Review of the Lahore High Court Judgment in the case of Farooq Ahmed v. Federation of Pakistan in writ petition No.20654 of 2002 Reported as PLD 2005 lah. 15

REVIEW OF THE LAHORE HIGH COURT JUDGMENT REVIEW OF THE LAHORE HIGH COURT JUDGMENT IN THE CASE OF FAROOQ AHMED V. FEDERATION OF PAKISTAN IN WRIT PETITION NO.20654 OF 2002 REPORTED AS PLD 2005 Lah. 15 By Dr. Faqir Hussain, Secretary, Law & Justice Commission of Pakistan The Lahore High Court in a landmark judgment delivered on 6 December, 2004 struck down the Juvenile Justice Ordinance, 2000 (hereinafter referred to as Ordinance). The verdict was given on a writ petition titled, `Farooq Ahmed v. Federation of Pakistan'. Having scrutinised the various provisions of the Ordinance, the Court came to the conclusion that the Ordinance is defective in drafting, impracticable, unreasonable and unconstitutional, hence void. Strangely though, some clauses escaped judicial scrutiny and yet received mortal blow. Inadequate Legal Assistance The hearing in the case lasted 8 days during the course of 3 years from 18 December, 2002 to 22 November, 2004. Perusal of the judgment reveals that the Court was unable to get adequate legal assistance. It was needed though, in keeping with the critical issues involved and the importance of the case. The Court in its traditional restrained manner and polite style expressed its dismay at the inability of some lawyers to assist the Court. Two prominent senior lawyers and known human rights activists were appointed as amicus curiae in the case, but failed to appear regularly. Notices were also served on the Attorney-General for Pakistan and Advocate-General, Punjab. The former was represented by a Deputy Attorney-General, who also represented the Federation and the later by an Assistant Advocate-General. The Deputy Attorney-General argued in support of the Ordinance whereas, the Assistant Advocate-General, representing the Province of the Punjab, ironically, assailed the law, questioning its, validity and propriety. In the circumstances, the Counsel for the Petitioner had a heyday, as he alone gave detailed arguments in the case. The 3rd amicus curiae also went along the line of arguments advanced by the Counsel for Petitioner and assailed the validity and propriety of the Ordinance. Judgment Analysis Not getting adequate legal assistance from the Bar, the Court took it upon itself to carry out a review/appraisal of the legal literature and judicial precedents of superior Courts at home and abroad. The analysis is not very comprehensive though, certainly not as required by the complexity of the issues involved and importance of the subject. A deficiency in the judgment is its reliance on a repealed Indian statute. Further, the case-law developed by the superior judiciary of Pakistan on the application and enforcement of international law in the domestic sphere is also ignored. The focal point for determination was, as the Court put it, to examine as to whether a youthful offender of mature understanding and fuller comprehension, who knows full well the consequences of his criminal act/conduct, should be extended the extraordinary concessions of the law viz. lenient treatment during trial and abolition of death penalty for juvenile involved in heinous offences i.e. murder, rape, terrorism and drug-trafficking? However, as the Court proceeds to examine the proposition, the focus is altogether lost and the Ordinance as a whole comes under onslaught. At the end of the scrutiny, the conclusion is that the Ordinance is so defective that it has to be put an end to. The result affects not just the mature pubescent or ripe juvenile, having attained sufficient maturity of understanding, but also minor and immature juvenile. With the Ordinance gone, all protections' meant for all juveniles stand abolished. The judgment has a broad sweep; by declaring the Ordinance void, even those provisions stand demolished, whose validity was never questioned by any Counsel nor otherwise examined by the Court. Perusal of the judgment reveals that only one aspect of the law was argued and one shade of opinion projected. Any contrary view was never raised nor argued. A comparative analysis of the Ordinance with similar other statutes is made. In case of any difference or distinction between the two, the Ordinance is assailed. It appears as though the comparison is for the purpose of undermining the relevance or validity of the Ordinance. One keeps wondering as to why one statute, out of many, and some of them of the same genre (Ordinances), is regarded of lesser value or relevance? With due respect to the extremely learned observations of the Court, one has to point out that the repeal of a law by the Court, though authorised by the Constitution, is a serious matter and such power is only sparingly used. Striking a law tantamount to rejecting the cumulative wisdom of the legislature. The Courts do have the power of judicial review, but the law has to be tested on the touchstone of the Constitution and struck off only, if it is found to be in conflict with it. The Court must have solid grounds and valid reasons to do so. In my humble view, this is not the case in the present judgment. True, the Court did not get adequate assistance from the Bar; it therefore made a commendable effort in reviewing the relevant legal literature, taken from national and international jurisdiction. This is however no substitute for legal assistance that the Bar could have rendered. Consequently, there remain some loose ends, even loopholes and shortcomings in the judgment. This is why the judgment is being reviewed in the present lines. It being an important judgment, having far-reaching implications, national and international, must receive candid response from the Bar and intelligentsia. There is still time for appeal. Drafting Errors To start with, one cannot but agree with the general observation of the