Ambiguity over ATCs’ power to try minors intrigues lawyers

Published November 24, 2014
A 13-year-old holds his weapon as he poses for a photo in Pakistan.   - AP/file
A 13-year-old holds his weapon as he poses for a photo in Pakistan. - AP/file

KARACHI: The lapse of an ordinance following its promulgation in 2012 about trial of minors in terrorism cases and a delay in disposal of decade-old appeals pending before the apex court regarding the fate of Juvenile Justice System Ordinance have raised questions over anti-terrorism courts power to try underage suspects.

The Musharraf regime had promulgated the Juvenile Justice System Ordinance (JJSO), 2000 about a decade after the UN Convention on the Rights of Child signing in 1990 to enable law offenders aged less than 18 years to enjoy special treatment in the eyes of law and bar the death penalty.

However, the JJSO seemed not a perfect piece of legislation as it was apparently influenced by the anti-terrorism act and control of narcotics substance act since the former has not overriding effect upon them.

Also, in the absence of separate juvenile courts, high courts have been giving status of juvenile courts to existing regular courts.

The control of narcotic substances courts and anti-terrorism courts (ATCs) have been trying the underage suspects even after the promulgation of JJSO.

There were provisions in the ATA under Sections 12, 21-G and 32 about exclusive jurisdiction of the ATCs to try scheduled offences and overriding effect upon other laws.

Moreover, Section 14 (ordinance not to derogate from other laws) of the JJSO said the provision of the ordinance shall be in addition to and not in derogation of any other law for the time being in force.

However, the then president Asif Ali Zardari had promulgated an ordinance on May 30, 2012, which empowered the existing anti-terrorism courts to exercise the powers of juvenile courts for four months by amending Section 4 of the JJSO. It created an impression as if the ATCs were previously not authorised to conduct the trial of minors. The ATCs across the country had been notified as juvenile courts on the same day.

A couple of days after the issuance of the notification, the Federal Investigation Agency had submitted it before an anti-terrorism court in Benazir Bhutto’s murder in order to justify the trial of an underage accused as he challenged the jurisdiction of the ATC to try him.

However, the amendment was neither extended nor validated through the parliament and therefore it stood lapsed after its constitutional life of four months.

Legal experts observed that the promulgation of the ordinance about ATCs and its lapsing put a question mark on the power of the ATCs to try minors.

There were conflicting judgements of high courts regarding the trial of underage suspects by an anti-terrorism court.

However, an uncertainty still existed on the issue since appeals have been pending before the apex court since 2005 about the fate of JJSO, which was struck down by the Lahore High Court in December 2004, they added.

The full bench of LHC struck down the JJSO after holding it as unconstitutional, unreasonable and impracticable because of “downright absurdities” wreaking havoc on the country’s criminal justice system.

However, the Supreme Court of Pakistan temporarily suspended the LHC judgement in February 2005, after admitting appeals, filed by the federation and an NGO for child rights protection, for regular hearings. But these appeals were still pending.

Similarly, some petitioners approached the apex court in 2011 against a verdict of the Balochistan High Court. The BHC had reversed in October 2010 an order of an anti-terrorism court, Quetta, which sent the case of three minors to sessions court and ruled that the ATC could not conduct the trial of underage suspects.

The BHC had ruled that ATCs had jurisdiction to try the case of juvenile but at the same time also asked that special court under the anti-terrorism act be notified as juvenile court.

The then chief justice Iftikhar Mohammad Chaudhry constituted a full bench to examine questions such as what was the effect of JJSO’s Section 4 on Section 45 of the control of narcotics substances act and Section 12 of the anti-terrorism act or any similar provision of law conferring exclusive jurisdiction to try offences.

Similarly, another question to examine that whether provisions of Section 19(14) of the ATA were wide enough for purposes of treating special court as sessions court for purpose of Section 4(2)(a) of the JJSO or whether they were merely confined to the procedure required to be adopted by special court.

While granting leave to appeal, the Supreme Court observed, “The questions, which have been raised before high court, inter alias seemed to be of first impression as far as this court is concerned, therefore, need to be examined for pronouncement of an authoritative judgement in respect of conferring powers of juvenile court upon the special courts established either under the ATA or CNSA in terms of Section 4 of the ordinance. Therefore leave to appeal is granted.”

However, these appeals were still pending before the apex court.

Prominent lawyer Zia Awan was of the opinion that the ATCs were not competent to try the cases of underage suspects if the amendment in question was no more intact and defence counsel should approach the high court to stay proceedings or transfer such cases to regular courts.

Barrister Salahuddin Ahmed said that a judgement of the Sindh High Court handed down in 2005 ruled that the JJSO prevailed over the ATA and the government made the amendment in question to counter the verdict. However, he was of the opinion that the ATCs had no power to try the cases of underage suspects if the amendment in question had not been validated.

The prosecutor general of Sindh, Sher Mohammad Sheikh, however, insisted that the ATCs were still empowered to trial the minors. He did not provide reason to this claim.

Former prosecutor general Shahadat Awan was of the opinion that the ATCs were still authorised to conduct trial of underage suspects despite the lapse of amendment. There was no major illegality as for purpose of trial of any offence ATCs have all powers of sessions courts which are empowered to try such cases, according to him.

Referring to Section 537 (finding or sentence when reversible by reason of error or omission in charge or other proceedings) of the criminal procedure code, he said any irregularity in the trial had no illegal impact on the case.

Besides citing some rulings of the high courts, he said that under Sections 12, 32, 21of the ATA and Section 14 of the JJSO, the ATCs had exclusive jurisdiction to try scheduled offences and ATA had overriding effect upon JJSO.

However, the former prosecutor general admitted that there was an ambiguity on the issue and suggested that the Supreme Court should take up the appeals on JJSO for hearing and decide it on a priority basis.

Published in Dawn, November 24th, 2014

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