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January 16, 2019

Juvenile injustice


January 16, 2019

In his teenage years, Muhammad Azam committed an offence for which he had to pay a heavy price. In 1999, he was sentenced to death by an anti-terrorism court. What’s distressing is that Azam was only 17 years old when he committed the offence and the jail records are an ever-present testament to this fact. To date, Azam and his family are suffering in silence because of our crumbling criminal justice system that requires a thorough review.

As a signatory to the Convention on the Rights of the Child, Pakistan promulgated the Juvenile Justice System Ordinance for the first time in 2000. Since the law did not provide for retrospective effect, the then president, in exercise of his powers under Article 45 of the constitution, issued Notification No 8/41/2001 to grant a special remission to all juveniles sentenced to death by the high courts before December 17, 2001. Under this notification, their death sentences were commuted to life imprisonment.

But this remission wasn’t granted to Azam and several others like him on the grounds that no such claims of juvenility were made during their trials. It is worth mentioning that the Juvenile Justice System Ordinance, 2000 provides a limited procedure for age determination. According to Section 7 of the ordinance, juvenile courts are expected to conduct an inquiry that includes a medical examination to settle the dispute over the age of a juvenile offender at the time of arrest.

Many years later, parliament promulgated the Juvenile Justice System Act, 2018 under which age will now be determined by the officer-in-charge of the police station or an investigation officer on the basis of birth certificates and educational certificates. In the absence of these documents, a juvenile offender’s age will be determined on the basis of a medical examination when the accused “physically appears or claims to be a juvenile”.

But this provision seems somewhat perplexing. Does it imply that age can only be determined after it is claimed by the offender or he/she “physically appears” to be juvenile? Rule 289 of the Pakistan Prison Rules 1978 stipulates that before passing any order pertaining to the detention of a juvenile offender, a magistrate or sessions judge must inquire about the age of the offender after taking into account appropriate evidence.

It is unfortunate is that it took us 18 years to enact a new law for juvenile offenders, which complies with international obligations as well as domestic court verdicts. Now that a new law has been enacted, we must ask whether we have learned anything from our past mistakes.

Shifting the power to conduct an inquiry from juvenile courts to police officers means that the concerned police officer will determine the age of juvenile offenders. If the police officer’s age determination is questioned either by the accused, it will be determined once again by the trial court. Does Rule 289 of the 1978 jail manual seem redundant in light of the new act?

Another important issue is the decision concerning the stage at which a juvenile offender’s age must be determined. In its judgment in the case of ‘Sultan Ahmed vs Additional Sessions Judge etc’, the Supreme Court observed that a claim of juvenility must be made at the earliest opportunity and preferably during the course of the investigation.

Ironically, the legislature failed to address this issue while enacting the 2018 act. Our lawmakers didn’t take into account various cases, including that of Ansar Iqbal, a juvenile who was executed because the police and the honourable courts completely ignored the question of age determination at the time of arrest as well as during the commencement of the trial. When the issue was taken up by the National Commission for Human Rights on the pleas of Muhammad Azam and Muhammad Iqbal, the commission’s efforts resulted in the execution of both juvenile offenders being halted. However, this isn’t the solution.

The spirit of the 2018 act ignores the fact that the basic purpose of age-determination protocols is to confirm the age of an offender at the time of his/her arrest so as to determine if he/she can benefit from juvenile law. This is backed by Rule 289 of the 1978 jail manual. Lack of due diligence in determining the age of the accused provides room for legal complications in the later stages of the trial, particularly with regard to deciding whether the Juvenile Justice System Act, 2018 can be applied in the case and if the accused should be tried in a juvenile court. These complexities could jeopardise the due process of the law.

Due to the absence of documentary proof and a centralised database, it is a common practice that while registering an FIR, the police arbitrarily record the age of young offenders. This shows that the police tend to hastily and incorrectly record the age of an offender at the first instance and usually claim that a juvenile is an adult.

In other cases, offenders claimed juvenility at the tail end of their case. In order to prevent any form of misuse, the government should adopt robust mechanisms for age determination that are internationally recognised. These include the latest dental X-rays that ought to be made a mandatory component of medical reports at the time of arrest and the point when a juvenile offender is taken to jail to avoid any controversies.

It is also the duty of superior courts to lay down suitable principles to tackle the controversies arising from different interpretations given by different courts. In the case of conflicting or inconclusive evidence, the benefit of the doubt should be given to young offenders.

As a signatory to various international conventions, especially the Convention on the Rights of the Child (CRC), Pakistan has consistently failed to fulfil its obligation to effectively investigate claims of juvenility. In 2016, the Committee on CRC categorically recommended that effective age-determination mechanisms should be developed to ensure that a child undergoes a proper investigation to establish his/her age in the absence of any proof and is given the benefit of the doubt when there is conflicting or inconclusive evidence .

Procedures for effective age determination are the need of the hour. This is the least we owe to Azam and several other juvenile offenders who are awaiting justice.

The writer is a lawyer who works as a consultant at the National Commission for Human Rights. Twitter: @razii.asad