Court that the Ordinance is not a fine example of legislative draftsmanship. It indeed contains many defects, ambiguities and contradictions. It seems that the draftsman failed to carefully collate its contents vis-a-vis similar other laws. This is, however, a general criticism and can be made against many other laws/statutes. While examining the vires of a law, the Court always attempts to harmonize the seemingly inconsistent or recalcitrant provisions, to bring clarity and give meaning to law. It is only when such reconciliation is not possible; that the provision can be struck off, after its conflict or repugnancy with the Constitution is established. This has to be done on minute scrutiny of every clause and every section of the statute. It. is not the case in the present judgment. Of the 15 sections of the Ordinance, 9 were examined in full or part, and declared void. Few were said to be in conflict with the Constitution. The rest were found inconsistent with or different from other statutes. The remaining 6 sections became casualty, not for any inconsistency or conflict with the Constitution or any statute, but merely because they were listed in the Ordinance, which, lock, stock, and barrel was declared void. Definition of Child The issue of definition of a child is important and has received the greatest attention of the Court. Different definitions of child are given in our national statutes, and perhaps rightly so, as no uniform age can be prescribed for exercising various rights and performing functions. Thus, the Constitution also prescribes different age limits for the purpose of casting vote, contesting election, securing employment, etc. Similarly, various statutes prescribe different age limits for different purposes namely immunity from criminal liability, marriage contract, exercise of civil rights, obtaining a driving licence, etc. The Court looked at the variation in age limits, fixed in various substantive/procedural criminal law viz. sections 82 and 83 of Pakistan Penal Code 1860 (P.P.C.), sections 29-B, 399 and 497 of the Criminal Procedure Code, 1898 (Cr.P.C.) and section 2(a) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The Reformatory School Act 1897, Sindh Children Act 1955 and the Punjab Youthful Offenders Ordinance 1983, also prescribe different definitions of a child. Taking notice of the varying definitions of a child/juvenile offender, the Court focuses on the definition of child fixed as 18 years in sections 2(b) of the Ordinance and observes that it is too high and unreasonable. In its support, the Court relies on the definition of child given in section 50 of the British Children and Young Persons Act 1933, as amended by section 16 of the Children and Young Persons Act 1963. The British Act prescribes inter ilia, safeguards for juvenile offenders. The law fixes 10 years being the age of doli incapax meaning absence of mens rea/guilty intent. Thus, child below 10 enjoys conclusive presumption of innocence. Previously, the law had fixed the age limit of above 10 years but below 14 years for rebuttable presumption of innocence but it was abolished subsequently by section 34 of the Crime and Disorder Act 1998. The Court also relies on the definition of child contained in Section 2(h) of the Indian Juvenile Justice Act 1986. This Act prescribed the age limit of 16 years for boys and 18 years for girls for the purpose of availing the concessions of juvenile law. The Court goes on to trace out similar definition in sections 82 and 83 of the P.P.C., which stipulate that a child below 7 years of age shall enjoy absolute presumption of innocence, whereas a child above 7 but below 12 years may also be presumed innocent, if the Court finds such child of immature understanding. The Court further refers to the definition of child given in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, where the limit fixed is, 18 years for male and 16 years for female or puberty. Similarly, section 299(x) of the P.P.C. defines a child as 18 years of age for the purpose of application of the Qisas & Diyat law. Reference is also made to section 29(b) of the Cr.P.C and section 2(a) of the Punjab Youthful Offenders Ordinance 1983, which define a child to be below 15 years of age. Enumerating the provisions as to age limit in various national statutes as well as the laws of the United Kingdom and India, the Court comes to the conclusion that the age of 18 years, fixed by the Ordinance is high, arbitrarily fixed and therefore void. The Court maintains that it is based on an unreasonable classification and is impermissible under the "special provisions" clause of Articles 25 and 26 of the Constitution. The Court went a great length in comparing the definition of child in the Ordinance with similar definitions in other national and some international statutes. Frankly though, one fails to understand the logic of the exercise. There is no uniform definition of juvenile anywhere. There is no one age limit prescribed in the Indian statutes either. The Court frequently referred to an Indian statute i.e. the Juvenile Justice Act 1986, which in section 2(h) defined a child as 16 years, if a boy and 18 years, if girl. Not getting proper legal assistance, the Court remained unaware that the statute has long been repealed and substituted by a new one. This is the Juvenile Justice (Care and Protection of the Children) Act, 2000. It changed the earlier definition and fixed the age as 18 years, both for boys and girls (section 2-k). This is identical with the definition of child, prescribed in the Ordinance. The Indian statute is in compliance with the international Convention on the Rights of Child 1989 (C.R.C.), duly ratified by that State. The preamble to the Act clearly says so, perhaps to explain the change in definition. On the pattern of India, the Ordinance was Pakistan's response to fulfil its obligations under the C.R.C., which it