained as follows;

3
Constitution of Islamic Republic of Pakistan 1973
4
United Nations Convention on the Rights of Child
5
Held on 12th December 1989
6
Laws Relating to Children by M. Ilyas Khan, 4th Edition
5

"1. States Parties shall take all appropriate legislative, administrative, social and
educational measures to protect the child from all forms of physical or mental violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including
sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who
has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the
establishment of social programs to provide necessary support for the child and for those
who have the care of the child, as well as for other forms of prevention and for
identification, reporting, referral, investigation, treatment and follow-up of instances of
child maltreatment described heretofore, and, as appropriate, for judicial involvement."7

The Convention enjoins the signatory countries in under the following terms;

"States Parties undertake to protect the child from all forms of sexual exploitation and
sexual abuse. For these purposes, States Parties shall in particular take all appropriate
national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials.”8

History of laws for the protection of Juveniles:

The Chief Justice of the High court of Sind Mr. Justice (r) Mamoon Kazi had
stated in the foreword of the 3rd Edition of the Laws Related to Children that "the
methods of dealing with juveniles offenders have undergone drastic changes in many
countries of the world. juvenile delinquency to a great extent is linked with socio-
economic changes, which are taking place in different societies. in recent years have
witnessed many important developments in almost every aspect of living. such changes
have also made their mark on our society in Pakistan. However, lawmakers in Pakistan
have failed to keep pace with such developments"9

In the Year 1989 on 20th December, the United Nations has introduced the
Convention of the Rights of Child, which was adopted and rectified by Pakistan in
November 1990, the rectification made Pakistan obligatory to bring about changes in the
laws relating to children in accordance with the UN Convention.

7
Article 19 of the United Nations Convention on Rights of Child 1989
8
Article 34 of the United Nations Convention on Rights of Child 1989
9
Supra FN 4
6

Article 4 of the UN Convention laid down that the states parties shall undertake
all appropriate legislative, administrative and other measures for the implementation of
the rights recognized in this convention.

Pakistan after rectifying the Convention took 5 years in making the necessary
changes in the legislation related to children. Finally in the year 1995 a Bill "Child
Offenders Act 1995" was introduced but it remained a mere bill as the political party
introduced the enactment was no longer remained in power. Prior to this Bill each
province has its own law related to the children, Sind Children Act 1955 has been
applicable to the province of Sind, Punjab Children Ordinance 1983 and Punjab Youthful
Offenders Ordinance 1983 governed in the province of Punjab. However there have been
no special laws dealing with child offenders in the province in Khayber Pakhtoonkhaw
and Balochistan. After almost a decade Pakistan has finally enacted the first law which
was entirely made/drafted/legislated for the children. The Juvenile Justice System
Ordinance 2000 was enacted and made applicable in the whole of Pakistan.

Enactment of JJSO10:

The preamble of the JJSO 2000 lays down that it is expedient to provide for
protection of children involved in criminal litigation, their rehabilitation in society, re-
organization of juvenile court and matters connected therewith and incidental thereto.
The JJSO 2000 however do not cover other aspects relating to children, which have been
enumerated in the UN Convention of the Rights of the Child. It is for the purpose that
Section 14 has been promulgated which lays down that the provisions of the Ordinance
shall be in addition to, and not in derogation of, any other law for the time being in force.
Thus Sindh Children Act 1955 in the province of Sindh and Punjab Children Ordinance
1983 and Punjab Youthful Offenders Ordinance in the Province of Punjab continue to
operate. If any provision of the JJSO 2000 is inconsistent with a provincial enactment, it
shall deemed that the Act of Parliament shall prevail over the Provincial Act, and the
inconsistent provision shall be void to the extent of its repugnancy.11

Characteristics of JJSO12:

Despite of all the defaults in the legislation the JJSO 2000 was admittedly a
unique legislation for the reasons that it addressed issues and legal avenues which were
never addressed before. The highlighting factors are examined below;

10
Juvenile Justice System Ordinance 2000
11
Article 143 of the Constitution of Islamic Republic of Pakistan 1973
12
Supra FN 8
7

i) Definition of Child: The word child has been defined to mean a person who at the time
of commission of an offence has not attained the age of eighteen years 13. This is for the
first time that the word "child" with reference to children enactment has been defined. 14
Sindh Children Act, however referred the word "child" as a person who has not attained
the age of 16 years at the time of initiation of any proceedings against him under the
Act15 or at the time of his arrest. Section 4 of the Act16 provides Definition clause, it
however does define the word "Adult"17, Section 4(b) of the Act18 it goes on stating that
any expression which is not defined in this Act19 shall have the same meaning as
provided under the Code of Criminal Procedure 1898.

