D J U D G I N G J U V E N I L I T Y: D E T E R M I N AT I O N O F AG E U N D E R PA K I S TA N ’ S J U V E N I L E J U S T I C E S Y S T E M I FAILURE TO REGISTER BIRTHS LEADS TO RELIANCE ON ARBITRARY VISUAL AGE ASSESSMENTS Pakistan has one of the lowest rates of birth registration in the world. There are nearly 10 million children below the age of 5 years that are currently unregistered with the figure growing by nearly 3 million every year.37 Article 7 of the CRC specifies that every child has the right to be registered at birth without any discrimination. Apart from being the primary and first legal acknowledgement of a child’s existence, birth registration is central to ensuring that children are not treated as adults when they are bought into contact with the criminal justice system as accused parties. The Government of Pakistan’s failure to fulfil the right to birth registration for its children means that the criminal justice system is marred by a high risk of wrongful arrests, detention and executions of child offenders. The responsibility of birth registration falls within the jurisdiction of the National Database and Registration Authority (NADRA) established in 2000. The current administrative framework requires that new-borns be registered within the shortest time possible after birth. However, based on official figures, only 34 percent of children under the age of 5 have been registered.38 Rates of registration also vary drastically between the different provinces with 74 percent children in ICT, 46 percent in Punjab, 25 percent in Sindh, 23 percent in Gilgit-Baltistan, 10 percent in Khyber-Pakhtunkhwa and less than 8 percent in Balochistan being registered.39 Birth registration is also linked to economic status with only 5 percent registration for children in the lowest wealth quintile.40 Furthermore, only 32 percent of the population in Pakistan has a birth certificate whereas 46 percent of the population has no form of registration.41 As a result, upon arrest a significant proportion of the juvenile population possesses no form of evidence to prove their juvenility and is likely tried and sentenced as adult offenders. Based on registration figures, juvenile offenders belonging to impoverished socio-economic backgrounds are more likely to be victims of wrongful arrests. Under Section 10 of the JJSO it is the responsibility of the arresting officer to determine whether the person who has been arrested is a child or an adult. However, the law posits no mandatory requirement for the police to investigate the age of the accused at the time of the arrest and even the First Information Report (FIR)42 does not contain a column to record the age of the accused.43 A lack of sensitization to juvenile justice safeguards, often leads to police failing to investigate the age of the accused persons in their custody. Since recording the age of the accused remains the discretion of the police, they also often deliberately overlook it in order to retain custody of the accused and to deny them the protections accorded to them under the JJSO. Interviews with civil society actors reveal that even when police are trained in juvenile justice safeguards they refuse to abide by them owing to a bias against juvenile offenders. It is common belief amongst police officers that despite the existing legal framework juvenile offender should not be given special treatment within the criminal justice system.44 In cases where the police choose to record the age of the accused, it is predominantly based on a cursory visual assessment. The low rate of birth registration combined with an absence of protocols prescribing the method of determination of age leads to the police to record ages of accused persons based on their observation of their UNICEF, Progress Report 2013-2015: Results for Children in Pakistan: Birth Registration,7-8, (July 2015), https://www.unicef.org/pakistan/Birthregistration_LR.pdf National Institute of Population Studies (NIPS), Pakistan: Demographic and Health Survey: 2012-2013, 19-22, (December 2013) Id. 40 Id. 41 Id. 42 FIR is a written document prepared by police on receiving information regarding the commission of a cognisable offence. 43 Interview with Mr. Atif Adnan Khan, Legal Aid at SAHIL. Date: 25. 11.2016 44 Interview with Iftikhar Mubarik, Date: 26.11.2016 37 38 39 21 DEATH ROW’S CHILDREN