Bang, bang, bang, bang

Bang, bang, hang, hang

In our judicial system there is no uniformity of age under which a child cannot be awarded punishment. Young children are being chastised in the name of law and awarded punishments, which those with a strong backing can easily evade

Asma Jahangir

The end of 2004 has seen some renewed vigour in the judiciary of Pakistan . After eight years of partial slumber the judicial machinery stirred itself to grant bail to Mr. Asif Ali Zardari. On another note they were quite shrill in expressing their distaste for lavish meals served at wedding parties and called for total austerity. The ban is a relief for hundreds of people who can ill-afford the luxury of splashing "shoras" at their children's weddings. The dispute, however, before the Supreme Court, was not about serving lavish meals. The choice before them was to either allow one dish to be served or to limit it to soft drinks or soups. That too sufficiently irked the Supreme Court to seal the fate of gluttons in the name of Islam. And so, eating or serving food at weddings has been added to the long list of sins by declaring it un-Islamic. This reformist role of the judiciary remains controversial and selective. A recent judgment of the Full Bench of the Lahore High Court has out rightly rejected these reformist tendencies. While striking down the Juvenile Justice System Ordinance the Court mocked at legal reforms that may be disregarded or flaunted with impunity. It attempted to reason that "one quantum leap" or "one stroke of pen" cannot be expected to alter the peculiar socio-legal culture of Pakistan . Hence the message is to sit and wait rather than use any legal tool to improve the situation.

The Juvenile Judgment (as it is popularly known) has struck down the entire Ordinance on Juvenile Justice System on the basis that it did not appear to be the finest example of legislative draftsmanship and was inconsistent with the provisions of the Constitution guaranteeing the right to life and equal treatment before the law. Another ground for declaring it unconstitutional was the unrepresentative nature of the Ordinance. It was, according to the judgment, promulgated in the absence of any public debate or parliamentary discussion.

The Juvenile Justice System Ordinance 2000, consolidated all previous laws related to children involved in the criminal legal system - either as accused or as victims. It extended internationally recognised criteria of rights to children under the ages of eighteen. In a long-winded judgment the honourable court concluded that separate trials, concessions of bail during trial and the imposition of death penalty for children was violative of the Constitution of Pakistan. They vehemently disputed that a child in Pakistan can be defined as a person under the age of eighteen, especially in connection with the imposition of capital punishment. In their opinion a child in Pakistan gained wisdom earlier than those in the developed world. The reasoning adopted by the honourable Court is worthy of being reproduced. It says:

"The stages and standards pertaining to attaining of maturity by young persons in different parts of the world are different and the stages and standards in that regard acceptable in one part of the world may not be strictly relevant to other parts of the world. Such attainment of maturity of understanding is dependent upon social, economic, climatic and dietary factors and we have every reason to understand that a child in our part of the world starts understanding the nature and consequences of his conduct sooner than a child in the West. Growing up in close proximity and interaction with adults due to social and economic conditions, doing odd jobs and getting employed at a relatively young age due to general poverty, hot climate and exotic and spicy food all contribute towards a speedy physical growth and an accelerated maturity of understanding of a child in our society."

To take this line of reasoning to its logical end would lead us to conclude that an unfortunate child who is deprived of social, economic and political rights deserves the death penalty, while those who have the advantage of education, eating McDonalds and enjoying fine weather are less brutalised and therefore more innocent in the eyes of the law. In addition the Court is misled into believing that physical maturity has a nexus to mental development. A mistake propounded by the provisions of the Hadood Ordinances.

The Juvenile Judgment vehemently predicts that the trend towards abolition of capital punishment in the Western world would prove to be a passing phase. This appears to be wishful thinking and simply not based on any facts. The trend remains towards abolition of death penalty throughout the world. Eighty countries have abolished death penalty for all crimes by law, twenty-three have abolished it in practice and fifteen have abolished capital punishment for all ordinary crimes. In comparison there remain 78 retenionist countries around the world at the present moment. As far as death penalty of children is concerned there is virtual consensus that a child below the age of eighteen cannot be executed. Since 1990 to 2003, eight countries executed 38 children. Pakistan , China , Democratic Republic of Congo, Iran , Nigeria , Saudi Arabia , United States and Yemen remain the only violators in this regard. It is true that International law is not binding on Member States of the United Nations but once a country ratifies a Convention it is morally bound to respect it. Pakistan was one of the six initiators to the convention on the Rights of the Child and has ratified it. The Convention specifically prohibits capital punishment for children under the age of eighteen.

