Dear friends,
We wish to share with you the following article from Mr. Anees Jillani advocate.
Asian Human Rights Commission
Hong Kong
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An article from Mr. Anees Jillani advocate forwarded by the Asian Human Rights Commission
Article by Anees Jillani, Advocate Supreme Court
The PPC (Pakistan Penal Code 1860) remained the major law governing crime and criminals in relation to children until the introduction of the Juvenile Justice System Ordinance 2000 (JJSO). However, there are still many provisions of the PPC and the Criminal Procedure Code 1898 that continue to apply to the children.
Section 82 of the Pakistan penal Code (PPC), for instance, says that nothing is an offense which is done by a child under seven years of age. This section is often criticized and there is a need to upgrade this age to a reasonable one reflecting our civilized status in the comity of nations. PPC’s section 83 gives judge discretion to ignore the age stated in section 82 and raise it up to 12 years, in the case of a child who has not attained sufficient maturity of understanding to judge the nature and consequences of his or her conduct on that occasion. The two sections can be merged by a simple amendment and the minimum age of criminal responsibility raised to 12 years.
Section 4 of the JJSO authorizes the Provincial Government to establish one or more juvenile courts for any local area within its jurisdiction, in consultation with the Chief Justice of the high court. Ten years have passed, and not a single such court has been established; and instead the High Courts have been conferring status of the juvenile courts on the existing courts. The High Courts cannot be doing this on their own, and must be instructed by the provincial governments to do so. In this era of independent judiciary, the High Courts should standup against the governments on this issue and refuse to confer powers on the already over-burdened courts and instead should insist upon establishing exclusive juvenile courts.
Section 6 of the JJSO prescribes special procedure for the juvenile courts which involves issues like not ordinarily taking up any other case on a day when the case of a child accused is fixed for evidence on such day; attendance of only specified persons in the court; and dispensing with the attendance of the child in the trial. Contravention of this procedure is for all to see in the court rooms all over Pakistan.
The JJSO says that children should not be hand-cuffed, put in fetters or given any corporal punishment at any time while in custody. Children are periodically produced in courts while hand-cuffed and many of the juvenile prisoners are put in fetters. Recently, a child accused of being involved in the assassination of Benazir Bhutto succeeded in getting an order from the Lahore High Court that his fetters, placed for more than two years, should be removed.
The JJSO is silent on the issue of special prisons for children and some of the provincial governments have tried to overcome this lacunae by addressing some of the related issues in the rules which is improper. This gap needs to be bridged and the provinces with existing laws on the subject should modify them to reflect the latest trends while Balochistan and the Khyber Pakhtoonkhwa should introduce them urgently which they have been talking about now for ten years.
Section 10 of the JJSO gives power to the police to release children when they are arrested. This power is seldom exercised. The police fails to contact parents, guardians and the probation officers when a child is arrested and kept in a police station.
The JJSO is a law that every Pakistani can be proud of. However, it is not being implemented in its totality and the judiciary should assume the leadership role for ensuring its implementation if the provincial governments lack the interest to provide direction in this regard. Ignorance is a painless evil but what does one do when the political will to improve the lot of children is missing. Children sweeten our labors but we in Pakistan tend to forget that they make misfortune more bitter.
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