ISLAMABAD, Jan 31: Secretary Pakistan Law and Justice Commission Dr Faqir Hussain says children are now more vulnerable to the rigorous criminal trial with possible abuse by the police and prison authorities
after the Juvenile Justice System Ordinance 2000 was struck off by the Lahore High Court (LHC) recently.
He was speaking at a seminar titled "The endangered juvenile justice system in Pakistan" organized by the Sustainable Development Policy Institute (SDPI) here on Monday. The seminar reviewed the December 6 judgement of the Lahore High Court and discussed its possible implications on children facing such trials.
Dr Hussain gave details of the judgement and said the full bench of the court had struck down the ordinance by terming it "unconstitutional, unreasonable, defective in drafting and impracticable".
The LHC, he maintained, had pointed out serious flaws in the ordinance which, in the view of the court, had the potential of playing havoc with the criminal justice system. It observed that the law was inconsistent with and a violation of some articles of the Constitution.
The official said according to the LHC the ordinance was replete with many incompatibilities and some downright absurdities and obscurities which rendered it unfit and unsafe for retention.
The issue of definition of a child was important and had received the greatest attention of the court, he said. The court was of the view that the age of a child in the ordinance was too high and unreasonable.
The court referred to the Indian Juvenile Justice Act 1986 where the age of a child was fixed at 16 and 18 years for boys and girls, respectively. The court, he said, was unaware of the fact that according to the Juvenile Justice (Care and Protection of Children) Act 2000, the age of a child was 18 years.
He said the court had also ignored that Pakistan was signatory to the Convention on the Rights of Child (CRC) and it was its obligation to use international definition of a child - that was again 18 years.
Presenting his personal views on the judgment, the official said it was difficult to agree with the court's decision that the ordinance was so defective that it was beyond repair and had to be struck off, root and branch, along with certain benign provisions e.g. legal aid/assistance to a juvenile accused or victim, prohibition on publication of juvenile court's proceedings in the media and functions of the probation officers.
He said the opposite contention was neither raised nor pursued. Again, it was too strong a statement for a court to make that there was no special need for the promulgation of the ordinance as, he added, adequate provisions existed in the law and the courts were mindful of their role and responsibility to protect and safeguard the interests of children.
Dr Hussain said the NWFP and Balochistan had no legislation for juveniles and the state was being criticized internationally for its failure to have any such mechanism.
"The judgment creates a somewhat embarrassing situation for the state. After ratification of the CRC, its provisions have become binding on the state," he added. He said the ordinance was the state's compliance with the international norms as it sought to incorporate such norms/principles into the domestic law.
Dr Saba Gul Khattak of the SDPI presided over the seminar. Representatives of different civil society organizations said they would file an appeal in the Supreme Court against the judgment.
