Introduction
During the time of the British Raj in the subcontinent of India, a set of civil and criminal laws, rules, and regulations were established ostensibly to maintain law and order in the land, but essentially to ensure that the people of British India remained in the total control of the government. However, in the mountainous areas of the North West Frontier, the region known as the Federally Administered Tribal Areas (FATA) and Provincially Administered Tribal Areas, now a part of Pakistan, a special set of rules and regulations were devised that effectively placed the people of the region under the dictatorial rule of the Political Agent, and his cohorts -- the khans and maliks (tribal leaders or chieftains) -- who chose to support the British in their endeavour to subjugate the unruly yet fiercely independent tribes of the Frontier.
After Independence, and the birth of a sovereign Pakistan, it was hoped that the Constitution of 1973 would herald a new era of freedom for the people of this country to flourish and progress. However, unlike the rest of Pakistan, the Constitution was not applied to the region of FATA, whose people continued, and still continue, to suffer the indignities and cruelties of the archaic British laws under the Frontier Crimes Regulation (FCR), established in 1901 in their present form.
Eventually, a ray of hope shone brightly for the people of FATA when, on 29 March 2008, the Prime Minister of Pakistan Makhdoom Yousuf Raza Gilani, in his first speech to the National Assembly of Pakistan, vowed to repeal the FCR which he termed ‘the Black and Obsolete Law of the 20th Century’1. Following the prime minister’s March announcement, on 14 August 2009, the President of Pakistan Asif Ali Zardari, also declared that the draconian laws of the FCR will be abolished or amended.2 Since these announcements, a committee has been constituted to look into the matter and make recommendations.
There is a need to support the complete abolition and repeal of the FCR, so that FATA may be brought under the purview of the Constitution of Pakistan, 1973 in the same manner that the rest of Pakistan enjoys. The FCR is a direct contravention of the Constitution of Pakistan, 1973, as well as the Juvenile Justice System Ordinance (JJSO), 2000, the Universal Declaration of Human Rights (UDHR), 1948, the Covenant on Civil and Political Rights, 1966, and the Convention on the Rights of the Child (CRC), 1989.
This position paper reviews the status of the FCR, in the light of human and child rights organizations’ recommendation that the FCR should be repealed forthwith, since the present government announced in 2008 and 2009 that it will either be repealed or amended. It also highlights the contradictions between the FCR with child rights and human rights, and especially how the FCR are a direct contravention of the Constitution of Pakistan, the JJSO, UDHR, and CRC.
Overview
FATA comprises seven independent tribal agencies and six smaller frontier regions in the northwest of Pakistan. The agencies include Bajaur, Mohmand, Khyber, Orakzai, Kurram, North Waziristan and South Waziristan. These agencies are further divided into Assistant Political Agencies, subdivisions and tehsils. The six frontier regions are comprised of Bannu, Dera Ismail Khan, Kohat, Laki Marwat, Peshwar, and Tank. These regions are also called settled areas and the District Coordination Officers are responsible for the administration of these regions. Their headquarters are known as the FATA Secretariat in Peshawar which reports to the Governor of KP.
According to Article 248 (3) of the Constitution of Pakistan, FATA comes directly under the control of the President of Pakistan. However, the federal government is given partial control over the governance of the area through the Governor of Khyber Pakhtunkhwa (KP) province (formerly the North West Frontier Province) who is nominated by the President of Pakistan.
Ever since Pakistan allied with the United States in the ‘War on Terror’, much of FATA is effectively controlled by groups loosely known as the ‘Pakistani Taliban’, although the Pakistan army is waging a counter-insurgency war in the area to assist the state to regain control over the region.3
FATA shares a boundary with Khyber Pakhtunkhwa and the Punjab in the east and Balochistan in the south, whereas in the west is the Durand Line beyond which lies Afghanistan. According to the census of 1998, the estimated population of the area was 3,176,000. About 4 per cent of the total population was living in towns and 96 per cent lived in the rural areas at that time. The area is mainly populated by Pashtun tribes.
The people of FATA have no separate legislative assembly but they are represented in the National Assembly of Pakistan by 12 independent elected Members of the National Assembly and in the Senate by eight senators who are elected by the 12 MNAs.