Throughout the Juvenile Judgment the Court has expressed its unease with defining a child as a person below the age of eighteen for the purposes of criminal liability. This disapproval appears to have been reached on the premise that research in this matter was lacking and arbitrary. The Court ruled that the law giver had no basis on which to fix eighteen years as the age limit in the Ordinance. It simply glosses over the fact that this cut-off date was gradually raised through sustained dialogue amongst the International community. In Pakistan too the age was gradually raised. For example in Punjab it was previously fifteen years in a similar law. The pivotal law point, however, remains whether the courts or the law making authority have the right to determine the age factor. Courts may strike down a law if it discriminates but not because the judges disagree with it or because there was lack of research on the issue. The judiciary has even less capacity than the legislature to undertake research and generate debate on crucial social issues.

There may be a few contradictions in the Juvenile Ordinance but the contradictions in the Juvenile Judgment surpass these. After having sermoned on the undemocratic law making process of the Juvenile Ordinance, the honorable judges lament that it also contradicts the age factor prescribed in the Hadood Ordinances. Surely they had not failed to recall that the Hadood Ordinances were not only promulgated by a dictator but also remain highly controversial. The Hadood laws usurp rights rather than advance them. . The much favoured Hadood Ordinances measure adulthood on the basis of puberty for the purposes of determining criminal liability. Thus a female child ordinarily would reach legal adulthood earlier than a male child. A mentally challenged pubert is presumed to have the same level of understanding of criminal liability as an adult. Yet in the eyes of the Juvenile judgment these laws seemed more rational than the Juvenile Justice Ordinance.
In conclusion the Court simply observed that the protection afforded to children under the previous laws were sufficient. This is totally misleading on many counts. The Pakistan Penal Code or The Criminal Procedure Code does not extend to the tribal areas of the NWFP or Balochistan. Each Province has its own legislation extending varying degrees of rights to children. More importantly there is no uniformity of age under which a child cannot be awarded capital punishment. Every province has a different age limit for the imposition of capital punishment regrettably the Court also based their judgment on flawed arguments regarding the deterrent nature of the capital punishment and on the concepts of the right of the victim. Scientific studies have consistently failed to find convincing evidence that the death penalty deters crime more effectively than other punishments. A study updated by the United Nations in 1996 concluded that empirical research gives no positive support to the deterrence hypothesis. The victim and society has a right to ensure that the perpetrators of a crime are brought to justice but it is not their right to insist on death penalty of a child. The key issue is to ensure that no one has impunity. In Pakistan a hardened adult murderer can even escape conviction if the victim or his/her heirs forgive the offender. Throughout the Juvenile Judgment the honourable judges have complained that the Juvenile Ordinance has created havoc in the administration of criminal justice system. Hanging a few children, while those with muscle can get away by paying a few hundred bucks can hardly save an already decaying system. Logic would dictate that in a malfunctioning legal system at least children be spared the death penalty which is irreversible.

During the course of reasoning the honourable Lahore High Court has also noted that the Juvenile Ordinance is virtually meaningless in protecting children from the severity of sentence. In their observation courts invariably give a lenient sentence to child offenders. Special laws protecting the rights of vulnerable people are not about charitable discretion of the judiciary but about rights that the State must guarantee to its child citizens. In Pakistan children as young as twelve have been awarded capital punishment. One young man, Sher Ali, was executed in November 2001 for a murder committed when he was 13 years old. At this present moment 9-year-old Nadeem is undergoing a sentence of 273 years of imprisonment in Faisalabad jail. And these are only a few examples.
On the one hand the Juvenile Judgment argues that lesser sentencing would encourage adults in exploiting children in committing crimes therefore the Ordinance was impractical but on the other hand it claims that courts do in fact take a lenient view towards the sentencing of children. Thus the temptation of criminal minded adults to use children in crimes is not linked to the Juvenile Ordinance but to a faulty investigation system, which is unable to identify the authors of a crime.