The Cr. P. C20 nowhere defines the term "child". The Pakistan Penal Code,
provides definitions for various terms used under the criminal law, however the term
"child" was not provided in those definition. Sections 82 and 83 of the PPC21 does
mention the term "child" as an individual who does not bear any criminal liability and put
child in the class of people who are concerned as an exception for commission of crime.

ii) Establishment of special courts: Provisions contained in Section 4 of the JJSO 2000
are related to establishment of Specials courts for the Juvenile offenders. The JJSO
provides that the Provincial Government in consultation with the Chief justice of the
High Court would establish a juvenile court for any local area within its jurisdiction. The
Section 4 of the JJSO further enacts that the judges of the Juvenile courts decide a case
with a period of 4 months. The language of the Section is not mandatory, therefore it
leads to considerable amount of delay in conclusion of cases.

The Legislature intended that separate courts for the juvenile offenders be created,
however the administrative failure in the country lead to appointment of District and
Sessions judges, as well as Magistrates to hear cases of juvenile in the same premises
where the adult offenders were be trialed. The lead to a gross and continued
misapplication of the law. Nevertheless the JJSO is the only enactment which prescribed
such procedure. It has been observed in a country like Pakistan that due to lack of
administrative initiative a legislation which is meant to be for the betterment of a class of
people loses its effect. Same is the case with the JJSO 2000.

13
Section 2(b) of JJSO 2000
14
Supra FN 4
15
The Sindh Children Act 1955
16
Supra FN 13
17
Section 4(a) of The Sindh Children Act 1955
18
Supra FN 13
19
Supra FN 13
20
Code of Criminal Procedure 1898
21
Pakistan Penal Code 1860
8

iii) Mandatory provision for legal assistance: The general principle embodied in the
criminal law is that "every person facing a criminal trial is entitled to be represented by a
counsel". This principle is not only a part of Criminal procedure Code, but it also
mentioned in the Constitution of Islamic Republic of Pakistan in Article 10-A under the
headings of the "due process of law". The JJSO 2000 reassures that a juvenile offender is
being represented through a counsel since the very beginning of the trial. In cases where
no counsel has been engaged by the juvenile offender the state shall provide a counsel on
state expenses.

iv) Separate trial of juvenile: The JJSO 2000 prohibits joint trial of juvenile offenders
with adult persons. The law specifically demands that in a case where a juvenile is one of
the accused persons, the case of the juvenile will be separately conducted. The Judge will
frame a separate charge on the juvenile offender, court shall separately record evidence in
the case of juvenile and a separate judgment is announced22.

This provision is again badly misinterpreted, the later sections of the JJSO 2000
provide that the juvenile court can restrict the people who could be present in the court
where the case of a juvenile is proceeding. The inference through this later provision can
be drawn that the intent of legislature was to provide a opportunity to the juvenile to have
a trial separately and in secrecy, so that the chance of rehabilitation shall remain intact.
This was only possible if separate special courts are constituted for juvenile offenders.
Nevertheless this provision of the JJSO 2000 does guarantee that a juvenile offender if he
is nominated with several other offenders shall have the right of having a separate trial
and the judge is allowed to consider the case of the juvenile separately and not
collectively.

v) No exposure to Media/ Prohibition of trial in presence of any person not concerned


with the trial: The JJSO 2000 with an intent to protect the identity of the juvenile
offender for further protection of their future enacted prohibitory section for publishing
name, address and picture of the juvenile offender facing the trial23. Unfortunately we
live a society where media in crave of news disregard necessary prohibitions of law,
which results into gross violations of right of privacy.

In the cases of juvenile it is not only an infringement of right of privacy of


juvenile offender but it is also a sheer violation of the procedure provided in the JJSO
200. The JJSO further enacts that the Juvenile court can restrict the presence of
unconcerned persons when the case of a juvenile offender is proceeding.

22
Section 5 of the JJSO 2000
23
Section 8 of the JJSO 2000
9

vi) Easy probation: The juvenile court under the JJSO 2000 is empowered to release any
convicted juvenile on probation24. The Section enacts that the juvenile court can released
an convicted juvenile on probation based on his good behavior. During the time of
probation the juvenile convict shall be subject to strict monitoring. The purpose of this
Section is to protect the child from unnecessary incarceration, the purpose of the penal
system as far as the children/juvenile are concerned is based on rehabilitation.
Rehabilitation demands monitoring and not incarceration.

