The Anti-Terrorism Act, 1997 (ATA, 1997), per section 6 of the Act, is applicable to the acts of terrorism defined therein committed by any person. However, there is a special law on the subject providing for the criminal justice system of juveniles i.e. Juvenile Justice System Act, 2018 (JJSA, 2018).
As per general principles of law, the special law shall have precedence over the general law and the law later in time shall prevail over the one which is earlier. Furthermore, section 23 of the JJSA provides that the provisions of the Act should have overriding effect notwithstanding anything contained in any other law for the time being in force. Therefore, as far as the juveniles are concerned JJSA, 2018 shall have precedence over ATA, 1997.
Vide the latest judgment passed by his lordship J. Ishtiaq Ibrahim of Hon’ble Peshawar High Court (Cr. Revision No. 70-P of 2022) titled Saeed Ullah vs. Lal Sher it has been ruled in unequivocal terms that JJSA, 2018 shall in its operation vis-a-vis juveniles take precedence over ATA, 1997. For facility of reference, the relevant excerpt of the judgment noted ibid is being reproduced hereunder:
“Therefore, the latter legislation, the Juvenile Justice System Act 2018, would take precedence in the trial of juveniles accused of committing terrorist offenses. It aligns with the legislative intent expressed in section 4, subsection 4, and section 23 of the Juvenile Justice System Act, 2018. Furthermore, it is worth noting that the Juvenile Justice System Act 2Ol8 mentions three categories of offenses- minor, major, and heinous- with the last one relevant to terrorism-related acts.”
Furthermore, the application of JJSA, 2018 in the case of minors is important the fact that it contains certain safeguards; both substantive and procedural, which are essential for the welfare and protection of the interests of the minors and that the same can only be made available through the platform of the Juvenile Court platform. These measures further go on to include confidentiality of proceedings, detention in observation homes, support from probation and social welfare officers to the investigating officer, and the social investigation report attached to the report under section 113 of the Cr. PC.
Additionally, the spectrum of rehabilitative penalties, such as probation, community service orders, detention in juvenile rehabilitation centers, and the prohibition of capital punishment, ate only envisioned within the parameters of the Juvenile Justice System Act 2018. The absence of such safeguards can affect their right to a fair trial.
It is imperative to make reference to the Law Council of Australia Report, Review of the Prosecution and Sentencing of Children for Commonwealth terrorist offenses, 27th June 2018, where it has been provided that,-
“The Law Council is of the view that in light of the detrimental effects of incarceration on the rehabilitative prospects for terrorist offenders, the .focus on sentencing young terrorist offenders should, where possible, be on alternatives to imprisonment with intensive rehabilitative programs in order to reduce chances of recidivism upon release from such supervision. Where imprisonment is necessary, targeted rehabilitative programs should be available to offenders while serving their sentence”
Pakistan has ratified the United Nations Convention on the Rights of the Child. As per Article-40 (2) (b) (iii) & (VD of the Convention, the trial of a child should be conducted in a juvenile court, ensuring safeguards of their privacy. Article-40 (2) (b) (IV) requires proper procedural measures are in place to ensure the child effectively participates in the trial. Furthermore, Article-40 (1) emphasizes a rehabilitative approach to passing sentences.
The said Article postulates that the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for human rights and fundamental frame and all others and which takes into account the child’s age and desirability of promoting child’s/integrity and child’s assuming a constructive role in the society. The Juvenile Justice System Act, 2018 provides a mechanism to protect the rights of a child and a way to attend/deal with his case keeping in view the best interest of the child.
Recently, a single-member bench consisting of Justice Ishtiaq Ibrahim accepted the plea of an under-trial juvenile accused and directed that his case should be forthwith transferred to the Peshawar juvenile court. The petitioner was arrested after a firing incident on the premises of Peshawar Judicial Complex that left three persons injured, including a lawyer Yousaf Riaz Khalil, in September 2018.
He was charged under sections 324, 34, and 337-4 (i) of the Pakistan Penal Code, section 15 of the Arms Act, and section 7 of the Anti-Terrorism Act. At the time of occurrence, the petitioner was below 17 years of age. The bench ruled that after the promulgation of JJSA 2018, the legal framework had changed. Referring to section 4 of the JJSA, the bench observed that the provision provided that the juvenile court should have exclusive jurisdiction to try cases in which a juvenile was accused of the commission of an offense.
The court maintained that as conflicting provisions in both laws (ATA and JJSA) displayed irreconcilable discrepancies, therefore, the latter legislation, the JJSA 2018, would take precedence in the trial of juveniles accused of committing terrorism offenses.
The bench observed that it was crucial to consider that certain safeguards, both substantive and procedural, available to minors could only be ensured through the platform of the juvenile court. Given the overlapping use and interpretation of ATA, 1998 and JJSA, 2018, there is a need to bring reforms in the existing bulk of laws to bring more clarity and avoid confusion considering the best interest of children.
(I want to dedicate this article to my mentor Sir Shahzad Saeed for being the best mentor and from him I’ve learned a lot of things Muhammad Areeb Khan for being the most competent lawyer and one who has always inspired me in so many ways through his work.)