There is yet another fallacy that seems to have guided our honourable judges in getting alarmed by the effects of the Ordinance. The panic was high enough for the court to rule that the "evil" should be nipped in the "bud". According to the figures they quote from a local newspaper the crime rate of murder committed by children is reported to have risen. These figures do not, at least, correspond with those available with the Prison Department of the Punjab . None of these figures are officially authenticated and therefore it was even more important for the Court to secure official records before basing their findings on disputed figures. According to the figures available with the Punjab Prison, 596 children were accused of murder in 2003 as against 1098 in 2002. Again the figures of the Punjab Prison department show that children account for around 5% of the prison population accused of murder. If that is indeed the case then the panic and alarm raised by the honourable court about the rising crimes alluded to children was not only misplaced but also unjustified.

According to the Juvenile Judgment the Ordinance has promoted corruption in society. They rightly point out that alleged child offenders manage to procure false birth, medical, marriage and school certificates to escape death penalty. In the first place any age limit to death penalty will prompt unscrupulous elements of society to play foul with the law and the courts. Secondly should such corruption be checked or should we as a society give up on eliminating perjury and instead axe children to death?

The learned and honourable judges of the Juvenile Judgment have quoted some famous jurists in support of their sound reasoning in striking down a law that they describe as "absurd". "Law", they quote, "may be blind but the Judge is not". They also observed that, "the law sometimes is called an ass but the Judge should, as far as it is possible, try not to become one". The litigants can only hope and pray for a clearer vision of the law and its custodians.

The writer is an Advocate of the Supreme Court of Pakistan.