The JJSO 2000 has enacted a very simplistic procedure for probation compare to
the one which is provided under the Cr. P. C25. These provisions of probation are not
exercised to its core. The government has miserably failed in appointing probation
officers, as per a latest survey there are only 2 probation officer for whole of Sindh. This
administrative failure operates as a restraints for courts in exercising the powers of
releasing the offender/convict on probation, and left with sole option of incarceration.

vii) Flexible Bail procedure: The general principle for bail under the Cr. P. C26 is that bail
is a concession which is given by the court in cases of non-bailable cases. The Section
49727 lays down certain rules under which the accused can make an application for grant
of bail. The grounds for bail generally are;
i) Further inquiry
ii) Gender
iii) Age
iv) Medical grounds
v) Statutory delay, this will not be available in case delay in conclusion of trial has
occurred due to the Applicant or his counsel. The JJSO 2000 under Section 10 enacts the
same grounds of bail, however the language of the Section makes the grant of bail a right
and not a concession. The Juvenile court can only reject bail of juvenile when the
offender is;
a) a habitual offender
b) has committed an offence which heinous, brutal, sensational in character.
c) has committed an offence which is shocking to the public morality
d) is a previous convict of an offence which is either punishable with death or
imprisonment of life. The grant of bail in case of delay, the principle is that even if the
delay is occasioned by the counsel of the offender, it shall not affect the right of bail if
the statutory period is complete.

24
Section 11 of the JJSO 2000
25
Criminal Procedure Code 1898
26
Super Section 496/497
27
Bail in non-bailable cases, Criminal Procedure Code 1898
10

Section 10 of the JJSO 2000 is a long awaited and very important provision of
law, which has been brought in the JJSO 2000 for the first time, prior to this none of the
Acts pertaining to the subject of juvenile/child protection discussed this issue. Section
49728 speaks of granting bail to child of the age of 16, but it was not a mandatory section,
and the matter was left to the discretion of the courts. The JJSO 2000 by enacting Section
10 has cleared this ambiguity.

viii) Informed arrest of juvenile: No child/juvenile be kept under detention either in


police custody or in judicial custody without informing the guardian/parents of the child,
or if no guardian is traceable to the probation officer. The Police officer caused arrest of
the child shall inform the guardian/parent/probation officer at what time, place and day
the child will be produced before the magistrate having the jurisdiction.

This Section simply prohibits the custody of the child in any police station
without informing the guardian as illegal. The general principle under the law is that the
police is duty bound to produce the custody of arrested accused within 24 hours before
the nearest magistrate and obtain remand if the physical custody is required for further
interrogation, however in cases of juvenile, if a juvenile is arrested the police within 24
hours produce the custody before the Magistrate, but before the police shall inform the
guardian of the juvenile regarding the arrest. The wisdom behind the section is to protect
the child from any maltreatment with the hands of police, and removal of possibility of
illegal confinement.

ix) No death penalty: Section 12 of the JJSO 2000 prohibits awarding capital punishment
to a child. Imprisonment for life may be awarded to a child. This is a major departure
from previous enactments on the same subject. It may be recalled that the JJSO 2000 was
promulgated as it was an overdue demand of the International community and the
Convention of the Rights of the Child which was ratified by the Government of Pakistan.
Article 3729 in sub-article (a) states that "No child shall be subject to torture or other
cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life
imprisonment without possibility of release shall be imposed for offences committed by
persons below 18 years of age".

x) No handcuffs: The Section 12 of the JJSO provides that the juvenile offenders while
they are in custody of the jail shall not be hand cuffed when brought to court, Nor they
will be subject to any corporal punishments. The prohibition of handcuffs is for the
reasons to save these children from humiliation. However it is common to witness in
courts that the custody of the juvenile offender when brought in court the inmate is under

28
Criminal Procedure Code
29
Convention of the Rights of Child
11

handcuffs. Unfortunately the courts take the lenient view of this obvious violation of law
because the of administrative issues and shortage of police staff.

Failed Attempt of Protection from Exploitation:

It has been discussed in the proceeding paragraphs that the Act of Parliament
prevails over the Provincial law. It has also been pointed out that the JJSO 2002 does not
address various issues which were highlighted in the Convention and were supposed to
be catered in this legislation. On the contrary the Provincial enactments are quite
exhaustive in their application to various aspects of problems relating to children. The
JJSO 2002 do not provide for establishment of Industrial Schools, certified Schools,
remand homes and other institutions, societies and voluntary association who need and be
admitted in such institutions for a various reasons. No measures for the care and
protection of destitute and neglected children are indicated in the JJSO 2002. There is no
mention of special offences in respect of children as required under Part VI of the Sindh
Children Act 1955, neither there are any provisions for detention of children and youthful
offenders and for maintenance and treatment of committed children.

