Wajahat Ali Malik
The term criminal responsibility refers to a person’s ability to understand his or her conduct at the time a crime is committed. In other words, what a person is thinking when he commits a crime, or what result is anticipated or expected when a crime is committed. Laws define crimes in terms of an act or omission (actus reas) and a mental state (mens reas), so criminal responsibility relates to the mental state element of a crime. In order to be convicted of a particular crime, there must be proof that the person engaged in the alleged criminal conduct possessed the requisite state of mind when the crime was committed.
Criminal responsibility for a juvenile delinquent starts from a certain age limit because a juvenile is considered to be deserving of special treatment, because of his tender age, innocence and lack of proper understanding of the nature or consequences of his conduct at the time of commission of offence.Juvenile delinquents have been granted special remission in age to be held responsible for their criminal acts under domestic and international laws.
Domestic laws in the form of Constitution of Pakistan 1973, Pakistan Penal Code (PPC) 1860, Criminal Procedure Code (CrPC) 1898 and Juvenile Justice System Act 2018 (JJSA 2018) provide protection to juvenile delinquents from criminal responsibility. Article 25 of the Constitution of Pakistan 1973 proclaims equality of law, entitlement to equal protection before the law, and that nothing shall stop the State from making any special provision for women and children.
Pakistan Penal Code 1860 provides safeguards to juvenile delinquents to be held responsible for their criminal acts. Under section 82 of the PPC, the minimum age of criminal responsibility for a juvenile delinquent was set as seven years old. But in 2016, section 82 of PPC was amended through Criminal Law (Second Amendment) Act 2016 and age of criminal responsibility for a juvenile delinquent enhanced from seven to ten years old to address the child abuse issue. This means that an illegal action by a juvenile below the age of ten years cannot be considered a criminal offense. However, the low minimum age of criminal responsibility (10 years) as described in PPC is not compatible with the internationally accepted level of minimum age of criminal responsibility for a juvenile offender.
Similarly, before Criminal Law (Second Amendment) Act 2016, section 83 of PPC provided that nothing is an offence which is done by a child above seven years of age, and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his/her conduct at the time of commission of offence. Section 83 of PPC was also amended through Criminal Law (Second Amendment) Act 2016 to provide further protection to juvenile delinquents from criminal responsibility and it declared that nothing is an offence which is done by a child of immature understanding who is above ten and under fourteen years of age. So, section 83 of PPC further extends the relaxation of criminal responsibility up to the age of 14 years, if the juvenile has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion.
The Criminal Procedure Code 1898 protects the rights of juvenile delinquents in a number of ways. Section 29B of CrPC provides a special procedure for custody, trial or punishment of juvenile offenders by a special judge appointed by the Provincial Government for any area to hear the cases of juvenile offenders. Section 497 CrPC gives relaxation to juvenile offenders for grant of bail in non-bailable offenses, if the juvenile is below 16 years of age at the time of the commission of an offence. Section 399 CrPC provides that in case of sentencing a juvenile who is below the age of fifteen years, the court may direct that such a juvenile instead of being imprisoned in jail shall be confined in any reformatory for his rehabilitation and re-integration into society.
Juvenile Justice System Act 2018 (JJSA 2018) is an exclusive law enacted for the protection of rights of juvenile delinquents and provides a specialised procedure for arrest, investigation, bail, trial, detention, and rehabilitation of juvenile offenders. JJSA 2018 safeguards the relaxation in criminal responsibility of juvenile delinquents through different modes. This law prohibits the awarding of a death sentence or life imprisonment to juvenile convicts. No juvenile offender shall be committed to prison, ordered to labour, put in fetters, handcuffed or given any corporal punishment at any time while in custody of the State. Instead of conviction and sentence, JJSA 2018 encourages the use of probation law, for social reintegration and rehabilitation of juveniles.
This law provides a mechanism for disposal of cases through Diversion, i.e. out of court settlement of disputes without resorting to formal judicial proceedings. All those offences where the maximum punishment is imprisonment for up to seven years with or without fine are declared compoundable for purpose of exercising Diversion under JJSA 2018. Likewise, all kind of offences mentioned in the PPC are declared bailable for juveniles. Bail shall even be granted to juveniles as a right in heinous offences where the punishment is death or life imprisonment or imprisonment for more than seven years with or without fine provided that a juvenile is below sixteen years of age at the time of commission of offence.
JJSA 2018 declares that on receipt of report of probation officer and on conclusion of an inquiry, investigation or trial, the juvenile court may — keeping in view the best interest of the child — pass an order for release of the juvenile offender after the victim or complainant as the case may be, pardons him or passes an order for the community service, fine, compensation to the victim or complainant, restitution of property, counseling or direct the juvenile offender to be released on probation for good conduct or place such juvenile offender under care of a guardian or any suitable person or to be sent to Juvenile Rehabilitation Centre until he attains the age of eighteen years or until the completion of a period of imprisonment, whichever comes earlier.
International laws in the form of the Universal Declaration of Human Rights 1948 (UDHR) and several international conventions on human rights such as UNCRC, ICCPR, UNCAT, CEDAW and ICESCR, all ratified by Pakistan, protect the rights of juveniles. These conventions put Pakistan under the legal obligation to protect the dignity of children and to take measures for full implementation of the juvenile justice system in the country.
Article 40(3) of UNCRC says that States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to those children alleged as, accused of, or recognised as having infringed the penal law, and in particular the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law. Similarly, Article 40(2) of UNCRC provides that State parties shall ensure that no child shall be alleged as, be accused of, or recognised as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed and a juvenile offender shall be presumed innocent until proven guilty according to law.
UNCRC, ICCPR and UNCAT specifically prohibit the sentencing and imposition of death sentence or life imprisonment without possibility of release to juvenile offenders. These three conventions also provide safeguards to juvenile offenders from torture or other cruel, inhuman or degrading treatment or punishment. Likewise, juveniles should not be put in prison with adults and should be able to keep in contact with their families whilst in the custody of the State.
Arrest, detention or imprisonment of any child must conform to the law and be used only as a measure of last resort and for shortest period of time. Speedy trials must be conducted in the cases of juveniles for adjudication and social rehabilitation and reformation services must be provided to juvenile delinquents. CEDAW says that State parties shall take all appropriate measures for the welfare, proper upbringing and best interest of children. ICESCR declares that children and young persons should be protected from economic and social exploitation, and State should take special measures for the healthy development of children.
The low minimum age of 10 years for criminal responsibility of juvenile delinquents in the criminal legal system of Pakistan has received criticism from the UNCRC Committee, who has reviewed the fifth periodic report of Pakistan in June 2016 and issued its concluding observations and recommendations to Pakistan on different thematic areas related to protection of children rights. In relation to administration of juvenile justice, the Committee deplores the worsening situation of juvenile justice in Pakistan and urges Islamabad to revise, as a matter of highest priority, its legislation and increase the minimum age of criminal responsibility to an internationally accepted level and to bring its juvenile justice system fully in line with the UNCRC and other relevant standards.
The low minimum age of criminal responsibility for juveniles in Pakistan leads to their involvement in criminal cases as accused persons and subsequently resulted in convictions, and in some tragic cases, their executions. Thus it needs to be reviewed with immediate effect.