Age determination of juvenile offenders is a contentious issue in the region of South Asia, specifically Pakistan. Lack of proper age determination has caused the government and courts to sentence juveniles to death and other major penalties, which are reserved for adults. In 2018, the Juvenile Justice System Act (JJSA) was passed to provide a mechanism for age determination. Though the new legislation has tried to uphold fundamental rights provided under the Constitution of Pakistan, it falls short when it comes to protecting juveniles through an accurate and consistent mechanism of age determination. When one is to be tried under the JJSA, the police are obligated to provide certain facilities to the accused, which adds to their workload and is an important reason why they do not make an effort in recommending for age determination mechanisms.
When a juvenile is caught, they are immediately brought to a police station. Section 8 of the Juvenile Justice System Act obligates the police to investigate the age of the accused.
However, it is at the discretion of the police what age they record for the accused juvenile if they do not have 'birth certificates, educational certificates and other pertinent documents.' The court is only obligated to investigate the matter if both of the following two instances are met: the accused person appears to be a juvenile and they are brought before a Court under section 167 of the Code of Criminal Procedure.
The sole responsibility of determination of age lies with the officer in charge of the police station or the investigating officer. This gives undue power to the police. Though a safeguard of a medical examination report by the medical officer is in force when there is a lack of documentation, the medical officer is to report all findings to the officer in charge of the police station, thus giving sole authority to the police.
Some practical solutions could be that the medical officer should not be under the Home Department. For transparency purposes, it is important that the medical examination report be sent to the Health Department instead of just shared with the officer in charge of the police station or investigating officer. Furthermore, the medical officer should be present in court during the initial stages of trial to certify the age of the accused so that the right to a fair and just trial, as embodied in Article 10-A of the Constitution, may be upheld.
To be able to legally strengthen previous procedures, the setting up of a board specialised in age determination for juveniles would be a viable solution. Whenever a juvenile is accused and lacks proper documentation, their file should be sent to this board by the officer in charge of the police station. The board should be independent of any government departments and document the physical as well as mental health of the accused juvenile. The evidence produced by the board should be documented and examined by the court. The board should include, but not be limited to, a child psychiatrist, a paediatrician, a forensics expert, a radiologist and social workers.
Apart from medical tests such as an ossification test, the board should also consider statements by teachers, employers and those who have known the juvenile for most of their life. This should not include statements by family members for transparency purposes. This should be shared with the court as a rule and not on special request. If the police do not refer the case or send the case file to the board, the juvenile cannot be kept in police custody. The board is to independently send their findings to the court, and members of the board should be available for questions of their report.
Indian law has outlined a mechanism that each juvenile case has to follow when there is a lack of documentation to determine age. Though it is not perfect, it clearly states that no juvenile case can move forward without the determination of age, either through proper documentation or through an ossification test. It also states that if the ossification test gives a range and not a specific age, the benefit will go to the accused/victim, especially when juvenility is key to case proceedings. Many Indian judgements have outlined the fact that there is a high chance of error when it comes to an ossification test but are unable to come up with an alternative mechanism.
By setting up a board and not only taking medical findings but also statements by teachers, employers and those who have known the juvenile for most of their life, one can minimise the chance of error. The setting up and rules pertaining to this board should be passed as amendments to the JJSA, to eliminate the need for a new act of parliament.
The courts should also have the authority to declare a mistrial if there is too much ambiguity regarding the age of the juvenile. This would come into effect when the board is unable to reach conclusive findings. This could also be considered by the court when the age range determined was too wide, such as if the age range determined was 16-25 years old.
Simultaneously, good birth registration practices should be established. In Brunei Darussalam, 'Flying Doctor Teams' use helicopters to ensure registration of the births of children. A similar mechanism should be explored by the government of Pakistan to help curtail ambiguities surrounding the age determination of juvenile offenders. Inducting midwives as official members of the provincial Health Departments so that they could register births could also be a step to explore, as many remote and rural areas of Pakistan still depend on midwives for birth practices.
One of the most basic responsibilities of a government is to provide a person with a legal identity. Registration of birth establishes the legal existence of an individual, with its absence having lifelong consequences.
Provided by SyndiGate Media Inc. (Syndigate.info).