To treat a child as victim instead of a criminal is never easy, but David Crane, the Prosecutor for the Special Court for Sierra Leone, took a definitive stance while facing severe opposition from the local population and said that, “I am not interested in prosecuting children. I want to prosecute the people who forced thousands of children to commit unspeakable crimes.”
Pakistan has an arduous history regarding juvenile justice. Presently, juveniles are prosecuted under the Juvenile Justice System Act, 2018, which repealed the Juvenile Justice System Ordinance (JJSO), 2000, and deals with various aspects of the jurisprudence of juvenile justice, like determining age; bifurcating trial from adults; applying parole and probation laws; ensuring children’s rehabilitation; granting bail; protecting them against capital punishment, torture and so on. However, the courts are hesitant in using their discretionary powers for implementing these rights.
In 2004, Lahore High Court in Farooq Ahmed v. Federation of Pakistan, revoked the JJSO, which was bitterly criticized by the Amnesty International (AI), but the decision was suspended by the Supreme Court of Pakistan (SCP). The International Commission of Jurists’ Briefing Paper, 2016, stated that children were prosecuted and sentenced to death by Pakistan’s military courts. Amnesty International had also published a report in 1985, highlighting various concerns regarding special military courts, and the President’s Order No.4, 1982.
The SCP validated military courts in District Bar Association, Rawalpindi and others v. Federation of Pakistan case, but in the past, it had opposed military justice by bringing the Anti-Terrorism Act (ATA), 1997, in line with the constitution, in the Mehram Ali v. Federation of Pakistan case. However, ATA still violates children’s rights, like section 21C, which not only punishes the perpetrator who trains and recruits a child for terrorism, but also prosecutes the child who is a victim.
Sindh government established a juvenile court in Karachi in 1993, under the directions of the Sindh High Court (SHC), in a constitution petition filed by advocate Zia Ahmed Awan of Lawyers for Human Rights and Legal Aid, and appointed Nilofer Shahnawaz as the first Judicial Magistrate of the juvenile court in Sindh.
Vikram Parekh, in “Prison Bound: The Denial of Juvenile Justice in Pakistan,” published by Human Rights Watch, writes that despite its limited resources, the juvenile court under Nilofer Shahnawaz appears to uphold international and domestic juvenile justice standards more effectively than most criminal courts in Pakistan. He further acknowledged that she ended the use of solitary confinement for the children, and provided them with vocational training.
Maisoon Hussein wrote in “For Life, Peace and Justice,” published by Pakistan Institute of Labour Education and Research (PILER), that Nilofer Shahnawaz initiated “Wa’ada Ghar,” an anti-drug program for the rehabilitation of the children at the prison, and she and her husband Shahnawaz Tariq, retired justice of SHC, voluntarily gave up their Sunday mornings to conduct this program, and that the children confided in her like a mother.
Justice Fahim Ahmed Siddiqui of SHC acknowledged her contributions regarding the development of the probation laws on numerous occasions.
She passed away on 25th January, 2010, due to liver cirrhosis, while serving as Additional District & Sessions Judge. Dr. Aziz Qureshi, senior leader of Indian National Congress, and the former Governor of Mizoram, in a message to her family, on her first death anniversary, acknowledged her dedication, passion and efforts in the exchange and returning of the imprisoned Indian fishermen children. Their meeting was arranged in 1996, by advocate Shoaib M. Ashraf, a human rights lawyer. Dr. Aziz Qureshi gave a press statement, raised this issue in the Indian Parliament, and wrote a note to the then Indian Prime Minister, and ministry of external affairs, which initiated immediate action on the part of the Indian government.
The coastal communities of Sindh, due to Indian maritime borders, are under constant threat of crossing into Indian waters and getting arrested. Even though the tension between the two nuclear powers is at an all-time high, Pakistan’s fishermen in Indian prisons returned home in March 2022, and February 2023. In July 2022, both sides even exchanged the lists of civilian prisoners and fishermen, making cooperation possible regarding their fishermen communities, especially their children.
Both, Pakistan and India, can make special domestic laws, and international agreement like Fisheries Convention, 1964, and establish special courts at the South Asian regional level to ensure the protection of each other’s children under the Universal Declaration of Human Rights; International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention Against Torture; and Convention on the Rights of the Child, instead of treating them like prisoners of war for merely engaging in subsistence fishing.