Ever since the Juvenile Justice System Ordinance (JJSO) 2000 was promulgated during the military government of retired General Pervez Musharraf the issues related to juvenile offenders continue to surface in the superior courts. The latest controversy is whether in the presence of JJSO a military court could try a civilian who was below 18 at the time of commission of an alleged offence and whether he could be sentenced to death as the same is prohibited by the ordinance.

The Peshawar High Court (PHC) on Aug 25 stayed the execution of a “juvenile” who was convicted by a military court of terrorism and sentenced to death. A two-member bench comprising Justice Ms Mussarat Hilali and Justice Mohammad Younas Taheem directed the federal government to produce record of his case on Sept 1, the next date fixed of hearing a writ petition filed by Bacha Laiqa, mother of the convict Haider Ali.

The petitioner referred to several grounds on the basis of which she requested the high court to set aside conviction of her son and refer his case to a regular court. The petitioner also claimed that her son was a child as per definition of the Juvenile Justice System Ordinance 2000 as he was below 15 years of age when he was handed over to the security forces in 2009.

According to the documents submitted by the petitioner along with her petition, convict Haider Ali was a brilliant student who had passed his ninth grade board examination in “A” grade by securing 388 of 525 marks. It was claimed that according to his attendance sheet he was regularly attending his 10th grade classes at the Malakand High School, Sersenai, Kabal tehsil, in Swat.

The petitioner claimed that her son was born on Dec 1, 1994. He was allegedly handed over to the security forces by the family in the presence of members of a local jirga on Sept 21, 2009, which happened to be the day of Eidul Fitr. The petitioner alleged that the security officer concerned had made commitment that her son would be set free soon, but that commitment was not fulfilled.

So far it has not been known when and under what specific charges Haider Ali was tried and subsequently convicted.

The ISPR had on April 2, 2015 made a short announcement that the Army Chief had confirmed the convictions and sentences of death awarded to six terrorists by military courts.

The statement did not mention the names of those convicts nor stated when their trials were conducted. Later, the media reported that the six convicts were identified as Noor Saeed, Haider Ali, Murad Khan, Inayatullah, Israruddin and Qari Zahir.

The military courts have been established after the passage of 21st Amendment and subsequent amendments in the Army Act for trying suspected terrorists. The amendments were challenged before the Supreme Court, which dismissed all the petitions against them on Aug 5.

Under Section 2 (b) of the JJSO a child means a person who at the time of commission of an offence has not attained the age of 18 years. Similarly, under Section 12 no child shall be awarded punishment of death.

Experts continue to debate whether a juvenile could be tried by an anti-terrorism court or not. Supporters of JJSO believe that it is a special law and in its presence a child offender shall be exclusively tried by the juvenile court. Due to the same reason, they argue that a few years ago an ordinance was promulgated through which the anti-terrorism court was also granted powers of a juvenile court.

However, the said ordinance had lapsed after its constitutional life of four months.

Some of the experts are of the opinion that certain amendments were made to the Anti-Terrorism Act, 1997 in 2005 following which it was the exclusive jurisdiction of an ATC to try offences under that law. Section 21 G of the ATA states: “All offences under this Act shall be tried exclusively by the Anti-Terrorism Court established under this Act.” The word “exclusively” was added to the said section in 2005.

Now, the issue of a military court trying a juvenile offender has also surfaced. It has to be seen what stance the federal government adopts on this point. Furthermore, it is not clear whether the government would accept Haider Ali as a juvenile offender or it will rebut that argument with some documentary evidence.

Experts believe that the superior courts should decide about the controversial issues related to the juvenile offenders once and for all. The courts may also decide whether under extraordinary circumstances a juvenile can be awarded death sentence or not.

Published in Dawn, August 31st, 2015

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