Pakistan's Senate-the upper house of the country's parliament-was scheduled to debate during 1999 the Child Offenders Act, a bill that has been pending before it for the past four years. Although the bill has significant defects, which are described at length below, it marks the parliament's first attempt to adopt a federal juvenile justice law. As noted earlier, both Sindh and Punjab have enacted provincial juvenile justice laws. The Sindh Children Act is officially in force throughout Sindh, but its implementation has until recently been limited to the city of Karachi. The Punjab Youthful Offenders Ordinance is nominally in force in just one district of Punjab, and the provincial government and judiciary are only now taking the first steps toward establishing a province-wide juvenile justice system.
The Sindh Children Act governs children who were under the age of sixteen when the offense in question was committed.104 The act authorizes the provincial government to "establish one or more Juvenile Courts for any local area," but allows any court from the level of a magistrate of the first class up to the provincial high court to exercise the powers of a juvenile court.105 It grants juvenile courts-where they have been established-exclusive jurisdiction over children's cases, except where a sessions court has exclusive jurisdiction over the offense committed.106 Each juvenile court should hold its sessions in a different building or room, or on different days or at different times, from ordinary sessions of court.107 Joint trials of adults and children are prohibited.108
The act includes special protections for children during trial, including in camera proceedings, authorizing the removal of persons from the courtroom when a child is being examined as a witness, and requiring the presence of parents or guardians wherever practicable.109 Other provisions of the act prohibit imposition of the death penalty and abolish the terms "conviction" and "sentence" with respect to children.110 The act limits dispositions to placement in a "certified school orrecognised institution," release on probation, imposition of a fine, or discharge "with due admonition."111 Crucially, it makes no provision for the detention of a child in prison.
Under order from the Sindh High Court,112 the provincial government established a juvenile court in Karachi on December 18, 1993, with Neelofar Shahnawaz as its presiding magistrate.113 Shahnawaz had been appointed a judicial magistrate three months earlier, in September 1993. As such, her jurisdiction is limited to cases punishable by up to three years of imprisonment. Other, more egregious offenses must be tried by a sessions court.114
Shahnawaz hears juvenile cases from all five districts of Karachi. Between twenty-five and forty children appear in her court on an average day, and the number sometimes reaches fifty or sixty. Her caseload is aggravated by a scarcity of support staff. "There are only two clerks and one peon [office assistant]," she said. "Staff don't have access to corruption or money-making in this court, so they transfer or leave."115
Despite its limited resources, the juvenile court under Shahnawaz appears to uphold international and domestic juvenile justice standards more effectively than most criminal courts in Pakistan, by conducting inquiries into the child's background, attempting to ensure the presence of parents at trial, and employing alternative sentencing measures, such as release on probation.
Shahnawaz said she contacts and interviews children's parents herself to learn about their circumstances, and that parents regularly attend trials in the juvenile court.116 Parents were in fact present during a proceeding observed by Human Rights Watch on May 23, 1998, involving two boys who were arrested forthrowing stones at private vehicles, and thereby causing several injuries. Shahnawaz released both children on probation, without requiring the posting of bail bonds. The bond signed by the father of one of the boys stated that he would ensure his son's "good behavior and good conduct to all citizens" for a period of one year, and that in the event of any default by his son during that time, would pay a penalty to the government of Rs. 10,000 ($196). Breach of the bond's conditions would also entitle the court to suspend or revoke the bond itself.
