The Juvenile Justice
System Act of 2018
Presented by
Dr. Umair Minhas
On zMay 18 2018, the President of Pakistan approved the
Juvenile Justice System Act (JJSA) 2018, which was passed
by the Parliament earlier this year. JJSA 2018 overcomes
the shortcomings which were present in Juvenile Justice
System Ordinance 2000, and provides a much better system
for criminal justice and social reintegration for juvenile
offenders.
The object of this Act is to modify the laws relating to criminal
justice system for juveniles by providing special focus on
disposal of cases through diversion and social reintegration
of the juvenile offenders.
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JJS Act 2018 classifies the criminal offences into following
three different categories:
1) Minor, which means an offence for which maximum punishment under the Pakistan
Penal Code, 1860 is imprisonment for up to three years with or without fine. A juvenile
is entitled to bail in minor offences, with or without surety bonds by Juvenile court.
2) Major, which means an offence for which punishment under the Pakistan Penal
Code, 1860 is imprisonment of more than three years and up to seven years with or
without fine. Bail shall also be granted in major offences with or without surety bonds
by juvenile court.
3) Heinous, which means an offence which is serious, brutal, or shocking to public
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morality and which is punishable under the Pakistan Penal Code, 1860 with death
or imprisonment for life or imprisonment for more than seven years with or without
fine. A juvenile of less than sixteen years of age is entitled to bail in heinous
offences, but a bail is on discretion of court if juvenile is more than sixteen years of
age.
Major Definitions of JJSA 2018:
Child means for the purposes of this Act a person who has not attained the age of
eighteen years;
Diversion means an alternative process of determining the responsibility and
treatment of a juvenile without resorting to formal judicial proceedings;
Juvenile Offender means a child who is alleged to have committed or who has
been found to have committed an offence;
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Heinous Offence means an offence which is serious, gruesome, brutal, sensational
in character or shocking to public morality and which is punishable under the
Pakistan Penal Code, 1860 with death or imprisonment for life or for more than
seven years with or without fine;
"Best interest of the child" means the basis for any decision taken regarding the
child to ensure fulfilment of his basic rights and needs, identity, social well-being,
physical, emotional and psychological development;
Major offence means an offence for which punishment under the Pakistan Penal
Code, or any other law is more than three years and upto seven years imprisonment
with or without fine;
Minor Offence means an offence for which maximum punishment under the
Pakistan Penal Code or any other law is imprisonment up to three years with or
without fine
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SALIENT FEATURES OF THE LAW
Free Legal Assistance for Children
(1) Every juvenile or a child who is victim of an offence shall have the right of
legal assistance at expense of the State.
A juvenile (He /She) shall be informed about his rights available under the law
by a legal practitioner within twenty four hours of taking him into custody.
A legal practitioner appointed by the Government or by the Juvenile Court shall
have at least seven years standing at the Bar.
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Establishment of Exclusive Juvenile Court
(1) The Government in consultation with the concerned High Court shall [by
notification in the official Gazette] establish or designate one or more Juvenile
Courts, within a period of three months of the commencement of this Act.
(2) A Juvenile Court may be established for one or more sessions divisions and that
case the Juvenile Court may hold trial of a case at such place as the High Court may
specify.
(3) No person shall be appointed as a Judge of a Juvenile Court unless he /she is or
has been a Sessions Judge or an Additional Sessions Judge or a Judicial Magistrate.
(4) All cases pending before a trial court in which a juvenile is accused of an offence
shall stand transferred to the Juvenile Court having jurisdiction.
(5) On taking cognizance of an offence, the Juvenile Court shall decide the case
within six months.
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(6) Where the case is not decided within six months in terms of sub- section
the Juvenile Court shall seek extension from the High Court concerned
explaining the reasons for not being able to decide the case within prescribed
time-limit. If no such extension has been sought by the Juvenile Court, the
complainant or the juvenile may make an application to the High Court in this
respect.
(10) The Juvenile Court may hold its sitting at a place, other than the place in
which the ordinary courts hold sittings for trial of other cases.
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Process of Arrest
(1) The arrested juvenile shall be kept in an observation home and the officer-
in-charge of the police station shall, as soon as possible,
(a) inform guardian of the juvenile; and the concerned probation officer to enable
him to obtain such information about the juvenile;
(b) No juvenile shall be arrested under any of the laws 'dealing with preventive
detention or under the provisions of Chapter VIII of the Code.
(c) The report under section173 of the Code shall also describe the steps taken
by the officer-in-charge for referring the matter to the Juvenile Justice Committee
for disposal of case through diversion, where it was so required under Section 9.
Release
z of a Juvenile on Bail
A juvenile accused of bailable offence shall be released by the Juvenile Court
on bail with or without surety unless it appears that there are reasonable
grounds for believing release of such juvenile may bring him in association
with criminals or expose him to any other danger.
Where a juvenile of more than sixteen years of age is arrested or detained for
a heinous offence, he may not be released on bail if the Juvenile Court is of
the opinion that there are reasonable grounds to believe that such juvenile is
involved in commission of a heinous offence.
