LAHORE, Dec 6: A full bench of the Lahore High Court on Monday struck down the federal Juvenile Justice System Ordinance, 2000, as unconstitutional
, unreasonable and impracticable because it contained such downright absurdities as to create havoc in the country's criminal justice system.
Comprising Justice Khawaja Mohammad Sharif, Justice Mian Mohammad Najamuz Zaman and Justice Asif Saeed Khan Khosa, the bench also ordered abolition of juvenile courts and transfer of all cases pending with them to ordinary courts of competent jurisdiction.
The court also ordered that all accused, who had been tried as juvenile between the date of the promulgation of the ordinance (July 1, 2000) and the announcement of the judgment (Dec 6, 2004), to prove their age at the time of the commission of the offence to claim immunity from death sentence.
"... (He) shall be within his constitutional right to assert and establish that he was less than 18 years of age at the time of the commission of the alleged offence and then claim immunity from death sentence," the landmark judgment said.
The 15-section Juvenile Justice System Ordinance, which extended to the whole of Pakistan from July 1, 2000, provided that a "child" below 18 years of age could not be awarded death penalty and was entitled to a separate trial by a juvenile court.
The Lahore High Court dispensed with these concessions observing that in the presence of different articles of constitutional guarantees, a host of laws, including the Pakistan Penal Code and the Criminal Procedure Code, and numerous judgments of the superior courts, which adequately safeguarded the rights of the child, the introduction of the ordinance was unnecessary and had created confusion in legal field.
The judgment is the outcome of a writ petition through which Farooq Ahmad of Gujranwala had criticized the decision of a trial court to separate the trial of an accused person on the ground of 'minority' for which he produced a certificate to the court. The "juvenile" was part of a group which allegedly sodomized his son and then burnt him alive.
The court first took up the appeal, which was later joined by other identical petitions, in December 2002 and called Abid Hasan Minto, Ms Asma Jahangir and Manzoor Ahmad Malik as amicus curiae in addition to deputy attorney-general and now Justice Mohammad Nawaz Bhatti and assistant advocate-general Ms Yasmin Sehgal for assistance.
The full bench observed that the ordinance was inconsistent with and violative of articles 4, 9 and 25 of the Constitution, replete with many incompatibilities with other laws and some downright absurdities and obscurities rendering it unfit and unsafe for retention in the criminal justice system of the country.
The judgment said the ordinance encouraged and promoted corruption and falsehood in society at a scale which was alarming. Almost every day cases were coming up where fake school-leaving certificates were obtained, incorrect medical opinions about age were procured, forgery and interpolation by union councils in birth registers was committed and even false 'Nikahnama' of parents were prepared to show the lesser age of the accused parson.
It also had a tendency of gross misuse. As such, the law which had the tendency of corrupting society to save children was not worth retaining on the statute book, the judgment observed.
Another anomaly in the ordinance, the judgment held, was regarding the determination of the age of a juvenile. It cited the Cr PC and the Punjab Youthful Offenders Ordinance which provided 15 years as the age for minority.
Section 3 of the Majority Act fixed the age of majority as 18 years and in cases it was 21 years. Section 82 of the Pakistan Penal Code defined a child as seven years old and section 83 of the same code also provided 12 years as the age of a child.
As against that the ordinance provided as 18 years the age of the child which posed a serious legal anomaly because it failed to define a child by gender because girls in our society attained puberty at an age lesser than a boy.
Citing the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the judgment said that it determined the age of an adult at 18 years for men and 16 years for women. The anomaly showed that the ordinance adopted no criterion but arbitrary and whimsical approach in defining the age.
The judgment also said that the ordinance was promulgated at a time when there was no parliament to debate the law. That was why such a confusion was created in the name of child which was the outcome of certain western notions and compulsions which could not be blindly followed in the country in the absence of appreciating the socio-economic condition in the country that were altogether different from those of the West.
The judgment also cited procedural difficulties that had permeated in the trial of the juvenile in subordinate courts. It said that the ordinance was also discriminatory against adult accused. It created a social imbalance because of giving free hand to a certain section of society in the name of the age.
The prohibition of death for the child had resulted in rising incidence of the younger people to commit heinous crimes like murders and gang rape. There were even instances that they were used by criminals to settle score with the opponents, the judgment added.