ratified in 1990. Global Trend to Protect Juveniles The judgment disregards the national, regional and global trend towards creating a protective regime for children in conflict with the law. All civilized nations make provisions for the care and protection of juvenile offenders. Legislation exists for the purpose of fixing criminal liability, prescribing trial procedure, sentencing policy and placement of juvenile in borstal institution. The purpose is to save the child from possible abuse during investigation, prosecution or trial. It is to treat juvenile with dignity and respect all through criminal proceedings, and if proved guilty, then to place him/her in a place/institution, where there are safeguards for health care and facilities for education and training, necessary for reformation and rehabilitation. To achieve the goal, different countries have prescribed different age limits for juvenile offenders to avail the absolute presumption of innocence i.e. 7 years in Pakistan and India, 8 years in Scotland, 10 years in England, 12 years in the Netherlands, Greece and Turkey, 13 years in France, 14 years in Germany and Italy, 15 years in Denmark and Sweden and 18 years in Belgium and Luxembourg. Again the countries have prescribed varying age limits for availing the concessions/benefits of juvenile law. The United States prescribes no fixed age limit. It rather leaves the issue to be determined by the Court, on case to case basis. The Court makes the determination in individual cases, based on inquiry conducted as to the character/antecedents of the child and the child's conduct in the criminal act. Indeed, the juvenile justice system exists all over the world, with varying definitions of juvenile offender. There is no uniformity as to definition of child. The uniformity is in respect of the need for and urgency to safeguard the juveniles from possible abuse in criminal justice system. It is difficult to agree with the observation of the Court that socio-economic development of a society, easy/difficult life style of the people, urban/rural divide of the community or different diets have nexus with early/late attainment of adulthood or maturity. To say that environment or difference in living conditions induce early maturity is a questionable proposition. This is no ground to prove that 18 years age limit, fixed in the Ordinance is too high and unreasonable. Indeed, there is nothing wrong with prescribing different age limits for availing different rights and performing different functions. This is why all over the world, and so in Pakistan, different age limits have been prescribed for the purpose of criminal liability, entering into marriage contract, seeking employment, casting vote, contesting election, obtaining driving licence and attaining majority to exercise civil, economic, legal rights /obligations. The classification is not arbitrary or whimsical or unreasonable. Such distinction is duly recognized by the Constitution in Articles 11, 25 and 26 (Chapter on Fundamental Rights), Articles 35 and 37 (Chapter on Principles of Policy) and Articles 41, 51 and 62 of the Constitution. The Constitution recognizes the status of children, being weak and vulnerable, thus dependent on the proiection of the State/society. It therefore mandates the Government to make "special provisions" for their protection and welfare. The superior Courts have held that "affirmative action" is permissible, as held by the Supreme Court in the case of Shirin Munir v Government of the Punjab (PLD 1990 SC 295), in respect of quota fixed for girls in admission in educational institutions. The judgment makes a reference to this case, but deviates from its principle on the plea that it is distinguishable from the principle of fixing age limit for juveniles in the Ordinance. The definition of child in the Ordinance, in the Court's view, has no reasonable linkage with the "special provisions" clause, as it is violative of Articles 4 and 25 of the Constitution, which provide for equality of citizens. Frankly, one fails to comprehend as to why a classification based on gender is valid for prescribing quota in admission or employment or elective bodies, but not for the protection of juveniles in conflict with the law?. When the Constitution permits -- rather mandates -- and the State implements special legislation for the humane treatment of children, how is that impermissible, particularly, when the need for such measures is undeniable'? Having ratified the C.R.C., the Ordinance was in compliance with binding international obligation. As an honourable member of international committee, Pakistan had to fulfil its commitment. A State obligation indeed becomes an obligation of the organs of the State i.e. legislature, executive and judiciary. All State organs and their functionaries are required to act in unison and perform their functions in accord with international norms/principles. To act otherwise will be to create anarchy/chaos in the system and will surely undermine the status and image of the State in international community. The Ordinance may not be ideal, the finest example of draftsmanship. True, there are problems of implementation of its provisions, but still it contains very laudable goals to achieve. It incorporates new principles of saving juvenile delinquents from abuse and reforming them to become useful members of the society. It serves some very useful functions e.g.: (1) It incorporates norms of civilized and humane treatment of the child, while in custody or during trial; (2) The arrest/detention of a juvenile offender should be a measure of last resort and for shortest possible period of time; (3) Any action concerning juvenile shall take full account of the welfare and best interest of the child; (4) Certain types of punishments i.e. death, labour, fettering/handcuffing and corporal will not be awarded to children; (5) Rather than sending the child