When minors commit a crime, should they be punished like adults? Should minors be punished lightly or not at all for children under the age of 10, regardless of the severity of the crimes committed?
John Stuart Mill extended the applicability of his doctrine only to humans with mature faculties. Expecting the same maturity and behaviour standards from children as adults would be like treating “unequals” as equals.
On the other hand, it is also likely that Mill would advocate for reformation of the law. Likewise Jeremy Bentham, the father of utilitarianism, may contend that the punishment must fit the crime because human beings are calculative animals, capable of gauging their own pleasure versus pain. Based on his penal theory, derived from classical criminology, the relevant laws should be enforced on a quid pro quo basis hence circumstances, such as mental state, age and repeat offending should be ignored by assuming equality of offence and offenders.
John Rawls’ distributive justice theory portends that justice can only be upheld when all people are in an original position of equality. Behind a veil of ignorance, we do not know whether we will be born in a harsh environment, predisposed to commit crimes. Such uncertainty will lead us to favour a social safety net to protect ourselves from risky situations. Based on this notion, people would agree to a juvenile justice system.
On the other hand, libertarians would be dead set against Rawls’ argument since they believe in a laissez-faire, free market, where the state’s role is kept to a minimum.
Aristotle, who founded the idea of virtue and polis, fervently believed that social order can only be maintained when there is an authority figure. Aristotle lived under the influence of the Spartan Constitution, which stated that all people were owned by the state. Thus the very concept of the juvenile law, which acknowledges that each minor has individual rights, breaches the constitution. The state controls the constitution, which in turn, shows citizens how to live as good citizens.
For Aristotle, justice means giving people what they deserve since he believed that it was possible to reason about the purpose of social institutions.
In the case of Pakistan, the Juvenile Justice System Ordinance (JJSO) is a landmark legislation. It was promulgated on July 1, 2000. However, the JJSO has yet to be effectively enforced, leaving much to be desired in terms of how children accused of committing crimes are treated by the authorities and in terms of supplemental efforts made to prevent juveniles from becoming repeat offenders and serious offenders. The JJSO is a progressive law, and a few steps by the government could help implement it in letter and spirit throughout the country, including Fata.
Under the JJSO, every child who comes in contact with the law is entitled to free legal aid at the state’s expense but due to a lack of budgetary allocation for the purpose, it has resulted in a child being unable to get legal provision. Both the federal and provincial governments should take necessary steps for setting up exclusive juvenile courts and designated juvenile judges, establish borstal institutions and provide free legal aid at the state’s expense as per the Ordinance. Such comprehensive system will not only provide punitive measures to deal with children who break the law, but can also help turn young offenders away from a life of crime.