The economy is chiefly pastoral due to the tribal nature of the society. Being a mountainous area, only ten per cent of the land is arable. The majority of the rural population depends on forestry, livestock, and crops (rice, wheat, maize). However, the parallel informal economy based on the trafficking of opium sustains a large percentage of the people of this area. The level of illiteracy is very high with only 40 per cent of men and 3 per cent of women able to read and write (CAMP 2009)4 . The total literacy rate was 17.42 per cent in the census of 1998 (Leghari 2009)5.
FATA lacks in almost every denominator of civil society; there are no banks (in the modern sense of the term) in the area; there is no adequate infrastructure to support sustainable means of transportation; no estimable developments have taken place in the fields of education, health, energy, or the agriculture sector over the last sixty-three years since Independence. There are only 33 hospitals and 301 dispensaries which cater to the entire region and which are, obviously, unable to meet the basic health needs of the population, (Leghari 2009).
The Frontier Crimes Regulations--Genesis
As mentioned in the Introduction, the FCR was born of the need of the British, at the height of their empire, to keep the various tribes that populated the area known as FATA, as a buffer between British India on the one hand, and Afghanistan and the Central Asian states on the other, where Russian encroachment was feared. The FCR encompassed “substantive and procedural law relating to criminal and civil matters” (Amnesty International 2008:………), and the intention was to establish the writ of the colonizers’ power which aimed to protect the interests of British India. The FCR “basically explains the relationship between the state and the tribes on the one hand through an indirect form of governance; and on the other lays down procedure for dealing with inter-tribal matters” (Khan 2008:….).6 The FCR, also known as ‘jackpot justice’7 were designed to tackle bad elements and pacify the angry tribes in the tribal areas on the Afghan border (Bangash 1996).8 In order to keep the tribal leaders happy, some of the customs and traditions prevailing in the region were retained in the FCR. (SPARC 2004, Hussain 2005 & Khan 2006)9 However, “such customs and traditions were twisted to suit the government plan of securing convictions” (Hussain 2005:……)
Before 1901, the colonial government had divided the tribal areas into six Frontier districts and regulated these under the civil and criminal laws applicable to the whole of British India. However, the tribes rebelled against these laws and to pacify them, the colonial machinery formulated the FCR.
The FCR was enacted as a special law in 1871 and new provisions and offences were subsequently added in due course (PLD 1958: 7310 & Hussain 2005)11 . When the law was amended in 1887, a seven-year sentence was introduced for a particular crime whereas previously the offence had only earned a fine. The law was enforced against both Pathans and the Baloch (Alaiwah 2008).12 In the amended FCR, Pushtun tribes were allowed to govern their society according to their own laws and customs. The tribal areas were given a semi-autonomous status subject to their compliance to colonial rule. The tribal elders (maliks) were made bound to “keep the border passes open for trade and strategic purposes in return for allowances and subsidies they could distribute among their tribes. Nevertheless, the tribal areas showed some of the strongest anti-British resistance on the subcontinent during British rule” (Rakisits 2008). After the ‘Tribal Wars’ in 1897-98, when the frontier tribesmen continued to attack the British Indian Army and criminal activities were on the rise, a Close Border Policy was adopted and implemented whereby a number of tribal agencies were established (including Mianwal) under the FCR of 1901, which were enclosed by a chain of posts and cantonments where the Pakhtun tribes were allowed to govern according to their own laws and customs (PLD 1958: 73 & Rakisits 2008). Much later, in 1944, questions had arisen about its application, and in 1946, validation of the FCR was challenged in the High Court of Lahore (Alaiwah 2008).13 Application of the FCR was also effectively challenged in Mianwali district and the noxious laws were removed from the area (PLD 1950: 221).
The FCR of 1901 was declared by notification in the Gazette (PLD 1950: 221) and contained the same rules as previous FCR’s as well as additional provisions. These regulations were enforced against the Pashtuns and the Baloch.
In 1947, Pakistan allowed the tribal territories to retain the separate administrative and legal structure that was coded into the FCR. The law was not changed in an independent Pakistan (Amnesty International 2008). The new setup upheld the Pakhtoon tribal justice system based on the Jirga (council of elders) to which the head of the various Agencies (the political agent in each case) used to refer civil and criminal affairs. Based on the arguments from opponent parties, the Jirga gave a verdict about the guilt or innocence of either party. Such verdicts were based purely on tribal rewaj (custom), rather than religion (Rakisits 2008).