to prison, he/she be placed in a borstal institution, where there are facilities for health care, education and training to help rehabilitate/reform the child. With the Ordinance quashed, all safeguards stand abolished. This will expose the child to abuses and hardships, prevalent in the criminal justice system. The criminal justice system of Pakistan is harsh. It can break the back of the strongest. It can transform an innocent person into a hardened criminal. Children, on account of their inherent physical weakness and immature understanding, should not be exposed to it, without adequate safeguard/protection. It is important to respect and protect their dignity and honour. It is the State's legal and international obligation and the community's social responsibility to ensure a humane and dignified treatment to children. Their weak/vulnerable status warrant special protective measures. A juvenile may not necessarily be the perpetrator of crime. Instead, he/she may be a victim of abuse or exploitation by adults. In such a situation, the child of immature understanding must enjoy the privilege of being treated doli incapax (incapable of having mens rea or guilty intent). A reason quoted by the Court for striking out the Ordinance is, its potential misuse by adults to abuse/exploit children for settling vendetta. It may be true, but there is a remedy available: abetment, inducement is an offence. The repeal of Ordinance'is not an appropriate response to the malady. It will merely make the juvenile vulnerable to greater abuse and exploitation. Juvenile Courts The Court correctly brings out the apparent contradiction in Sections 4 and 14 of the Ordinance. The former stipulates the establishment of juvenile Courts for the trial of juvenile offenders, whereas the later provides that the provisions of the Ordinance shall beread in addition to and not in derogation of the any law for the time being in force. There are other laws which also confer jurisdiction on juvenile Courts. One such provision is 29-B of the Cr.P.C. It states that an offence, other than one punishment by death or imprisonment of life, committed by a child under the age of 15 years, may be tried by a Judicial Magistrate, specially empowered by the Provincial Government for the purpose. The Sindh Children Act 1955 (in Sections 7 and 8 thereof) provides for the establishment of juvenile Courts for the trial of children under the age of 16 years. The Punjab Youthful Offender Ordinance, 1983 (in Sections 4 and 5 thereof) also provides for juvenile Courts to be established for the exclusive trial of juveniles under the age of 15 years. The Ordinance is a central law and ordinarily should take precedence over any provincial statutes, as criminal law/procedure is listed in the Concurrent List of the Constitution. However, section 14 of the Ordinance creates confusion by saying that its provisions are in addition to and not in derogation of other laws. This provision undermines the effect of several other provisions in the Ordinance, especially Section 12 thereof, which abolishes certain types of punishments i.e. death, labour, fettering/handcuffing and corporal in respect of a juvenile offender. And whereas this Section gives an overriding effect to itself, there exists certain offences such as blasphemy (section 295-C), gang rape (section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979), where the only punishment prescribed is death. Again, death punishment is also prescribed by P.P.C. and certain special laws such as the Anti-Terrorism Act, 1997, the Control of Narcotic Substances Act, 1997, etc. Section 12 is problematic inasmuch as it abolishes death penalty for juvenile but prescribes no alternative punishment in lieu of death. Should then the juvenile offender go scot free, taking advantage of the draftsman's mischief? This certainly is defect in drafting. It could not have been the intention or purpose of the law maker. Furthermore., the special laws also provide for trial of offenders by Special Courts. The juvenile Courts are also special Courts. The confusion introduced of Section 14 of the Ordinance further aggravates the situation as to which is the proper forum for the trial of juvenile offender involved in a crime under any special law. This is perhaps a valid observation of the Court and the defect in law need to be rectified. Separate Trial The Court also took exception to the provision of Section 5 of the Ordinance, providing for separate trial of juvenile and adult, involved together in an offence. The Court dilated upon the difficulties involved in implementing this provision, particularly because the juvenile Courts are also (general) trial Courts, responsible for the trial of all criminals. The Court alludes to related provisions in the Indian and British laws. However, having examined its pros and cons, the Court favours the UK approach to the issue, where no such provision for separate trial exists. The Court mentions the practical difficulties faced by the trial Courts in implementing this provision and expresses the apprehension that it is likely to result in different verdicts being given by different juvenile/ordinary Courts in one and the same offence. The Court further apprehends that the lenient approach in the juvenile law may also benefit the adult accused. Whereas one certainly appreciates the concern of the Court, the fact remains that the alternative i.e. joint trial will be unfavourable to the child as he/she will be deprived of flip concessions of the juvenile law. The issue of separate trial is not new in Pakistan. The Ordinance is not the first statute to introduce the principle. Similar provisions exist in the Sindh Children Act 1955 and the Punjab Youthful Offender Ordinance, 1983. No other superior Court ever had the occasion to single the principle for criticism on account of the difficulties involved in its implementation. New