WHEN young people commit crimes, they should not be treated like adults. Criminal justice systems around the world, including Pakistan’s, formally recognise this. In Pakistan, persons under the age of 18 are entitled to special protections under the Juvenile Justice System Act passed in 2018. As with much legislation in Pakistan on the rights of women and children, the juvenile justice law remains largely unimplemented and the unfortunate reality is that minors accused of crimes continue to be treated as adults by law enforcement.
Why is it so crucial for juveniles to be treated differently by the justice system? Extensive studies of criminal behaviour around the world show that juveniles who come into contact with the formal criminal system are more likely to re-offend. An extensive international study tracking thousands of young people over 35 years concluded in 2010 that formal processing through the criminal justice system “appears to not have a crime control effect, and across all measures, appears to increase delinquency”.
Young people who come into contact with the criminal justice system tend to adopt a ‘deviant’ identity leading them to perpetuate deviant behaviour. They may also come into close contact with other criminals, thereby hardening their criminal identity. By throwing offending juveniles in jail, we are condemning them to a life of crime. The degree of criminal responsibility attributed to young persons should be lower since they are less likely to understand the nature and consequences of their actions. At an impressionable age, they are also more likely to be influenced by counselling and rehabilitative measures.
How we deal with juveniles who run contrary to the law defines how we see ourselves as a nation.
Instead of throwing them in prison, a juvenile’s encounter with the justice system should become an opportunity to reform the young person and address those factors that make a life of crime seem necessary or attractive to them.
In light of this evidence, many criminal justice systems around the world provide an alternative to the formal criminal system known as diversion, where cases involving young persons are diverted to special committees empowered to arrive at alternative outcomes to criminal penalties using processes that rely on dialogue and mediation.
Under Pakistan’s Juvenile Justice System Act, cases involving offences committed by juveniles are to be diverted to a diversion committee, to be established in each district, with the consent of a juvenile or their guardian. The law empowers the diversion committee, known as the Juvenile Justice Committee, to dispose of cases with the consent of the complainant. The law sets forth a number of alternatives that the committee may prescribe in lieu of criminal penalties. These include reparation of damage caused, written or oral apology and placement in a juvenile rehabilitation centre. All cases may be disposed of through the juvenile justice committees other than those involving ‘heinous offences’ — an offence which is punishable by more than seven years.
Removing a case from the formal criminal justice system not only benefits the young offender but also carries several advantages for the victims of crime. Criminal proceedings tend to be punishing for complainants — they are made to suffer through delays and bureaucratic red tape. Given the defects in investigation and prosecution in the criminal justice system, many cases are likely to end in acquittal, which means that there is no justice for the victim. Diversion committees are more likely to lead to outcomes that will bring some sense of closure and reparation to those who have been wronged.
To date, almost four years after the passage of the law, juvenile justice committees are not yet functional. Practically speaking, diversion has not been implemented in Pakistan, which means that juveniles continue to go through the formal criminal justice system.
The Juvenile Justice Act is one example of the many laws enacted in Pakistan without any consideration for the financial resources and human skills required to actually implement them. Juvenile justice committees are mandated to perform very complex roles that require sensitivity, excellent communication and dispute resolution skills. There is no avenue, however, for the development of this skill set. In the absence of a pool of skilled persons who can be appointed to these diversion committees, they are unlikely to have any kind of success. The processes and protocols to be followed by diversion committee must also be carefully designed to ensure that they yield the best outcomes for young persons and also have a positive impact on crime rates. Poorly developed diversion systems could increase vulnerabilities for young persons as well as complainants.
Another reason why it is unlikely for diversion committees to succeed in Pakistan is that there are no practical intervention programmes that juveniles may be referred to. Juvenile rehabilitation centres barely exist. State-provided counselling services are non-existent. Therefore, if juvenile justice committees encounter juveniles who should not be allowed back in their communities without these services, they will not have any meaningful options.
How we deal with juveniles who run contrary to the law defines how we see ourselves as a nation. In the words of the American civil rights lawyer and writer Michelle Alexander, “We could choose to be a nation that extends care, compassion, and concern to those who are locked up and locked out or headed for prison before they are old enough to vote. We could seek for them the same opportunities we seek for our own children; we could treat them like one of ‘us’. We could do that. Or we can choose to be a nation that shames and blames its most vulnerable, affixes badges of dishonour upon them at young ages, and then relegates them to a permanent second-class status for life.”
Operationalising the principles enunciated in our juvenile justice laws is a long and difficult but by no means an impossible task. It requires sincere effort and commitment to the rights and well-being of children. Superficial and knee-jerk approaches will not get us anywhere. Our state institutions and concerned civil society actors will have to work diligently to give our young children a fair chance and develop justice processes that actually deliver.
The writer is a lawyer and partner at a Karachi-based law firm.
Published in Dawn, January 22nd, 2022