The Provisional Constitution Order of Pakistan 1947 had no special provisions for the tribal and special areas. However, “[I]n Chapter 2 of the Constitution of 1956, in the territorial clause on Pakistan, the Tribal Areas and Frontier Regions were mentioned along with … [KP]’. In the Constitution of 1962, higher judiciary had jurisdiction over Tribal Areas/Frontier Regions but later on an amendment was made in Article 223 (5) to erase the jurisdiction of higher judiciary over the Tribal Areas. The Constitution of 1973, for the first time, made a territorial and geographical division of the Tribal Areas by bifurcating them into Provincially Administered Tribal Areas (PATA) and Federally Administered Tribal Areas (FATA) (HRCP 2005). 14
The FCR was amended once again in 1954, but interestingly, in April 1962, when the law was extended to Shahdadkot (in district Larkana), Sukkur, Sargodha, and Shikarpur, it was withdrawn immediately (Alaiwah 2008). 15
Before 1970, FATA had no regular court procedure. In 1970, jirga (informal assembly of elders) type court procedures were initiated, but they were not well-structured. Until 1978, Assistant Political Agents could not exercise powers under the FCR but later they started wielding powers (HRCP 2005).
FCR and the Constitution of Pakistan
The major fault lies in the “step-motherly treatment of the Federation towards this tribal region”16 through the Constitution of Pakistan, 1973, which gives space to the FCR to violate the fundamental rights of citizens of Pakistan living in FATA. In Article 1 of the Constitution, FATA is part of Pakistan and in Article 247, are described the manners and methods by which the area should be administered by which the executive authority of the Federation is extended to FATA, and the Governor, on the direction of the President of Pakistan, executes business. “Under Article 247 (3) of the Constitution of 1973, no act of Parliament is applicable to FATA or any part thereof unless the President of Pakistan so directs. The Governor of [KP] Province acts as the “agent” to the President of Pakistan”17 but under Article 247 (7), tribal areas are excluded from the jurisdiction of the Supreme Court of Pakistan and High Court of KP. Courts cannot exercise any power in the jurisdiction of FATA (SPARC 2004). Under Article 199 (14) and 184 (3) (5), the High Courts and the Supreme Court can ensure the enforcement of fundamental human rights in the whole of Pakistan, but since FATA is excluded from the Courts under Article 247, enforcement of fundamental rights is not foreseen (Hussain 2005). Under Article 2-A and 175 of the Constitution, an independent judiciary has to be established in the area but there is no single such court in FATA (SPARC 2004). Neither the Pakistan Penal Code 1860, nor the Code of Criminal Procedure applies to FATA (Amnesty International 2008). It is “[t]he systematic denial of the legal and judicial reforms in the Federally Administered Tribal Areas (FATA), indeed, an institutionalized Taliban style of justice in the FATA region and the absence of the edifice of the State structure or governance created the necessary conditions” (AITPN 2006). 18
The Political Agent or the Assistant Political Agents of the various Agencies have been functioning beyond the territorial jurisdiction of the High Court of Peshawar. They are “both the judge and the jury”.19 The political agent, the most powerful person in the agency, is selected from the Civil Service of Pakistan, and he is responsible for managing the administration in each agency of FATA, and is accountable to the KP Governor (Rana 2009).20 The Agent “assigns the jirga, supervises over trials and awards punishments without even the technical possibility of revision by a regular court of law…grants tribal elders the status of malik (with the consent of the governor) on the basis of male inheritance. But the [agent]… can also arbitrarily withdraw, suspend or cancel a malik’s status if he deems the individual is not serving the interests of the state. Maliks receive financial privileges from the administration in line with their tribe’s cooperation in suppressing crime, maintaining social peace, and in general supporting the government. The state relies on the services and collaboration of these maliks to administer FATA. Like the British before them, the Pakistan state rewards the loyal Maliks with a special status, financial benefits and other official rewards” (Rakisits 2008). 21
The major fault lies with the provisions of the FCR which do not correspond to the basic norms of justice (Bangash 1996). It is considered a black law having draconian provisions which deny the fundamental rights of the tribal people (Rana 2009). These constitutional rights are: the right to be treated in accordance with the law (Article 4), security of persons (Article 9), safeguards as to arrest and detention (Article 10), protection against double jeopardy, self-incrimination (Article 13), inviolability of the dignity of man, prohibition of torture for extracting evidence (Article 14), protection of property rights (Article 24), and equality of citizens (Article 25) (SPARC 2004).