approaches are different to accept or implement. There are numerous difficulties involved in enforcing the juvenile law or for that matter any other law e.g. the family law. Day in and day out, the Courts perform a most difficult task of weighing competing claims/assertions in trial and in the process exploring new and imaginative methods and approaches to remove or mitigate difficulties, so as to implement the express desire of the law. The Ordinance has been in the field hardly for 4 years. Perhaps more time was needed to settling issues. Given time, the difficulties could have been resolved. They were not insurmountable. If at all they were so proven, then remedy could have been sought from the legislature in the shape of amendments. Striking a law on account of difficulties of implementation is not a good policy. It is impermissible under the law. Special Trial Procedure Section 6 of the Ordinance is also assailed. This Section prescribes special procedure for the trial of juvenile, which is naturally different from the ordinary procedure, followed in criminal cases. In practice, one and the same judicial officer acts as both trial Court and juvenile Court. But the requirements of fixing different days/timings of trial and limitation on persons to be present in a juvenile Court will create difficulties for other under-trials and litigant parties. The Court therefore considers the provision discriminatory to other adult accused persons/parties involved in litigation. The Court apprehension is valid, but once again, it is a momentary difficulty. The intention of Ordinance is to create specially designated Courts for the trial of juveniles. Such Courts are to be comprised of trained and expert Judges. It is expected that in due course of time the juvenile Courts would be made into exclusive Courts, as indeed has been done by the Province of Sindh, where a couple of juvenile Courts have been designated for the exclusive trial of juveniles. Nothing prevents the High Courts to create such special Courts with exclusive jurisdiction. Necessary funding could be claimed for the purpose to fulfil the object of law. This is certainly no ground for striking down the law. Age Determination The Court alludes to difficulties, rather corrupt practices employed by people on account of section 8 of the Ordinance, which provides for determination of age of a person in order to qualify for the concessions of juvenile law. The Section says that in case any question, as to the age of the offender arises, the juvenile Court shall determine the age by recording a finding to this fact, after carrying out an inquiry including medical report for determination of the age. The Court takes the view that this provision has caused enormous increase in corruption in society, inasmuch as people are trying to get favourable determination through use of corrupt means including forged entries in record/ registers. With profound respect to the observation of the Court, the determination of age is required in so many other cases, including service matters. If corrupt means are employed by the public, this is not the fault of the law. What will be the fate of electoral law and many other laws like income tax, custom law, if the Court logic is accepted. Every law or policy, in its implementation creates problems of the kind, the Court is referring to. The Government however must ensure that illegal or improper or corrupt means or practices are not employed. Use of such means /practices, is any way, unlawful and carry penalty. This is no ground for repeal of the law. Release on Bail Exception is also taken to Section 10(3) of the Ordinance, which provides for the Court's power to refuse the release of a child on bail,", even in a bailable offence. The Court considers this provision to be in conflict with Section 496 of the Cr.P.C. and other laws, which say that bail cannot be refused in bailable offences. Such a comparison is uncalled for because the Ordinance prescribes the procedure for trial of juveniles. The juvenile law prescribes new concepts and principles and offers new perspectives to provide for the care and treatment of children. Special measures are prescribed to suit the condition and status of juveniles. This is why an extraordinary discretion is given to the juvenile Court to refuse bail, if there is any apprehension that the child will be exposed to any threat or danger or relapse into life of crime. This is however no shady treatment to the juvenile, as the child will not be given to police custody nor thrown into prison. Instead, will be entrusted to the care of a parent or guardian or probation officer or a suitable person or a suitable institution, responsible for the care and welfare of the child. This is no infirmity in law, it is merely a safeguard for the child, and should be understood in that perspective. Abolition of Certain Types of Punishments The Court further takes exception to Section 12 of the Ordinance, which prohibits the award of certain types of punishments i.e. death, labour, fettering/handcuffing and corporal to a juvenile. The Court compares this extraordinary concession vis-a-vis similar provisions in India and the UK. In the case of India, reliance is placed on the Juvenile Justice Act, 1986, which prescribed different age limits i.e, 16 for boys and 18 for girls to be eligible for similar concession. In the UK, reliance is placed on Children Act, 1908 which provides for immunity from the sentence of death to an offender who is under 16 years of age. The Court, therefore, questions as to why the Ordinance prescribes a high limit of 18 years. This, the Court considers to be unreasonable and discriminatory; therefore the law is struck off. In reality though, the India statute, quoted in the judgment, no longer holds the ground. It stands repealed and substituted by the Juvenile Justice (Care and Protection of Children) Act, 2000, which provides for a uniform definition of a child, being under 18 years of age (section 2(k). The Act also prohibits the awarding of sentence of death or life imprisonment or committal to imprison in default of payment of fine or payment of security (section 16). As such, the Pakistan and India statutes are identical. As regards the UK, usually children under 17 years of age are treated as juvenile offenders and death penalty has been abolished. In the USA, only 40 jurisdictions prescribe death penalty for juveniles involved in heinous crimes. 