In a subsequent case, however, Shahnawaz ordered two thirteen-year-old girls, Samreen and Shameen, to be detained in Karachi's Women's Jail, pending their trial on theft charges. Bail was granted in the amount of Rs 40,000 ($784) and Rs. 20,000 ($392), respectively, which neither girl-both of whom were employed as domestics-was able to provide. The detention orders were challenged by Zia Awan, president of the Karachi-based NGO Lawyers for Human Rights and Legal Aid, and led to a landmark ruling by a division bench of the Sindh High Court on July 14, 1999. The court declared the detention of children in adult prisons, whether pending trial or upon conviction, to be violative of the Sindh Children Act, and ordered the Secretaries of the provincial Home and Law Departments to delete provisions in the Pakistan Prison Rules that allowed children to be detained in adult prisons in Sindh. In the absence of a detention center for female juveniles, the court ordered the release of Samreen and Shameen upon the provision of Rs. 20,000 ($392) through their guardians or next of kin.117
The court's ruling closely followed the designation of juvenile courts for each of Sindh's twenty-two districts by the provincial Home Department. According to Deputy Home Secretary Kamran Dost, the Home Department issued a notification order designating a judicial magistrate and a sessions court judge in each district to hear juvenile cases triable under their respective jurisdictions. An exception was made for the city of Karachi, which consists of three districts; juvenile cases in all three districts will continue to be tried by one judicial magistrate as well as a newly-designated sessions court judge for juveniles. Special training in juvenile justice, however, is not being provided to any of the magistrates or sessions court judges.118
Dost said that while the Home Department had no plans to build additional juvenile institutions, it had instructed the provincial Inspector-General of Prisons to establish separate juvenile wards in each district jail-a development that wouldprevent the commingling of adults and children in prisons in the interior of the province.119
The Punjab Youthful Offenders Ordinance mirrors the juvenile justice provisions of the Sindh Children Act, with two noteworthy exceptions. First, the ordinance only covers children who were under fifteen years of age when the offense in question was committed, while the Sindh Children Act applies to those who were below the age of sixteen. Second, the ordinance requires police officers to release children on bail when they are arrested in connection with a non-bailable offence and cannot promptly be brought before a court. Under the same circumstances, the Sindh Children Act merely grants police discretion to release children on bail.120
Although promulgated in 1983, the ordinance remained inoperative until 1994, when the provincial government enforced it in the district of Sahiwal as part of an experiment in juvenile justice administration.121 The experiment remained unrealized, however, as the government failed to allocate the resources necessary for the law's enforcement. At the time of Human Rights Watch's visit to Pakistan, in May 1998, Sahiwal had neither a juvenile court nor a functioning industrial school for juveniles. A senior government official told Human Rights Watch that a facility had been built for the latter purpose, but remained without a staff and basic amenities such as a kitchen and a meeting area for visitors.122 Recent measures adopted by the government of Punjab and the provincial high court may provide the groundwork for the law's enforcement throughout the province, but their implementation so far has been half-hearted.
The Lahore High Court on November 11, 1998 designated all sessions court judges in the province as juvenile courts. As of early March 1999, however, no juvenile cases had been transferred to the sessions courts-apparently due to the government's failure to communicate the order to police station house officers and magistrates. The provincial Home Department subsequently issued directions for all station house officers to prepare separate police reports for children and submit them to the sessions courts in their respective districts. At the time of this writing,however, the Inspector-General of Police had yet to implement the Home Department's directive. In addition, the Law Department had failed to order the transfer of juvenile cases from magistrates to sessions court judges.123
Equally critical is the government's failure, as in Sindh, to provide special training for sessions court judges in juvenile justice administration.124 In view of the sentencing patterns noted in the previous chapter, there remains a strong likelihood that individual sessions court judges will continue to impose harsh, retributive sentences.