Investigation
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in juvenile cases by senior police officer
A juvenile shall be interrogated by a police officer not below the rank of Sub
Inspector under inspection of Superintendent Police and assisted by a probation
officer or social welfare officer.
Determination of age by the police
The officer-incharge of the police station or the investigation officer shall make an
inquiry to determine the age of such person on the basis of his birth certificate,
educational certificates / medical certificate or any other pertinent documents. In
absence of such documents, age of such accused person may be determined on
the basis of a medical examination report by a medical officer.
Disposal
z of cases through diversion
The Juvenile Justice Committee shall dispose of a case, with consent of the
person against whom the offence was committed, by resorting to different
modes of diversion.
Establishment of Juvenile Justice Committee
On commencement of this Act but not later than three months, the
Government in consultation with the concerned Sessions Judge shall
establish the Juvenile Justice Committee for each sessions division. The
Committee shall consist of four members namely serving Judicial Magistrate,
district public prosecutor; member of local Bar having at least seven years
standing at the Bar, serving probation officer or social welfare officer.
Procedure
z of Juvenile Court
(1) Juvenile Court shall follow the procedure provided for in the Code unless
provided otherwise in this Act.
No person shall be present at any sitting of the Juvenile Court, except staff
and officers of the Juvenile Court; parties to the case before the Juvenile
Court, the police officers; guardian; and such other persons as the Juvenile
Court directs to be present.
The Juvenile Court may direct any person to withdraw from Court; the
Juvenile Court may dispense proceed with the trial of the case in absence of
the juvenile. When a juvenile is found to be suffering from serious illness,
whether physical or mental and requires treatment, the Court shall send such
juvenile to a hospital or a medical institution where treatment shall be given
to the juvenile at the expense of the State.
Trial of Juvenile with Adult Person
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No juvenile may be charged with and tried for an offence together with an
adult.
In case of joint trial, the Juvenile Court may dispense with the physical
presence of the juvenile before it without any application in this regard and
juvenile may be allowed to join the-Court proceedings through audio-visual
technology link.
Disclosure of Identity of the Juvenile
Whoever prints or publishes the name or any matter which may make known
identity of a juvenile shall be punished with imprisonment of either description
for a term which may extend to three years and shall also be liable to fine.
Report
z of Probation Officer
The probation officer shall assist and prepare a report on direction of the Juvenile
Court regarding juvenile's character, educational, social and moral background;
juvenile’s admission of committing an offence, if any, has been made with free
consent and voluntarily. Steps taken for mediation or compromise with the
complainant or victim and possibility of settlement; and possibility of sending the
juvenile to Juvenile Rehabilitation Centre or release on probation.
Powers of Juvenile Court to Order for Release
The Juvenile Court may pass an order for release of the juvenile offender after the
victim or complainant, as the case may be, pardons him;
Provided that the Juvenile Court may refuse to release the juvenile offender if it
considers that such release is against the public policy or the interests of the State;
(a) passz an order for the community service, fine, compensation to the victim or
complainant, restitution of property, counselling;
(b) direct the juvenile offender to be released on probation for good conduct and
place such juvenile offender under care of a guardian or any suitable person or such
Juvenile Rehabilitation Centre established or certified for the purposes of this Act for
any period not exceeding the period of confinement awarded to such juvenile;
(c) direct the probation officer to submit probation report in prescribed manner:
Provided that if a juvenile offender violates the conditions on probation, the Juvenile
Court may pass any order as it may think fit, including cancellation of probation
order; or
(d) make an order directing the juvenile offender to be sent to a Juvenile
Rehabilitation Centre until he attains the age of eighteen years completes the period
of imprisonment.
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Orders that Shall not be Passed with Respect to a Juvenile
punishment of death.
be ordered to labor, put fetters, handcuffed or given any corporal punishment at any
time while in custody:
For reasonable apprehension of the escape of the juvenile offender from custody
who is more than sixteen years of age and involved in heinous offence, he may be
handcuffed or put into a solitary confinement in a Juvenile Rehabilitation Centre or
observation home for a period not exceeding twenty-four hours.
Special Provision for Female Juveniles
Shall not be apprehended or investigated by a male police officer or released on
probation under supervision of a male officer.
Shall only be kept in a Juvenile Rehabilitation Center established/ certified
exclusively for female inmates.
Establishment
z and Certification of Observation Homes
and Juvenile Rehabilitation Centres
(1) The Government may establish and maintain observation homes and Juvenile Rehabilitation
Centres for the reception of juveniles, including separate centres for female juveniles;
(2) The Government may certify an observation home or a Juvenile Rehabilitation Centre managed
or controlled by a non-governmental organization for reception of juveniles.
(3) The Government may certify an already established association or society in any local area for
social reintegration or rehabilitation of a juvenile offender
Inspection of Observation Homes and Juvenile
Rehabilitation Centers
A member of the Juvenile Justice Committee with prior approval of head of the Committee or an
officer authorized by the Government, may inspect an observation home or a Juvenile
Rehabilitation Center.