14 such States having retained death penalty, practically never carried it out. Only one State i.e. Texas is said to be responsible for bulk i.e. 2/3 of execution of juvenile murderers. The US Supreme Court held in the case, Thompson v. Oklahoma, 487 US 815 (1988), that the 8th Amendment of the Constitution prohibits the execution of young persons, under the age of 15 years for crimes committed by them. Thus different States have prescribed different age limits ranging from 16 to 18 years for award of capital punishment in heinous offences. Unlike the UK, India and Pakistan, who have ratified the C.R.C., the USA is not a party to it. The provision for abolition of certain types of punishments such as death is therefore in no way, out of step or in conflict with the rest of the civilised world. It is also not violative of the Constitution or the law. Indeed, the observation of the Court that death penalty is reasserting itself in the world, is incorrect as the trend is for the abolition of death penalty. In respect of children, even life imprisonment is abolished in many jurisdictions including India. The Court's conclusion for repeal of the Ordinance on this account is therefore untenable. Release on Probation The Court also examines the somewhat lenient provision contained in Section 11 of the Ordinance, which provides for the release of a convicted juvenile on probation. The law says that instead of sending the juvenile to prison, he/she may be released on probation and placed under the care/supervision of a guardian or suitable person or sent to a borstal institution. The provision further provides for a periodic review of the case, and if the Court is satisfied that further imprisonment or probation is not necessary, then it can reduce the period of imprisonment or probation. The Court says that this provision along with section 12, which provides for the abolition of death penalty, is extremely lenient and serves as an inducement or encouragement for children to commit most heinous offences such as, murder, rape, terrorism or trafficking in narcotics. The Court states that the increasing incidents of heinous crimes committed by children are directly attributable to the given laxity in law; it should therefore be struck off. The finding however does not seem to be backed by strong and authentic data. Reliance is placed on a report, `State of Human Rights in 2003' of the Human Right Commission of Pakistan (HRCP) and a press clipping of the Daily Jang, Lahore dated 15-11-2003. The HRCP data is not based on any authentic survey or data collected from relevant agencies. It is based on press reports and statements issued by NGO's. The data does not indicate any trend of increasing or decreasing incidents of juvenile offences. Scrutiny of HRCP annual reports reveal sometimes a consistent pattern and at other times, variation in figures. For example, figure quoted in the report for the year 2003 is taken from a report of the Amnesty International, stating that in June, 4500 juveniles were in detention across the country (page 266). The report for the year 2002, quotes the figure of 5000 (page 267). The same report further states that as per announcement of an NGO i.e. Juvenile System Network, over 8000 juveniles remain behind bars in the N.-W.F.P. (page 268). Similarly, the report for the year 2001 gives the figure of 4000 juveniles (page 230). The same report however states that in June, 447 juveniles were detained in the N.-W.F.P. jails (page 230). The report for the year 2000 again gives the figure of 4000 (page 195). And the same figure of 4000 is repeated in the report for the year 1999 (page 194). No particular trend is discernible from the data, even it be admitted as correct. A pending report of the Law & Justice Commission of Pakistan states that on 31st December 2003, there were a total of 2679 juvenile prisoners in the country, with 1616 in the Province of Punjab, 552 in Sindh, 351 in N.-W.F.P., 142 in Balochistan and 18 in AJ& K. The data quoted in the judgment is not free from doubt. It indicates no particular trend of increase in juvenile offences. It is therefore hard to agree with the Court's conclusion that juvenile delinquency is on the increase or more and more juveniles are indulging in the commission of heinous offences, like murder, rape, terrorism and drugs-trafficking. Even if it be so assumed, the fault does not lie with the law, it lies elsewhere. Therefore, the real causes and factors responsible for increased tendency of offence by juveniles be explored and remedial measures suggested. Striking off of the law is no remedy and will not serve the desired purpose. Unreasonable Classification The Court compares the preamble of the Ordinance with the preamble given by the (repealed) Indian Juvenile Justice System Act, 1986 and notices a distinction in phraseology between the two statutes. In the words of the Court, the Pakistani law provides for the "protection of rights for-the children involved in criminal litigation", whereas, the Indian statute provides for "the care, protection, treatment, development, rehabilitation of neglected or delinquent juveniles. Thus, in the opinion of the Court, the Indian law relates to juvenile already found guilty of committing a crime or helpless and neglected juvenile whereas, the Pakistani law focuses only on the protection of rights of children, involved