Email: asmalaw@hotmail.com

		Bang, bang, hang, hang In our judicial system there is no uniformity of age under which a child cannot be awarded punishment. Young children are being chastised in the name of law and awarded punishments, which those with a strong backing can easily evade Asma Jahangir The end of 2004 has seen some renewed vigour in the judiciary of Pakistan . After eight years of partial slumber the judicial machinery stirred itself to grant bail to Mr. Asif Ali Zardari. On another note they were quite shrill in expressing their distaste for lavish meals served at wedding parties and called for total austerity. The ban is a relief for hundreds of people who can ill-afford the luxury of splashing "shoras" at their children's weddings. The dispute, however, before the Supreme Court, was not about serving lavish meals. The choice before them was to either allow one dish to be served or to limit it to soft drinks or soups. That too sufficiently irked the Supreme Court to seal the fate of gluttons in the name of Islam. And so, eating or serving food at weddings has been added to the long list of sins by declaring it un-Islamic. This reformist role of the judiciary remains controversial and selective. A recent judgment of the Full Bench of the Lahore High Court has out rightly rejected these reformist tendencies. While striking down the Juvenile Justice System Ordinance the Court mocked at legal reforms that may be disregarded or flaunted with impunity. It attempted to reason that "one quantum leap" or "one stroke of pen" cannot be expected to alter the peculiar socio-legal culture of Pakistan . Hence the message is to sit and wait rather than use any legal tool to improve the situation. The Juvenile Judgment (as it is popularly known) has struck down the entire Ordinance on Juvenile Justice System on the basis that it did not appear to be the finest example of legislative draftsmanship and was inconsistent with the provisions of the Constitution guaranteeing the right to life and equal treatment before the law. Another ground for declaring it unconstitutional was the unrepresentative nature of the Ordinance. It was, according to the judgment, promulgated in the absence of any public debate or parliamentary discussion. The Juvenile Justice System Ordinance 2000, consolidated all previous laws related to children involved in the criminal legal system - either as accused or as victims. It extended internationally recognised criteria of rights to children under the ages of eighteen. In a long-winded judgment the honourable court concluded that separate trials, concessions of bail during trial and the imposition of death penalty for children was violative of the Constitution of Pakistan. They vehemently disputed that a child in Pakistan can be defined as a person under the age of eighteen, especially in connection with the imposition of capital punishment. In their opinion a child in Pakistan gained wisdom earlier than those in the developed world. The reasoning adopted by the honourable Court is worthy of being reproduced. It says: "The stages and standards pertaining to attaining of maturity by young persons in different parts of the world are different and the stages and standards in that regard acceptable in one part of the world may not be strictly relevant to other parts of the world. Such attainment of maturity of understanding is dependent upon social, economic, climatic and dietary factors and we have every reason to understand that a child in our part of the world starts understanding the nature and consequences of his conduct sooner than a child in the West. Growing up in close proximity and interaction with adults due to social and economic conditions, doing odd jobs and getting employed at a relatively young age due to general poverty, hot climate and exotic and spicy food all contribute towards a speedy physical growth and an accelerated maturity of understanding of a child in our society." To take this line of reasoning to its logical end would lead us to conclude that an unfortunate child who is deprived of social, economic and political rights deserves the death penalty, while those who have the advantage of education, eating McDonalds and enjoying fine weather are less brutalised and therefore more innocent in the eyes of the law. In addition the Court is misled into believing that physical maturity has a nexus to mental development. A mistake propounded by the provisions of the Hadood Ordinances. The Juvenile Judgment vehemently predicts that the trend towards abolition of capital punishment in the Western world would prove to be a passing phase. This appears to be wishful thinking and simply not based on any facts. The trend remains towards abolition of death penalty throughout the world. Eighty countries have abolished death penalty for all crimes by law, twenty-three have abolished it in practice and fifteen have abolished capital punishment for all ordinary crimes. In comparison there remain 78 retenionist countries around the world at the present moment. As far as death penalty of children is concerned there is virtual consensus that a child below the age of eighteen cannot be executed. Since 1990 to 2003, eight countries executed 38 children. Pakistan , China , Democratic Republic of Congo, Iran , Nigeria , Saudi Arabia , United States and Yemen remain the only violators in this regard. It is true that International law is not binding on Member States of the United Nations but once a country ratifies a Convention it is morally bound to respect it. Pakistan was one of the six initiators to the convention on the Rights of the Child and has ratified it. The Convention specifically prohibits capital punishment for children under the age of eighteen. Throughout the Juvenile Judgment the Court has expressed its unease with defining a child as a person below the age of eighteen for the purposes of criminal liability. This disapproval appears to have been reached on the premise that research in this matter was lacking and arbitrary. The Court ruled that the law giver had no basis on which to fix eighteen years as the age limit in the Ordinance. It simply glosses over the fact that this cut-off date was gradually raised through sustained dialogue amongst the International community. In Pakistan too the age was gradually raised. For example in Punjab it was previously fifteen years in a similar law. The pivotal law point, however, remains whether the courts or the law making authority have the right to determine the age factor. Courts may strike down a law if it discriminates but not because the judges disagree with it or because there was lack of research on the issue. The judiciary has even less capacity than the legislature to undertake research and generate debate on crucial social issues. There may be a few contradictions in the Juvenile Ordinance but the contradictions in the Juvenile Judgment surpass these. After having sermoned on the undemocratic law making process of the Juvenile Ordinance, the honorable judges lament that it also contradicts the age factor prescribed in the Hadood Ordinances. Surely they had not failed to recall that the Hadood Ordinances were not only promulgated by a dictator but also remain highly controversial. The Hadood laws usurp rights rather than advance them. . The much favoured Hadood Ordinances measure adulthood on the basis of puberty for the purposes of determining criminal liability. Thus a female child ordinarily would reach legal adulthood earlier than a male child. A mentally challenged pubert is presumed to have the same level of understanding of criminal liability as an adult. Yet in the eyes of the Juvenile judgment these laws seemed more rational than the Juvenile Justice Ordinance. In conclusion the Court simply observed that the protection afforded