Act to override other laws - The provisions of this Act shall have over riding effect notwithstanding
anything contained in any other law for the time being in force.
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Recommendations
Section 6 of the Act deals with the 'Release of Juvenile on Bail', but according
to Section 6(4), a juvenile may not be released on bail if he is more than 16
years of age and arrested for any heinous offence. It creates confusion with
regard to fixation of age and its further classification especially if read together
with Section 15 of the Act which provides Power of Juvenile Court to issue
order for release but is silent concerning juvenile of more than 16 years
arrested for any heinous offence.
Section 4 of the Act deals with the establishment of juvenile court and Section
12 provides a separate trial of a juvenile with an adult with exceptions.
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The JJSA 2018 is very different
from JJSO 2000, and the following
are some of its salient new
features:
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1) Right of legal assistance: every juvenile or child victim of an offence shall have the
right of legal assistance at the expense of the State. A juvenile shall be informed
about his right of legal assistance within 24 hours of taking him into custody.
2) Observation home: this means a place where a juvenile is kept temporarily after
being apprehended by police as well as after obtaining remand from juvenile court or
otherwise for conducting inquiry or investigation. Observation Homes shall be made
separately from police stations.
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Continued…
3) Juvenile rehabilitation centres: this is a special kind of prison established exclusively
for keeping juvenile offenders. The convicted juvenile, shall be confined to the
premises till the completion of period of imprisonment or until they turn 18 years of age.
Here convicts can receive an education as well as vocational or technical training for
their development and includes certified institutions including women crises centres.
4) Determination of age mechanism: JJS Act 2018 makes it compulsory upon the
ranking officer-in-charge, or the investigation officer, to make an enquiry to determine
the age of any such alleged offender, who physically appears or claims to be a juvenile.
Age shall be determined on basis of accused person’s birth certificate, educational
certificates or any other pertinent documents. In absence of such documents, age of
such accused person may be determined on the basis of a medical examination report
by a medical officer.
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Continued…
5) Disposal of cases through diversion: this is an alternative process of
determining the responsibility and treatment of a juvenile on the basis of his social,
cultural, economic, psychological and educational background, without resorting to
formal judicial proceedings. The complaint against a juvenile shall be referred to
the Juvenile Justice Committee for disposal through diversion. All offences, either
minor or major, shall be compoundable for purpose of diversion. For major
offences, diversion can only be exercised if the age of the juvenile is not more
than 16 years.
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Continued…
6) Juvenile Justice Committee: this shall dispose of cases through diversion
within a period of one month from the date of the referral. The Committee shall
dispose of a case with consent of the complainant by resorting to different
options, including restitution of movable property, reparation of the damage
caused, written or oral apology, participation in community service, payments of
fine and costs of the proceedings, placement in juvenile rehabilitation centre;
and written and oral reprimand. If the offence has been committed against a
State and not against an individual; the Committee may dispose of the case
through diversion with consent of the concerned public prosecutor. The
Committee shall also perform inspection of Observation Homes and Juvenile
Rehabilitation Centres and may give directions to concerned persons for
welfare and social re-integration of juveniles kept in these places.
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Continued…
The J.J. Committee is set to consist of four members, including a serving Judicial
Magistrate with powers under section 30 of CrPC (Head of Committee); District Public
Prosecutor; Member of local Bar having at least 7 years experience, appointed by the
concerned Sessions Judge for a period of 2 years; and serving probation officer or
social welfare officer not below BPS-17. One thing that is missing is the presence of a
qualified child rights activist that understands the plight of the underage victims, and is
equipped to deal with their issues.
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Continued…
7) Separate challan and trial of juvenile offenders: a juvenile shall not be charged with
and tried for an offence together with an adult person. But if it is in the interests of justice
to hold a joint trial of a juvenile and an adult, the juvenile court may dispense with the
physical presence of the juvenile and they may be allowed to join the Court proceedings
through audio-visual technology link.
8) Imposition of penalty for disclosure of identity of juvenile or to publish proceedings of
juvenile court: JJS Act 2018 exclusively bars revealing the identity of an accused juvenile
to the public without the authorisation in writing of the juvenile or their next-of-kin. The
S.H.O, investigating officer or the juvenile court can also grant permission in this regard.
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Continued….
9) Special provisions for female juveniles: Female juveniles shall not in any
circumstances be apprehended or investigated by a male police officer or released on
probation under supervision of a male officer. A female juvenile shall only be kept in a
Juvenile Rehabilitation Centre established or certified exclusively for female inmates.
10) Removal of disqualification attached with conviction: A juvenile offender convicted
under the provisions of JJS Act 2018 shall not suffer a disqualification, if any attaching
to a conviction of an offence under such law.
11) Preventive Detention: No child shall be arrested under any of the laws dealing with
preventive detention or under the provisions of chapter VIII of the Code of criminal
procedure.
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The End