A parallel development is the provincial government's decision in 1998 to establish four Youthful Offenders Industrial Schools, beginning with the long dormant facility at Sahiwal, and with new institutions at Rawalpindi, Bahawalpur, and Faisalabad to follow. The schools are to be administered by the provincial reclamation and probation department, an arrangement that would remove juveniles from the authority of the prisons department. A senior government official told Human Rights Watch that the Sahiwal industrial school had been due to open in July 1999, but that as of May 1999, the provincial home and finance departments had not allocated the funds necessary to complete its infrastructure. In its present state, he said, the facility had been declared unfit for operation by the sessions court judge for Sahiwal. The facility intended for juveniles at Faisalabad, meanwhile, has been converted to a maximum-security adult prison, according to the same official.125
The Child Offenders Act (Bill), 1995
Attempts to introduce a uniform juvenile justice law, in force throughout Pakistan, only began in earnest in 1994. Several factors provided the impetus. In April 1994, the U.N. Committee on the Rights of the Child considered Pakistan's first periodic report on its compliance with the Convention on the Rights of the Child. The committee noted in its concluding observations that it was "very much concerned about the system of administration of juvenile justice and its non-compatibility with the provisions of the Convention...and other relevant United Nations standards in this field."126 The committee requested a progress report tobe submitted before the end of 1996,127 while a second periodic report was due on December 11, 1997. As of this writing, neither had been submitted.128
Also in 1994, the AGHS Legal Aid Cell submitted to Pakistan's Senate a draft federal juvenile justice bill that sought to harmonize the existing juvenile laws of Sindh and Punjab with United Nations standards. Benazir Bhutto, who was then prime minister, had also voiced a strong interest in the drafting and passage of a federal juvenile justice law.129 The Senate, however, was disinclined to endorse the AGHS draft as submitted. A senior government official who was involved with the bill described the ensuing series of events:
The chairman of the Senate, in a negligent way, sent the [AGHS] bill to a Senate sub-committee. The sub-committee asked the Interior Ministry whether the bill was acceptable. The Interior Ministry [in turn] delegated it to the Bureau of Police Research and Development, which totally changed the bill and made it fallacious.130
What emerged from these deliberations was a bill known as the Child Offenders Act, 1995. However, the bill lay dormant after its approval by the Senate sub-committee, and only recently emerged as an item scheduled for discussion by the full Senate. Human Rights Watch wrote to the Chairman of Pakistan's Senate, Senator Wasim Sajjad, on March 3, 1999, welcoming the placement of the bill on the Senate's agenda, but calling for its redrafting in accordance with the juvenile justice provisions of the Convention on the Rights of the Child and other applicable international standards.
Human Rights Watch also submitted a commentary on the bill to Senator Sajjad as well as the chairpersons of the relevant Senate committees and government officials charged with promoting law reform and child welfare. We received responses from Senator Chaudhry Muhammad Anwar Bhinder, Chairman of the Senate Standing Committee on Law, Justice and Parliamentary Affairs, and Shahid Masood, Joint Secretary of the National Commission for Child Welfare andDevelopment (NCCWD).131 Both Senator Bhinder and Joint Secretary Masood expressed appreciation for our comments, and indicated that they would draw upon them in suggesting revisions to the bill.132 Human Rights Watch's commentary on the bill follows below, while our recommendations for its revision appear in Chapter I of this report.
Although deficient in certain critical areas, the bill incorporates several provisions that add to the protections afforded children under domestic law. These provisions include:
C Requiring provincial governments to establish one or more juvenile courts for each local area, with exclusive jurisdiction over cases involving children.
C Granting children a right to counsel at government expense, and providing that court-appointed counsel have "at least three years of standing in the profession."
C Requiring the release of children on bail if their trial does not begin within three months of their arrest or does not conclude within a period of one year.
C Prohibiting the imposition of the death sentence, amputation, or whipping on children, or assignment to hard labor while in a "borstal or other such institution."
C Prohibiting the imposition of handcuffs, fetters, or corporal punishment on children "at any time while in custody."
C Prohibiting the arrest of children below the age of twelve under laws relating to preventive detention or vagrancy.
In other respects, the bill echoes the Sindh Children Act and the Punjab Youthful Offenders Ordinance. It requires juvenile courts to sit in different places, and on different days and times, from ordinary criminal courts. It specifies the persons who may be present during a juvenile trial, and prohibits publication of the proceedings of a trial without the juvenile court's authorization. Immediately upon the arrest of a child, police must notify his or her guardian as well as a probation officer, who is to prepare "a report on the child's character, education, social, and economic background."
There are, however, several critical areas in which revision of the bill is necessary in order to ensure consistency with international standards.
Section 2(b) of the bill defines a child as a person who "at the time of the commission of an offence" had "not attained the age of sixteen years." Although the bill is consistent in this respect with the Sindh Children Act, it does not comport with the trend suggested by international standards. The U.N. Rules for the Protection of Juveniles Deprived of their Liberty states, at rule 11(a), that a "juvenile is every person under the age of 18." Article 1 of the Convention on the Rights of the Child, to which Pakistan is a party, defines a child as a person below the age of eighteen years, unless majority is attained earlier under national legislation." Article 37(a) of the convention also prohibits the imposition of capital punishment, or life imprisonment without possibility of release, for offenses committed by persons below eighteen years of age. The bill, in violation of the convention, only bars the execution of children who were under sixteen when they committed a capital offense and includes no provision preventing the imposition of life terms without possibility of parole. To ensure consistency with the convention and other applicable international standards, the bill's protections should be extended to all persons who were below the age of eighteen when the offense in question was committed.