to children under the previous laws were sufficient. This is totally misleading on many counts. The Pakistan Penal Code or The Criminal Procedure Code does not extend to the tribal areas of the NWFP or Balochistan. Each Province has its own legislation extending varying degrees of rights to children. More importantly there is no uniformity of age under which a child cannot be awarded capital punishment. Every province has a different age limit for the imposition of capital punishment regrettably the Court also based their judgment on flawed arguments regarding the deterrent nature of the capital punishment and on the concepts of the right of the victim. Scientific studies have consistently failed to find convincing evidence that the death penalty deters crime more effectively than other punishments. A study updated by the United Nations in 1996 concluded that empirical research gives no positive support to the deterrence hypothesis. The victim and society has a right to ensure that the perpetrators of a crime are brought to justice but it is not their right to insist on death penalty of a child. The key issue is to ensure that no one has impunity. In Pakistan a hardened adult murderer can even escape conviction if the victim or his/her heirs forgive the offender. Throughout the Juvenile Judgment the honourable judges have complained that the Juvenile Ordinance has created havoc in the administration of criminal justice system. Hanging a few children, while those with muscle can get away by paying a few hundred bucks can hardly save an already decaying system. Logic would dictate that in a malfunctioning legal system at least children be spared the death penalty which is irreversible. During the course of reasoning the honourable Lahore High Court has also noted that the Juvenile Ordinance is virtually meaningless in protecting children from the severity of sentence. In their observation courts invariably give a lenient sentence to child offenders. Special laws protecting the rights of vulnerable people are not about charitable discretion of the judiciary but about rights that the State must guarantee to its child citizens. In Pakistan children as young as twelve have been awarded capital punishment. One young man, Sher Ali, was executed in November 2001 for a murder committed when he was 13 years old. At this present moment 9-year-old Nadeem is undergoing a sentence of 273 years of imprisonment in Faisalabad jail. And these are only a few examples. On the one hand the Juvenile Judgment argues that lesser sentencing would encourage adults in exploiting children in committing crimes therefore the Ordinance was impractical but on the other hand it claims that courts do in fact take a lenient view towards the sentencing of children. Thus the temptation of criminal minded adults to use children in crimes is not linked to the Juvenile Ordinance but to a faulty investigation system, which is unable to identify the authors of a crime. There is yet another fallacy that seems to have guided our honourable judges in getting alarmed by the effects of the Ordinance. The panic was high enough for the court to rule that the "evil" should be nipped in the "bud". According to the figures they quote from a local newspaper the crime rate of murder committed by children is reported to have risen. These figures do not, at least, correspond with those available with the Prison Department of the Punjab . None of these figures are officially authenticated and therefore it was even more important for the Court to secure official records before basing their findings on disputed figures. According to the figures available with the Punjab Prison, 596 children were accused of murder in 2003 as against 1098 in 2002. Again the figures of the Punjab Prison department show that children account for around 5% of the prison population accused of murder. If that is indeed the case then the panic and alarm raised by the honourable court about the rising crimes alluded to children was not only misplaced but also unjustified. According to the Juvenile Judgment the Ordinance has promoted corruption in society. They rightly point out that alleged child offenders manage to procure false birth, medical, marriage and school certificates to escape death penalty. In the first place any age limit to death penalty will prompt unscrupulous elements of society to play foul with the law and the courts. Secondly should such corruption be checked or should we as a society give up on eliminating perjury and instead axe children to death? The learned and honourable judges of the Juvenile Judgment have quoted some famous jurists in support of their sound reasoning in striking down a law that they describe as "absurd". "Law", they quote, "may be blind but the Judge is not". They also observed that, "the law sometimes is called an ass but the Judge should, as far as it is possible, try not to become one". The litigants can only hope and pray for a clearer vision of the law and its custodians. *The writer is an Advocate of the Supreme Court of Pakistan.* Email: asmalaw@hotmail.com		"The stages and standards pertaining to attaining of maturity by young persons in different parts of the world are different and the stages and standards in that regard acceptable in one part of the world may not be strictly relevant to other parts of the world. Such attainment of maturity of understanding is dependent upon social, economic, climatic and dietary factors and we have every reason to understand that a child in our part of the world starts understanding the nature and consequences of his conduct sooner than a child in the West. Growing up in close proximity and interaction with adults due to social and economic conditions, doing odd jobs and getting employed at a relatively young age due to general poverty, hot climate and exotic and spicy food all contribute towards a speedy physical growth and an accelerated maturity of understanding of a child in our society." To take this line of reasoning to its logical end would lead us to conclude that an unfortunate child who is deprived of social, economic and political rights deserves the death penalty, while those who have the advantage of education, eating McDonalds and enjoying fine weather are less brutalised and therefore more innocent in the eyes of the law. In addition the Court is misled into believing that physical maturity has a nexus to mental development. A mistake propounded by the provisions of the Hadood Ordinances. The Juvenile Judgment vehemently predicts that the trend towards abolition of capital punishment in the Western world would prove to be a passing phase. This appears to be wishful thinking and simply not based on any facts. The trend remains towards abolition of death penalty throughout the world. Eighty countries have abolished death penalty for all crimes by law, twenty-three have abolished it in practice and fifteen have abolished capital punishment for all ordinary crimes. In comparison there remain 78 retenionist countries around the world at the present moment. As far as death penalty of children is concerned there is virtual consensus that a child below the age of eighteen cannot be executed. Since 1990 to 2003, eight countries executed 38 children. Pakistan , China , Democratic Republic of Congo, Iran , Nigeria , Saudi Arabia , United States and Yemen remain the only violators in this regard. It is true that International law is not binding on Member States of the United Nations but once a country ratifies a Convention it is morally bound to respect it. Pakistan was one of the six initiators to the convention on the Rights of the Child and has ratified it. The Convention specifically prohibits capital punishment for children under the age of eighteen.
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