Pakistani’s abuse of young offenders

In a report dated February 25, 2004, the Bureau of Democracy, Human Rights, and Labor in the U.S. Department of State in Washington stated that children in Pakistan were frequently beaten and even tortured while in detention and that this was usually done to extract confessions, however it was also done also to punish or intimidate child detainees or to extort payment from their families for their release.

Pakistani courts may order that children be sent to reform schools or various types of residential facilities, many designed to provide vocational or other training.

There were two facilities--one in Karachi and one in Bahawalpur--that serve as reform schools for juvenile offenders.

Unfortunately, juvenile offenders and, in some cases, homeless and destitute children, may be sent to residential facilities, for terms not to exceed the amount of time beyond the age of majority. Conditions in these institutions reportedly were poor, similar to those found in jails. Abuse and torture of the children in such institutions was a problem. Educational facilities in these institutions often were inadequate. Extortion on the part of the staff at such institutions reportedly was widespread; parents of inmates often were required to bribe lower level staff members to visit their children or bring them food. Drug trafficking by guards and other staff also was a problem; some children reportedly developed drug habits while in these institutions and were supplied drugs by their guards. The children were constantly abused by fellow detainees.

The Government does however sanction visits to young offenders incarcerated in reformatories, jails and residential facilities by human rights monitors, family members, and lawyers with some restrictions.

Part of the problem stems from the fact that the government, despite its current laws and programs, does not demonstrate a strong commitment to children's rights and welfare.

In July 2000, the government passed the Juvenile Justice System Ordinance. The ordinance abolishes the death penalty for minors under 18 years of age, mandates that the government provide children with legal assistance, prohibits children from being tried for crimes with adults, and prohibits the proceedings of juvenile courts from being published. All of this came about fifteen years after the United Nations General Assembly passed the United Nations Standard Minimum Rules on the Administration of Juvenile Justice.

Most of the laws having to do with protection of children's rights in Pakistan date from well before the development of the United Nations Convention on the Rights of the Child in 1990. Most of those statutes were later superseded by the introduction of the Juvenile Justice System Ordinance in the year 2000.The trouble is that these protections are not being universally implemented throughout Pakistan.

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 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 their sexual partner. In addition, attaining majority at puberty exposes young children to the prospect of hadd.

Quranic (Koranic) punishments, (based on the teachings found in the Quran) 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 had been carried out up to the time of this writing as far as I know.

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. The JJSO contains a number of excellent provisions and rules regarding the appropriate treatment of children in conflict with the law.

A significant problem is that it does not as yet apply to the Federally Administered Tribal Areas (FATA) or the Provincially Administered Tribal 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. President Musharraf had 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.

There are still harrowing reports of torture, serious ill-treatment and sexual abuse of children by police officers in the detention facilities and other state institutions that show little regard for the necessity of detaining juvenile separately from adults. Measures that place the young offenders in the same category as adults are more likely to create a population of repeat offenders because it fails to respond to the root causes of antisocial behavior which can be determined easier if they are treated as they really are; young offenders.

It is a recognized fact of every society that children are treated differently from adults. Though it is true that not every child can be rehabilitated, it is still unwise to abandon any efforts to put them in a class by themselves when dealing with their delinquencies. It is particularly worrying, because in many cases, the Pakistan courts do not distinguish the sentencing parameters between an adult and a child.

The salient features of Juvenile Justice System Ordinance 2000 is as follows;

A child is defined as a person who, at the time of commission of an offence, is below the age of 18 years. The guardian of an arrested juvenile shall be informed as early as possible after the arrest. The concerned probation officer has to be similarly informed.

A child arrested for a non-bailable offence must be produced before juvenile court within 24 hours, while a child arrested for a bailable offence must be released on bail even without surety.

It provides for children to be detained in Borstal institutions (which are defined in the JJSO as places where a child may be ‘detained and given education and training for their mental, moral and psychological development’). It also provides for resources and funding for the construction of these Borstal institutions around the country.

It prohibits any child from being handcuffed or put in fetters while he or she is in custody. It prohibits any child from being forced to suffer corporal punishment or hard labour during custody or detention. It prohibits keeping children in police stations for bailable offences.

It provides the child with free legal representation, the right to appeal a conviction within a 30 day period and free medical treatment.

It prohibits any joint trial of a child with an adult. Unnecessary delay in proceedings are to be avoided by the authorities.