Section 9(3) requires the release on bail, "with or without surety," of children charged with committing bailable offenses. The court may deny a child bail only if it believes that release would expose a child to danger. In such cases, the bill requires the child's placement in the custody of a parent or guardian, if present, or otherwise with a probation officer or other "fit person." Section 9(3) states that a child denied bail out of concern for his or her safety "shall not under any circumstances be kept in a police station or jail."
There are three major drawbacks to this provision:
First, section 9(3) fails to specify where and under what conditions children may be held prior to their appearance before a magistrate. As drafted, it would permit children to be held for up to twenty-four hours in police lockups, where segregation from adults is rare and custodial torture routine. The Sindh Children Act provides for the detention of children in "places of safety" such as remand homes or any other "suitable place or institution" that is willing to temporarily house them. Article 37(b) of the Convention on the Rights of the Child states that the detention of a child "shall be a measure of last resort." For cases in which it is not possible to leave children in the custody of their parents or guardians, the bill should require arrangements to house children in an appropriate setting, pending their appearance before a magistrate.
Second, the provision bars remand to police stations or jails only of those children who have been denied bail with a view to ensuring their personal safety. The proscription against remand to police stations and jails should accordingly be extended to children who have been granted bail, but for whom surety is not immediately available.
Third, the bill should direct courts to take into account the social and economic circumstances of the child in setting bail. This would be consistent with section 498 of the Criminal Procedure Code, which states that bail bonds "shall be fixed with due regard for the circumstances of the case, and shall not be excessive." In addition, Article 40(4) of the Convention on the Rights of the Child states that children are to be "dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence."
Finally, section 9(3) should be redrafted to avoid an apparent contradiction in its language. The provision requires courts to release on bail children accused of bailable offenses, if they have not already been released under section 497 of the Criminal Procedure Code. However, section 497 of the Code governs the release of persons charged with non-bailable, rather than bailable, offenses.133
The U.N. Standard Minimum Rules for the Administration of Juvenile Justice provides, in section 19.1, that "the placement of a juvenile in an institution shall always be a disposition of last resort and for the minimum necessary period." A similar provision appears in article 37(b) of the Convention on the Rights of the Child. Article 40(4) of the convention requires states to offer a variety ofalternatives to institutional care, including "guidance and supervision orders; counseling; probation; foster care; [and] education and vocational training programmes."
The bill, in section 10, presents just two options for the disposal of juvenile cases. One is probational release to the custody of a guardian or other "fit person" who can provide a bond to ensure the child's good conduct. The other is commitment to a borstal institution. Human Rights Watch favors the least possible use of institutional placement. However, in those cases where children are committed to the care of an institution, proper rules for its establishment and governance should be in place. The bill, as drafted, does not provide for the establishment of borstal institutions, nor does any existing federal law.134 Of Pakistan's four provinces, only Sindh and Punjab have passed Borstal Acts. And unlike the Sindh Children Act and the Punjab Youthful Offenders Ordinance, the bill makes no provision for the placement of children in industrial training schools established or certified by the state.
The bill also fails to include guidelines for the disposal of juvenile cases. The Convention on the Rights of the Child imposes several guidelines for disposition. Article 3 states that in "all actions concerning children," including those taken by courts of law and administrative authorities, "the best interests of the child shall be a primary consideration." Article 40(1) requires children accused of committing a penal offense to be treated in a manner that takes into account "the child's age and the desirability of promoting the child's reintegration and the child's assuming a productive role in society." And Article 40(4), as noted above, states that children are to be "dealt with in a manner appropriate to their well-being and proportionate to their circumstances and the offence."