in criminal litigation. The Court then goes on to enumerate the various rights guaranteed by the Ordinance and concludes that they are not recognized by the Constitution of Pakistan. Referring to Articles 25 and 26 of the Constitution and quoting case-law viz. Shirin Munir v Government of the Punjab (PLD 1990 SC 295), the Court takes the view that the precedent is not relevant to the Ordinance. The Court also refers to the case, Muhammad Iqbal Khokhar v Government of the Punjab (PLD 1991 SC 35) and draws the conclusion that the so called "special provisions" clause in Articles 25 and 26 of the. Constitution does not extend to giving extraordinary concessions to juvenile offenders. The Court goes on to elaborate that the protection accorded to children under "special provision" clause in Articles 25 and 26 cannot be stretched to the extent of causing harm and injury to adult victims. Again, making a detailed mention of similar provisions in the P.P.C.; Cr. P. C., Offence of Zina (Enforcement of Hudood) Ordinance and referring to certain judgments of the superior Courts of Pakistan, India, the UK and USA, the Court concludes that the ambit of the Ordinance goes far beyond the permissible limits and therefore is void. With due respect to the Court observation, such a conclusion, is not tenable because in the quoted precedents, the Courts have merely laid stress on compliance with national statute. Frankly, the Ordinance was also the law of the land, at par with other statutes i.e. P.P.C., Cr.P.C. or for that matter the Offence. of Zina (Enforcement of Hudood) Ordinance. It is not proper to pick one statute out of many on the same subject and strike it down for its inconsistency with the other(s). There are rules of interpretation, which provide for an attempt to remove inconsistency between laws/statutes, with a view to bringing harmony and coherence between them. Further, it is difficult to agree with the Court's conclusion that the Ordinance is so defective that it is beyond repair and has 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 Probation Officers. These and some other clauses of the Ordinance were not examined by the Court and yet abolished. The arguments in the judgment follow a consistent pattern, to expose the weaknesses and highlight the difficulties in implementing the Ordinance. Opposite contention is neither raised nor pursued. Again, it is too strong a statement made by the Court, that there was no special need for the promulgation of the Ordinance, as adequate provisions existed in the law and the Courts were mindful of their role and responsibility to protect and safeguard the interests of children. This is easily said but difficult to prove. It has no substance to it. The ground realities are otherwise. True, few sketchy provisions existed as to safeguarding the rights of juveniles. These provisions were however too inadequate to cater to the special needs and requirements of children. The Ordinance was needed. Certain provinces namely the N.-W.F.P. and Balochistan had no legislation for juveniles. The State was criticized internationally for its failure to protect its children. At home, the human rights activists were complaining of official complacency of on going abuse of juvenile offenders. Indeed, the Government was under pressure to act. It did so by promulgating the Ordinance. The way and manner the criminal justice system functions in our country, leaves a lot to be desired! Had the system been performing well, perhaps there would not have been any need for special provisions for juveniles. Perhaps, the framers of the Constitution could not, have vainly inserted safeguards for children and mandated the Government to take special measures for their protection and welfare. No provision of law and especially the Constitution should be taken lightly and brushed aside, for it being unnecessary or undesirable or creating problems of implementation. Every action has reaction. Every special provision or affirmative action leads to some form of discrimination or limitation on the rights of others. But it is justified as a goal, to do away with the century-old injustices and abolish harsh customary practices that have led to discrimination or unfair treatment of the weaker/vulnerable sections of society. The objective of the special measures, also called affirmative actions, is to restore balance by empowering and protecting the weak and exploited. The affirmative action taken by the U.S. Government in favour of the African American community, though discriminatory in appearance, were validated by the Supreme Court, the measure was held to be justifiable and reasonable. In the same way, the creation of quota for women in educational institution was approved by the Supreme Court. Women quota in elective bodies and employment also operates, it being in a justifiable measure under the "special provisions" clause of Article 25 of the Constitution. Why similar measures cannot be taken for children? International Obligations International law is making inroads to the State's domestic jurisdiction, thereby encroaching upon the principle of sovereignty. Besides states, international law now also applies to individuals. Practice varies, but it is generally enforceable by domestic Courts. Under the US Constitution, international conventions form part of the law of the land and are enforced by the Courts. In the United Kingdom, international customs are enforceable by Courts. So are international conventions, provided that they are not in conflict with an Act of Parliament. The French and German Constitutions also provide for the enforcement of international law in the domestic sphere. The practice in Pakistan is identical with the United Kingdom. International customs get enforced. International conventions are, also enforced, except, when in conflict with the Constitution or a statute. The international law is not an