II ADJUDICATION OF JUVENILITY CLAIMS FALLS SHORT OF INTERNATIONAL LAW STANDARDS An absence of comprehensive guidance on how and when to determine age of an accused person has marred a significant number of trials of juvenile offenders with confusion and arbitrariness. There is no prescribed process under either the Pakistan Penal Code (PPC) or the Code of Criminal Procedure (CrPC) to determine the age of a prisoner at the time of arrest and during the trial. Section 7 of the JJSO is the sole provision under Pakistani law dealing with determination of age inquiries. It simply states: “If a question arises as to whether a person before it is a child for the purposes of this Ordinance, the juvenile court shall record a finding after such inquiry which shall include a medical report for determination of the age of the child.” This section clearly does not contain sufficient detail to ensure that determinations of age are conducted in accordance with international standards, including those set out in General Observation 6 of the Committee on the Rights of the Child, which states that the assessment on the age of a child “must be conducted in a scientific, safe, child and gender-sensitive and fair manner, avoiding any risk of violation of the physical integrity of the child; giving due respect to human dignity; and, in the event of remaining uncertainty, should accord the individual the benefit of the doubt such that if there is a possibility that the individual is a child, s/he should be treated as such.” 52 Condemning the failure of the current juvenile justice framework in identifying juvenile offenders and protecting them from executions the CRC Committee, in its Concluding Observations to Pakistan’s fifth periodic state report, recommended that the Government of Pakistan “establish effective age determination mechanisms in order to ensure that in cases where there is no proof of age, the child is entitled to a proper investigation to establish his or her age and, in the case of conflicting or inconclusive evidence, has the right to the rule of the benefit of the doubt.” 53 a L AC K O F AG E D E T E R M I N AT I O N P ROTO CO L S L E A D S TO C O N F L I C T I N G J U D G M E N T S O N T H E E V I D E N T I A RY VA L U E OF DIFFERENT TYPES OF EVIDENCE Contrary to international legal jurisprudence, the burden of proof is posited on the accused person in age determination proceedings under Section 7, JJSO who is also not accorded any benefit of doubt. The Supreme Court of Pakistan in Muhammad Raheel v. State unequivocally stated that “claim of juvenility was based upon an assertion of fact and the onus to prove such fact was upon the accused person and if he failed to establish such fact through positive evidence then no advantage could be taken by him on such score and no benefit of any doubt regarding his age can be extended to him.” 54 As discussed above, given the low rate of birth registration such a burden is virtually impossible to dispel in majority of the cases. Even where government registration documents are present, they are often disbelieved by the courts at both trial and appellate levels. 55 In the absence of any protocols governing the determination of age by courts and no benefit of doubt being accorded to the accused the eventual outcome is that the court invariably relies upon the evidence that disputed the juvenility plea of the accused regardless of its nature.56 Domestic jurisprudence is conflicted on evidentiary value of conflicting records, and an empirical analysis of judgements under Section 7 demonstrates that there is no apparent consistency of age determination procedure adopted by the courts; in practice they are free to choose any evidence that favours the verdict of their choice. Justice Project Pakistan has analyzed around 140 reported cases, since the beginning of the operation of the JJSO in 2000 to 2016, wherein a plea of juvenility under Section 7 of the JJSO had been raised by an accused person. UN Committee on the Rights of the Child, General comment No 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin (1 September 2005)(CRC/GC/2005/6), para 31 <http://www.refworld.org/docid/42dd174b4.html> accessed on 4 March 2016 Supra note 9, para 25 54 PLD 2015 Supreme Court 145 55 Supra note 56 Supra note 43 52 53 25 DEATH ROW’S CHILDREN