In addition, the U.N. Standard Minimum Rules for the Administration of Juvenile Justice require the completion of a social inquiry report prior to the disposition of all cases other than those involving minor offenses.135 The Sindh and Punjab juvenile laws include a nonexhaustive list of factors that the court must takeinto account when passing orders, including the character, age and circumstances of the child, as well as the report of the probation officer.136
The U.N. Standard Minimum Rules for the Administration of Juvenile Justice, section 22.1, calls for the utilization of "professional education, in-service training, refresher courses, and other appropriate modes of instruction...to establish and maintain the necessary professional competence of all personnel dealing with juvenile cases." The bill, by contrast, makes no provision for the training of personnel handling juvenile cases. Such education may be provided by the relevant training institutes already established by law, as well as by non-governmental and intergovernmental organizations.
Conflicts With Provincial Laws
In two areas, the bill substantially weakens protections afforded children by the Sindh Children Act and the Punjab Youthful Offenders Ordinance. These protections comport with international standards, and should form the basis for provisions in a federal juvenile justice law. In its present form, however, the bill:
C Requires the joint trial of an adult and child, in an ordinary criminal court, when a child is charged in a case along with "an adult who is the principle accused therein."137 The Sindh Children Act and the Punjab Youthful Offenders Ordinance prohibit the joint trial of children and adults in any area where a juvenile court exists.138 Their provisions in this regard are consistent with article 40(3) of the Convention on the Rights of the Child, which obligates states to promote the establishment of "procedures, authorities, and institutions specifically applicable to children."
C Requires the transfer from a borstal to a prison of children who have attained the age of sixteen years, to serve the balance of their sentences.139 Neither of the provincial juvenile laws authorize the detention of children in prisons, while Rule 300 of the Pakistan Prison Rules only requires the transfer of children who have attained the age of twenty-one years. Inaddition, the Convention on the Rights of the Child contains provisions that favor keeping children in the least restrictive environment possible and minimizing the possibility of their contact with adults. Article 37(b) states that the imprisonment of a child shall only be used as a matter of last resort, while Article 37(c) requires the separation of children and adults except where it is in the best interests of the child.
Although section 13 of the bill states that its provisions shall "be in addition to and not in derogation of any other law for the time being in force," courts may resolve any conflict between the bill's provisions and those of the Sindh and Punjab laws in light of Article 143 of the constitution. Under Article 143, "[i]f any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of [Parliament]...then the Act of [Parliament]...shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void." To ensure that the rights of accused children under the provincial laws are upheld, and to afford children elsewhere in Pakistan the same protections, it would be necessary at a minimum to modify the aforementioned provisions so as to bring them into conformity with the Sindh Children Act and the Punjab Youthful Offenders Ordinance.
Recommendations of the Pakistan Law Commission
The Pakistan Law Commission, whose observations and recommendations on the criminal justice system and prisons have been cited elsewhere in this report, convened on December 19, 1998 and March 14, 1999, to address the issue of juvenile justice.140 At its March meeting, the commission adopted a series of recommendations that were then submitted to the federal government in a June 1999 report.141 The recommendations include:
C designating juvenile courts in all provinces, with exclusive jurisdiction over children under the age of sixteen.
C establishing separate juvenile institutions, with facilities for health care, education, and training.
C detaining children only as a measure of last resort and for the shortest possible period of time.
C minimizing custodial sentences, and employing alternative disposition measures such as assignment to community service or placement under the care, supervision, or guardianship of a family member or probation officer.
C organizing and developing the probation system so that children in detention may be entrusted to the care and protection of probation officers, under the court's supervision.
C providing training for staff and personnel responsible for managing the juvenile justice system, including police, judges, probation officers, prison staff, court personnel and lawyers, "so that they are sensitised to and educated about the manners and methods of handling children."142
These recommendations provide the basis for a comprehensive and holistic approach to juvenile justice administration that is consistent with international standards. They should be reflected in an amended or redrafted federal juvenile justice bill.