alien concept; it is the law of nations, formed through practice or treaties. As such, it is binding and enforceable. The Constitution makes a mention of it. This is an approach also dictated by Islam, which acknowledged many and formulated several new principles of international law, relating to war and peace, human rights and socio-economic development. International law provides for the welfare and benefit of mankind. The Constitution of Pakistan, in its Preamble and chapter on Principles of Policy obligates the State to endeavour to promote international peace and security and foster goodwill and friendly relations among nations. It further expresses the determination of founding fathers that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and make their full contributions towards international peace and progress and happiness of humanity. Pakistan is signatory to various international human rights declarations and has ratified some human rights conventions, including the Convention on the Rights of Child 1989. International conventions, ratified by the State, become binding. The State is expected to fully honour its commitments and obligations. Failure to comply may lead to action -- mild in the shape of criticism/condemnation or severe like economic /financial sanctions. International law is a law, binding and enforceable. Effect is given to it by the legislative, executive and judicial authorities. A view consistently maintained by the superior Courts in Pakistan is that international conventions are enforceable, if not inconsistent with domestic statute. Further, that domestic statute is to be interpreted in a manner, so as to be in harmony with international law. The High Court of Sindh in the case, Messrs Najib Zarb Ltd v. Government of Pakistan (PLD 1993 Kar. 93) observed that every effort should be made to accommodate and implement the rules of international law within the municipal law, even though they may not have been specifically incorporated into the domestic legislation. The Lahore High Court in the case, Nargis Shaheen v. Federation (PLD 1993 Lah 732) held that a provision of the Constitution or the law shall be interpreted in accord with the principles of the Islamic common law, particularly to fill gaps in municipal legislation. The Court further observed that while examining the vires of a law, the. principles of international law should be kept in view. In the case of Hitachi Ltd v. Rupali Polyester (1988 SCMR 1610), the Supreme Court observed that the rules of conciliation and arbitration of the International Chamber of Commerce may be recognised and enforced by the Courts, as they are not prohibited. by domestic law. In the case 'of Nasrullah Khan Henjra v. Government of Pakistan (PLD 1994 SC 23), the Supreme Court again observed that it will make every effort to blend any inconsistency between municipal law and international law, so as to bring about harmony between the two. In the case of Shehla Zia v. WAPDA (PLD 1994 SC 693), the Supreme Court referred to 2 international declarations, namely, the Declaration of UN Conference on Human Environment at Stockholm, 1972 and the Rio Declaration, 1992 and expressed the view that international instruments, even though not ratified by the State, have a persuasive value and should be given due importance and weight. In yet another case, Wajid Shams ul Hassan v. Federation (PLD 1997 Lah. 617), the Lahore High Court referred to the Universal Declaration of Human Rights 1948 and the International Covenant on Civil and Political Rights 1976, even though the later has not been ratified by the Government, and opined that mere non-ratification of a human rights instrument should not undermine the significance of valuable safeguards contained therein for the protection of individual liberty and freedom. The superior Courts point to the relevance and application of norms and principles of international law in the domestic sphere and stress on compliance. This approach is missing in the judgment. The judgment creates a somewhat embarrassing situation for the State. Having ratified the C.R.C., its provisions are binding on the State but now unenforceable by the Courts. The C.R.C. is indeed a framework convention and requires incorporation of its principles into domestic legislation. The Ordinance was the State's compliance with international norms, as it sought to incorporate such norms/principles into the domestic law. The implementation of international convention is the responsibility of the State, performed through its organs, institutions and functionaries. The Court perhaps thinks otherwise, when it says that international declarations/conventions do not create any enforceable legal obligations. This is not true. Effect must be given to the Convention, except when it is in conflict with the domestic law. In case of conflict between 2 national statutes, the Court has to determine as to which of the conflicting provision is also repugnant to the Constitution; then and then alone, may the Court strike it down. No clear repugnancy of the Ordinance with the Constitution is established. What is considered to be an unjustified or unreasonable principle by one judicial forum can very well be determined by another as reasonable and permissible. It is surely a matter of interpretation. The Constitution clearly 'provides for the care and protection of children. Humane and dignified treatment of juveniles and their reformation/rehabilitation is a laudable objective, supported by Islam, Constitution of Pakistan and international law. The Ordinance goes no further than furnishing a protective umbrella to safeguard and protect children, involved in criminal trial. Such protective legislation is no threat to others. With the protection withdrawn, children. are exposed to greater abuse and exploitation. There is therefore, a pressing need to reassess the judgment. It calls for an appeal.