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Tuesday, December 1, 2009

Juvenile Delinquency and its Causes

Tuesday, December 1, 2009 - 0 Comments

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 Although most of these statutes were legally superceded by the introduction of the Juvenile Justice System Ordinance in 2000, it is worth looking back at the older laws as many of them are still enforced in the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.

The Juvenile Justice System Ordinance (2000)

Imprisonment, Institutionalisation, Release
The centrality of the court in the juvenile justice process highlights the perception of this institution in Pakistan as the sole arbitrating body, with the result that alternatives: such as counselling and involvement of parents have been ignored. As one journalist put it, ‘Non-custodial measures of sentencing are not known to our judiciary and it is termed a responsibility of the court to punish all those who are involved in a crime, whether accidentally or for the first time’. In accordance with the CRC and other international guidelines, the court should be the last resource for resolution rather than the first, particularly given that most offences committed by children are petty. However, there are still no legal mechanisms or policy framework in place that offer substantial diversionary alternatives. Furthermore, although the establishment of four exclusive juvenile courts in Kohat, Peshawar, Mardan and Swat was promised in a press release of the NWFP, the provincial government are still yet to make these operational.

Implementing the JJSO
Since the JJSO came into force in 2000, there have been a number of positive developments implemented in its name:
The powers to conduct juvenile courts have been conferred to judges across the country.
Separate cells for children have been established in various central jails in order to separate children from adults.
Some of the national NGOs have started providing legal assistance to the children, while other agencies have worked with the NCCWD to build capacity of the relevant authorities.
A Youth Offender Industrial School in Karachi has been established, as well as a Borstal Jail in Bahawalpur.
On 4 December 2002, the Government of Pakistan accorded special remission on Eid-ul-Fitre (a Muslim Festival) for under-trail children, benefiting 412 children and 264 women across the four provinces.
Another initiative seeks to assist Pakistan’s remaining 3087 juvenile prisoners under-trial. The Government is processing an enabling provision whereby the withdrawing of prosecution on a one-time basis would allow thousands of children to get immediate benefit.
NCCWD initiated a process of preparing draft rules for facilitating the Provincial Governments. Draft rules were prepared in a National Consultation among the stakeholders from Federal, Provincial Government and non-governmental organizations on 19th – 20th February 2001 and have subsequently been forwarded to the relevant authorities.
A Ten Year Perspective Plan with Rs. 4.947 million has been developed for the period (2001 – 2011) for implementation of the JJSO 2000. In addition to this, another further allocation of Rs. 0.17 million has been set aside for the identification of needs / problems with regard to implementation of the acts / Ordinances / other instruments concerning social welfare including children.

Poor Awareness and Implementation of the JJSO
“The law is there but the environment needed for its implementation doesn’t exist. It’s the callous attitude of the whole society towards children and the government is not interested in improving their plight.”
Despite the progress mentioned above and the funds set aside in the Ten Years Perspective Plan, only a few of the promises made within the JJSO have been put into action, and violations of children’s basic rights continue to occur in many districts. A fundamental flaw in the JJSO has also been exposed, namely that it is not operationally retroactive, and so children whose cases took place before the Ordinance was passed (pre-2000) are not entitled to any protection under it. It is because of this oversight that there are still some 50 children on death row and numerous instances of minors serving harsh sentences, including whipping in public.
At present, a widespread lack of awareness of the principles and implementation methods of the JJSO appears to be the most serious obstacle to the protection of children in conflict with the law. In its Concluding Observations and Recommendations issued 3 October 2003, the Committee on the Rights of the Child expressed concern at the ‘poor implementation of the [JJSO] and that many of the authorities in charge of its implementation…are unaware of its existence.’ A recent Amnesty International mission to Pakistan also corroborated that at each stage of arrest, trial and imprisonment, there was wide-scale failure to implement the provisions of the JJSO.

Child Rights

Pakistan is a signatory to several international commitments that cover basic human rights, including the United Nations Convention on the Rights of the Child (CRC), which it ratified with a general reservation sating that the provisions will be interpreted in the light of Islamic injunctions. This reservation was later withdrawn in 1947.
The National Commission for Child Welfare and Development (NCCWD) within the Ministry of Women’s Development and Social Welfare has been given the task of coordinating national efforts for implementation of the CRC in collaboration with the Provincial Commissioners for Child Welfare and Development (PCCWD). The Commissioners have been given a huge mandate but they lack adequate manpower and resources to play this role effectively. Despite plans to raise the status of the Commissioners and to give them more resources, necessary action is still pending.
In their Concluding Observations of October 2003, the Committee on the Rights of the Child praised Pakistan for the introduction of the Juvenile Justice System Ordinance in 2000, but specified a number of concerns relevant to juvenile justice and street children, namely:

Concerns relative to street children in general:
The increasing number of street children and the vulnerability of these children to violence, torture, sexual abuse and exploitation and the lack of a systematic and comprehensive strategy to address the situation and protect these children as well as the very poor registration of missing children by the police.
The high number of children living in poverty, the shortage of adequate housing, of clean water and adequate sanitation and sewage, and at the problem of air pollution, all of which have a serious negative impact on the living conditions of children in the State party, causing injuries, sickness and death.
The lack of an adequate data collection mechanism within the State party to allow for the systematic and comprehensive collection of disaggregated quantitative and qualitative data…in relation to all groups of children.
The high prevalence of violence, abuse, including sexual abuse, and neglect of children within the State party, and the lack of effective measures taken to combat this problem. For instance, the existing legal provisions do not protect children sufficiently and the implementation of laws concerning child abuse and neglect is modest.
The existing institutions for children in need of alternative care are inadequate both qualitatively and quantitatively, and record keeping on children in need of these services is poor. Furthermore, the Committee is concerned at the absence of a mechanism to conduct periodic reviewing of placement.

Concerns relative to the Juvenile Justice System

The high number of children in prisons, who are detained in poor conditions, often together with adult offenders and thus vulnerable to abuse and ill-treatment. The very low minimum age of criminal responsibility (7 years) is also of concern to the Committee. Further, the Committee is deeply concerned about the reports of juvenile offenders sentenced to death and executed, which have also occurred after the promulgation of the Juvenile Justice System Ordinance.
The numerous reports of torture, serious ill-treatment and sexual abuse of children by police officers, in detention facilities and other state institutions.
It is now widely recognized that communities need to be involved in the development process as equal partners through community based organizations (CBOs) and non-governmental organizations (NGOs). But the NGO sector is weaker in Pakistan than in other countries of South Asia. Traditionally, local organizations led by community activists or philanthropists have concentrated predominantly on social welfare activities. However, this is beginning to change with some NGOs, particularly urban ones, concentrating on advocacy and lobbying. Other NGOs have fostered and strengthened village organizations in order to implement development activities through them.

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