Tuesday, December 1, 2009

Juvenile Delinquency and its Causes

Juvenile Justice in Pakistan
Most of the laws having to do with protection of children’s rights in Pakistan date from well before the development of the Convention on the Rights of the Child in 1990. Although most of these statutes were legally superceded by the introduction of the Juvenile Justice System Ordinance in 2000, it is worth looking back at the older laws as many of them are still enforced in the Tribal Areas excluded by the JJSO and in areas where it has not yet been fully implemented. Many of them also put forward different ages of criminal responsibility, leading to children of the same age being subject to considerably different treatment depending on where they live and what gender they are.

The Age of Criminal Responsibility
Pakistan’s Penal Code sets the age of criminal responsibility at twelve, with children between the ages of seven and twelve deemed criminally responsible if they have “attained sufficient maturity of understanding to judge…the nature and consequences” of their “conduct on that occasion.” Children aged seven and older are therefore potentially eligible for the full range of penalties provided for in the Code, including death and life imprisonment.
The Zina Ordinance defines the age of majority as sixteen for females and eighteen for males, or the attainment of puberty for either. Because the promulgation of the Zina Ordinance entailed the abolition of Pakistan’s statutory rape law, girls as young as twelve have been prosecuted for having extra-marital intercourse under circumstances that would previously have mandated statutory rape charges against there assailant (see below).

Juvenile Courts and Law
Prior to July 2000, juvenile laws existed in only two of Pakistan’s provinces. The first of these was Sindh, where a Children’s Act was passed in 1955 and eventually implemented 19 years later when it was made applicable to the Hyderabad and Sukkur divisions in 1974. It was intended to replace the Bombay Children’s Act of 1924, and contained similar provisions, including:
Delegating powers of a juvenile court to a District Magistrate;
Defining a youthful offender as any person below 16 years of age (at the time of commission of the offence);
Providing that not person under 16 could be sentenced to death, transportation or imprisonment;
Giving other courts the power to try a child if a juvenile court did not exists;
Prohibiting the joint trial of adults and children;
Empowering a police officer to release a child arrested on charge of a non-bailable offence provided that releasing the child would not place him/her in any danger or bring him in contact with adult criminals.
Although the Sindh Children’s Act was legally superceded by the Juvenile Justice System Ordinance (JJSO) in 2000 (see below), it continues to be applied by judges who lack up-to-date awareness of the new laws.

The Hadood Laws of 1979

These laws were introduced to Pakistan as part of President Zia-ul-Haq’s move to Islamize national law with an extra layer of concepts and judicial structures. Under this policy, sections of the Pakistan Penal Code (PPC) substituted with Islamic provisions, a parallel Islamic court structure was set up, and a constitutional amendment was introduced stipulating that all laws in Pakistan have to conform to Islamic injunctions.
Most of the Hadood laws relate to the offences of armed robbery, theft, rape, fornication, false accusation of fornication, drinking, and drug-taking, with strict fixed punishments for certain crimes once adequate evidence if obtained. These fixed punishments – known as hadd – include stoning to death for fornication, judicial amputation for theft and armed robbery and flogging for consumption of intoxicants, all of which are of particular concern to street children and street girls in particular.
Over the years, there have been many attempts to repeal the Hadood laws, most prominently by the Commission of Inquire for Women in 1997 and by the Special Committee of the National Commission on the Status of Women (which had been set up to review the Hadood Ordinances in 2002), in August 2003. However, both attempts were unsuccessful. Although the hadd punishments may not actually be imposed on individuals convicted of crimes as children, it is important to note that the definition of a child in Hadood law is simply ‘a person who has not attained puberty’. Thus, a girl of 12 who has attained puberty is legally adult, and could be sentenced to hadd punishment under the Hadood laws. This is a matter for concern, as the JJSO does not legally override the Hadood Laws.

The Zina Ordinance
The most far-reaching of the Hadood Ordinances is that governing zina, which in addition to criminalizing extra-marital sex, establishes separate ages of majority for men and women and dramatically narrows the definition of rape. The promulgation of the Zina Ordinance was followed by a sharp increase in the number of women in prison. While the number of female children in Pakistan’s prison remains low, those accused of zina account for a grossly disproportionate share of the cases. Of the fourteen girls in Punjab prisons who remained under trial at the end of February 1998, according to official statistics, eleven were charged under the Zina Ordinance.
The Zina Ordinance defines the age of majority as sixteen for females and eighteen for males, or the attainment of puberty for either. Because the promulgation of the Zina Ordinance entailed the abolition of Pakistan’s statutory rape law, girls as young as twelve have been prosecuted for having extra-marital intercourse under circumstances that would previously have mandated statutory rape charges against their assailant. In addition, attaining majority at puberty exposes young children to the prospect of hadd (Quranic) punishments, including whipping, amputation, and death by stoning. For minors, the maximum punishment for zina offences is either imprisonment for up to five years, a fine, or both. Children may additionally be sentenced to receive up to thirty lashes of a whip. It should be noted, however, that sentences to hadd punishments must be confirmed by an appellate court, and that no hadd punishments have yet been carried out up to the time of writing.

The Punjab Youthful Offenders Ordinance 1983
The Punjab Youthful Offenders Ordinance was very similar to the Sindh Children’s Act in nature, but introduced to be applied in the Punjab province of Pakistan only. The one notable difference in relation to its Sindh counterpart was that it defined a child as anyone aged 15 or below at the time of commission of the offence. As with the Sindh Act, however, it too was legally superceded by the JJSO of 2000.

The Juvenile Justice System Ordinance (JJSO) 2000
Following the ratification of the CRC in 1990, the government of Pakistan promulgated the “Juvenile Justice System Ordinance – 2000” (JJSO 2000), which provides for the protection of children involved in criminal litigation. It came into force immediately and was a marked step forward in establishing a fairer and more child-friendly justice system in Pakistan. Although the JJSO contains a number of excellent provisions and rules regarding the appropriate treatment of children in conflict with the law (see table and flowchart below), it does not contain any guidance or protection relating to street children in particular. Moreover, a significant problem is that it does not as yet apply to the Federally Administered Tribal Areas (FATA) or the Provincially Administered Trial Areas (PATA). This is in line with Article 247(3) of the Constitution of Pakistan, which states that no act of Parliament shall apply to any FATA until it is directed as such by the President of Pakistan himself. To date, President Musharraf has made no such declaration, which means that children in these two areas do not have the protection of the JJSO, and can still face the death penalty sentence.
Recent reports from these areas have also raised cause for concern. In March 2003, the Society for the Protection of the Rights of the Child (SPARC) stated in their monthly newsletter that:
“…normal courts try juvenile offenders in PATA, while in FATA, where there are no normal courts and the superior courts have no jurisdiction, political agents and assistants act as administrative as well as judicial officers.”
The use of political agents in FATA is particularly worrying, as they do not distinguish when sentencing between an adult and a child.

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