104 Sindh Children Act, Sec. 5.
110 Ibid., Sec. 64, 68(1), 69.
112 "Legal Constraints," address by Zia Awan, President, Lawyers for Human Rights and Legal Aid (LHRLA), during the Independent Communications Network (ICN) Seminar on Juvenile Delinquency, Karachi, October 22, 1994, reprinted in News International, October 29, 1994, p. 11. The designation of a juvenile court followed sustained appeals by concerned NGOs and private citizens, including the filing of a petition in the Sindh High Court by LHRLA in March 1993. The petition called, among other things, for the establishment of juvenile courts for each district of Karachi and other parts of Sindh. Constitutional Petition No. D-743 of 1993, High Court of Sindh at Karachi, March 14, 1993.
113 Notification No. PRS/9-69/91, Home Department, Government of Sindh, December 18, 1988.
114 Human Rights Watch interview with Neelofar Shahnawaz, Judicial Magistrate, Juvenile Court (Karachi Division), Karachi, May 23, 1998.
117 Zabe Azkar Hussain, "SHC rules children cannot be held in adult prisons," News International, July 19, 1999.
118 Human Rights Watch telephone interview with Kamran Dost, Deputy Secretary (General), Home Department, Government of Sindh, Karachi, September 21, 1999.
120 Punjab Youthful Offenders Ordinance, Sec. 41, Sindh Children Act, Sec. 64.
121 Letter to members of parliament, from Hina Jilani, Director, AGHS Child Rights Cell, December 5, 1998.
122 Human Rights Watch telephone interview with a senior government official, Pakistan, March 1999.
123 Human Rights Watch telephone interview with a senior government official, Pakistan, May 1999.
126 Committee on the Rights of the Child, Sixth Session, Consideration of Reports Submitted by States Parties, Concluding Observations: Pakistan, U.N. Doc. C/15/Add.18, 25 April 1994, para. 20. The committee called particular attention to "the punishment of flogging and the death penalty and life imprisonment for children below the age of 18." Ibid., para. 12.
128 United Nations High Commissioner for Human Rights, State Parties Reporting Status Entry Form, Convention on the Rights of the Child, Pakistan's reporting rounds: 1 and 2, http://www.unhchr.ch/tbs/doc.nsf.
129 Human Rights Watch interview with Faqir Hussain, Joint Secretary, Pakistan Law Commission, Government of Pakistan, Islamabad, May 14, 1998.
130 Human Rights Watch interview with a senior government official, Pakistan, May 1998.
131 The NCCWD is a branch of the Ministry of Women Development, Social Welfare and Special Education. Its tasks include drafting Pakistan's reports to the Committee on the Rights of the Child, although the reports themselves must be approved by the Foreign Ministry prior to their release.
132 Letters to Human Rights Watch from Senator Chaudhry Muhammad Anwar Bhinder, Chairman, Standing Committee on Law, Justice and Parliamentary Affairs, Senate of Pakistan, May 12, 1999, and Shahid Masood, Joint Secretary, National Commission for Child Welfare and Development (NCCWD), April 23, 1999.
133 Another commentary on the bill suggests that the reference to "bailable" offenses in section 9(3) was erroneous. See Khan, Laws Relating to Children, p. 219.
134 The Reformatory Schools Act, 1897, provides for the establishment of reform schools. As noted in Chapter V of this report, however, reform schools differ in fundamental respects from borstal institutions. The Pakistan Prison Rules include several provisions governing the administration of borstals, but provides no authority for their establishment.
135 Social inquiry reports must reflect a proper investigation of the "background and circumstances in which the juvenile is living or the conditions under which the offense has been committed." U.N. Standard Minimum Rules for the Administration of Juvenile Justice, Sec. 16.1.
136 Punjab Youthful Offenders Ordinance, Sec. 18(c), Sindh Children Act, Sec. 21(c).
137 Child Offenders Act (Bill), 1995, Sec. 4(3).
138 Punjab Youthful Offenders Ordinance, Sec. 7, Sindh Children Act, Sec. 10.
139 Child Offenders Act (Bill), 1995, Sec. 10(b).
140 Pakistan Law Commission, "Reforming the Juvenile Justice System," Government of Pakistan, Islamabad, 1999, p. 5
141 Human Rights Watch telephone interview with Dr. Faqir Hussain, Joint-Secretary, Pakistan Law Commission, Government of Pakistan, Islamabad, September 21, 1999.
142 Pakistan Law Commission, "Reforming the Juvenile Justice System," pp. 3-5.