Offences carrying ten years punishment are made bailable for children less than 15 years of age and it is prohibited to publish proceedings. It prohibits any child from being sentenced to the death penalty

Despite the progress mentioned above and the funds set aside in the Ten Year 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 for this reason all 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 long sentences, including whipping in public.

At present, a widespread lack of awareness of the principles and implementation of the various aspects of the JJSO appears to be the most serious obstacle to the protection of children in conflict with the law in Pakistan. Their mental health, educational and social disabilities have often been inadequately assessed or addressed and hence their behavior needs need to be resolved by keeping in mind the immaturity of their age and their restricted capacities.

Arrest is a critical stage for children in conflict with the law, and as under the JJSO, it is the responsibility of the arresting officer to determine whether their suspect is a child or an adult. This is usually done by asking the child or their parents/guardians to declare their age directly, but failing this, it is left to the discretion of the officer to estimate the age of the child from his/her physical appearance, or seek ossification tests (determination of age by bone structures) from a medical officer. The latter is a time consuming process, and it has been suggested that police officers often knowingly register children as adults anyway in the First Information Reports when they believe that they are younger. They do this to void medical tests and having to contact parents/guardians.

Amnesty International has also confirmed cases where judges have accepted the age recorded by police even when the child clearly looks younger, which suggests a worrying lack of commitment throughout the juvenile justice system to the proper investigation of cases. What they don’t seem to understand is that by treating these juvenile as adults, it is creating a never ending breed of hardened criminals that are only a menace to an already crime ridden society.

With such a huge number of the population in Pakistan being children and the majority of them are living below the poverty line and uneducated to boot, it is obvious that these kids would have more than their fair share of run-ins with the law.

Given the high proportion of unregistered births in Pakistan and the fact that street children are unlikely to possess documentation certifying their age, many children face more severe penalties simply by looking older than they are. This can have very serious consequences, with reports suggesting that a significant number of children have been wrongly sentenced to the death penalty in Pakistan as adults. In the Punjab province alone, as many as 350 children were facing execution in 2002, despite the announcement by President Pervez Musharraf in December 2001 ordering their sentences to be commuted or turned into life imprisonment.

Further confusion arises from the poor knowledge and implementation of the JJSO, as police and judicial personnel continue to refer to the older laws described earlier, all of which have different age boundaries for ‘children’. Although the CRC and the JJSO define a child as anyone below the age of 18 years, the Sindh Children’s Act lowers this to 15 years, the Pakistan Penal Code to 12 years, and the Hadood Ordinance to ‘the attainment of puberty’. Therefore, the age parameters under which a child is arrested, recorded and charged appear to depend on the geographic region and the knowledge of the officer involved rather than any uniform understanding of the law.

Children from poor families often report that they are beaten by the police to extract false confessions, especially if they fail to pay a bribe to please the arresting officer. Young children who have never come into contact with law enforcement authorities are not familiar with the environment prevailing in police stations; an adult guardian is not present during questioning and they are reportedly treated like hardened adult criminals by police officers who have not been trained on how to treat children under the edicts of the JJSO.

The vast majority of children who are waiting for their trials are sent away for further detention in a borstal (young offenders correctional facility) or, more commonly, the juvenile sections of adult prison complexes.

Due to the lack of alternative custodial institutions across the region, many children are admitted to Bahawalpur Borstal from far-flung villages, often making it impossible for their families to maintain contact with them because of the distance. This can intensify children’s social and cultural isolation, in addition to feeling homesick and missing their families

The justice system in Pakistan and the justice system in Canada since their inceptions in both countries have the same goal; the reformation of juvenile offenders. The rehabilitation of juveniles is considered to be the primary goal of the juvenile justice systems while that for the adults has been retribution and protection of society. Juvenile courts in Canada tend to consider the background of the offender before passing sentence while the adults are often held accountable for their actions regardless of background. But none of these advantages exists for the most part for the Pakistani juvenile delinquents as there is no system of juvenile law in practice as such in much of Pakistan.

The western society has already gone through the trial and error learning experience with respect to treating young offenders properly for the most part and ‘invented the wheel’ that proves the foolishness of incarcerating juveniles unnecessarily and mistreating those that are incarcerated. It is unfortunate that Pakistan, and most other third world countries for that matter; are not studying the experiences of Westernized nations to form a better justice system and methods of treatment for their juvenile offenders.

Pakistan has to improve its treatment of its citizens and especially its young offenders. If it fails to do this, it will be looked upon by civilized nations as being a backward nation.