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Tuesday, December 1, 2009
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Most of the laws having to do with protection of children’s rights in
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
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Although the Sindh Children’s Act was legally superceded by the Juvenile Justice System Ordinance (JJSO) in 2000 (see below), it continues to be applied by judges who lack up-to-date awareness of the new laws.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
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
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
The Punjab Youthful Offenders Ordinance was very similar to the Sindh Children’s Act in nature, but introduced to be applied in the
The Juvenile Justice System Ordinance (JJSO) 2000
Following the ratification of the CRC in 1990, the government of
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 centrality of the court in the juvenile justice process highlights the perception of this institution in
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.
Another initiative seeks to assist
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
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
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