A constitutional Petition was filed before the Hon'ble Sindh High Court which
was later on treated as Public Interest Litigation, wherein following prays were made
before the Hon'ble Sindh High Court30;
a) To declare that various sentences awarded to the Juvenile in contravention of the
provisions of Sindh Children Act 1955 are illegal, ab-initio and corum non-judice.
b) To establish Juvenile Courts in the area notified under the Sindh Children Act 1955 as
required under Section 9 of the Said Act.
c) To declare that no court competent to try juvenile under Section 8 of the Sindh
Children Act shall try any juvenile along with an adult in contravention of Section 10 of
the Sindh Children Act 1955.
d) To direct the authorities not to bring the juvenile to the court with hardened and
desperate criminal and to handcuffs and fetters.
e) To declare that there should be proper certified schools for juvenile offenders with all
the arrangements and facilities as provided under Sindh Children Act 1955.
f) To declare that there should be separate juvenile Courts for each district of Karachi and
other parts of Sindh.
g) To declare that there should be separate vehicle for these boys to take them to the
courts and for trial and back.

30
This Constitutional Petition was filed prior to the enactment of JJSO 2000, however it was after Pakistan and
ratified the UN Convention on Right of Children 1989.
12

h) To declare that there should be medical facilities for these juvenile offenders and other
training facilities as provided under the Acts.
i) To declare that the trial of these young offenders be conducted without delay and
should not be allowed to rot in Remand Home for months without trial.
j) To order any other/further/better/additional relief of relives/facilities in "remand home"
this Hon'ble court deems fit and proper.

In the result of the Constitutional Petition the Hon'ble High Court has directed
that it would be advisable for the Government of Sindh to promulgate a consolidated law
on the subject, incorporating substantial provisions of the Federal Juvenile Justice System
Ordinance 200031. It is the responsibility of the Provincial Government to ensure that the
provisions of the law are complied with by the agencies and concerned officials. The
subject involved in this Petition not only legal, but it has also social and moral concerns.
The provincial government is, therefore, directed to get the matter examined by a
committee comprising experts on the subject and officers of the concern departments for
the purpose of consolidation of the law on the subject as well as to ascertain the areas in
the system where compliance with the law is not being made. The provincial government
is further directed to establish the institutions requires under this law and to provide
facilities required by law within a period of 6 months32.

The sad affairs of the state are that even after the directives of the Hon'ble High
Court of Sindh the JJSO 2000 has the same lacunas and the Government is absolutely
unbothered about fixing these issues. The problem with our legislative system is that the
laws are made with time constraints, the law makers lacks the visions and neither they
consult experts before enacting laws. The laws are inflexible for future, the JJSO 2000
was enacted 18 years ago, the society has drastically changed in these 18 years, we
cannot afford to have laws where there is not flexibility and the law makes had a limited
approach on the issue in hand.

This JJSO 2000 is although a good initiative taken by the Federal Government,
however in order to combat juvenile delinquency the JJSO 2000 seems to be insufficient
in several areas, hence the graph of juvenile delinquency and repeated offence by same
offenders in very common. The basic purpose of laws on the subject is to protect the
children from exploitation, this is only possible through rehabilitation. Sadly the prison
system in Pakistan despite of the facts that it claims to be governed on the principle of
rehabilitation does not provide a single facility of correction. After the period of
confinement when the juvenile is reintroduced in the society he goes back in the same

31
At the time when the Constitutional Petition was finally heard and judgment was passed the JJSO 2000 was
already promulgated
32
Zia Ahmed Awan V/s Government of Sindh 2002 P. Cr. L. J 659
13

environment without any correction and moral development which results in repeating of
delinquent behavior. The unavailability of Probation officers and child protection service
leaves the juvenile alone to combat with his desperateness and needs.

Conclusion:

It is not only desirable but an international requirement that the Juvenile Justice
System Ordinance should be drafted exhaustively in terms of the UN Convention so as
uniform Judicial system covering rehabilitation, reformation and all other aspects of the
problems of juvenile delinquency. This would perhaps achieve uniformity applicable to
the entire country and avoid ambiguity and inconsistency.

The JJSO Rules enacted in the 2000 does however provide a detailed mechanism
of how a juvenile inmate may be treated while he is under detention, the lacuna still
remained unfulfilled regarding the arrangements of an juvenile released from the
correctional institute and reintroduced in the society. The crucial monitoring is required
when the juvenile is exposed in the same environment and society, to make sure that he
does not indulge into the same activities.