Grave injustice is often done to hapless citizens because members of the Jirgas are not neutral and vote in favour of members of their own clans or sub clans. There are no checks and balances with the political agent being the executive head, as well as the magistrate, Sessions judge, and revenue magistrate. With most of the powers concentrated in a single office, the justice system is invariably taken for granted (Bangash 1996). The decisions of Jirgas “are obnoxious to all recognised modern principles governing the dispensation of justice”. (PLD 1954: 228) 22
One of the worst aberrations of the FCR is the collective punishment clause no. 21, which is imposed on anyone in the tribal area for a crime committed by his or her relative, spouse, or even a person from the same tribe and area (Amnesty International 2008).
Again, among the most damaging provisions in the FCR is the “seizure/confiscation of property and arrest and detention of an individual without due process, barring a person in the tribal areas from entering the settled districts”. (Rana 2009) This provision also falls under section 21 of the FCR mentioned above, which is known as ‘Collective Responsibility Clause’. Under this clause, if an offence is committed by one person, his or her whole family/tribe is made responsible for the act and can also be arrested and their properties seized. Moreover, the FCR says that arrested persons will not be permitted to contact the Government of Pakistan and nobody from Pakistan may contact or trade with these people.
In section 6 of the FCR, sentence of whipping is allowed which has been abolished in Pakistan through the Abolition of the Punishment of Whipping Act 1996.
Under section 23 of the FCR, all the members of a village are considered responsible for a murder if a dead body is found in their village. Under section 22 and 23, fines are imposed on the entire community for the crimes of a single person. In section 56, if fines are not paid by relatives, then the property of an offender is sold to realize the amount due.
Under the FCR, publishing of a newspaper, journal or any other publication is not allowed (Shinwari 2005). 23
The only positive provision in the FCR, in the view of human rights organizations, is that it does not provide for the death penalty (Amnesty International 2008: 5) whereas sentence of death penalty is awarded by the courts throughout Pakistan.
From time to time, the FCR has been challenged in the courts on the grounds that the regulations negate fundamental human rights. In most cases judgments have been passed against the FCR, and even against the provisions of the Constitution which stop High Courts and the Supreme Court from intervening in the judicial and administrative affairs of FATA. In 1975, the Supreme Court of Pakistan in the case of Chaudhry Manzoor Elahi versus Federation of Pakistan said that the High Courts are authorized to intervene in the tribal areas. In 1979, the Balochistan High Court termed many provisions of the FCR as un-Islamic.24 On 29 July 2002, the Lahore High Court termed the FCR as void law after the Balochistan High Court's judgment of 1979, and therefore, detention under the FCR was unlawful. In the same order, the Lahore High Court directed the authorities to release Qimat Gul who had been detained for more than two years without any right of defence. Qimat Gul was detained under the FCR because he protested against the illegal occupation of his land by some influential person of the area.25
In another case, in 2006, Ijaz Khan had filed petition number 2038 of 2005 against his warrant of arrest issued by Bara Khyber Agency inside the constitutional jurisdiction of the High Court of Peshawar, and had termed his warrant of arrest as being against the provisions of Chapter-I, Part-II of the Constitution in which the liberty, security, dignity and freedom of a person has been fully secured and guaranteed, and also under the Charter of Human Rights. The High Court had declared the arrest of the petitioner illegal, without lawful authority, and without jurisdiction (PLD 2006).26 This is not the only case that sought help from the courts; many such people have been arrested in the constitutional jurisdictions of the High Court of Peshawar, and have been sentenced, although their sentences have been challenged in the High Court Peshawar.
Amending or repealing the FCR
Civil society has demanded for some time that the FCR should either be repealed or be overhauled extensively so that constitutional as well as international human rights guarantees can be enjoyed by the people of FATA. Some inhabitants from FATA have advocated repeal of the law, while others desire that it should be amended as per international standards, but the process of its implementation should be slow (Amnesty International 2008) so that the system may not be disrupted abruptly. In fact, it is hoped and expected that the Parliamentary Committee on Constitutional Reforms will amend Article 247 of the Constitution which deprives parliamentarians from intervening in the affairs of FATA or from any legislation connected to FATA. Thus, senators and MNAs from FATA can involve themselves in legislation related to the whole of Pakistan with the exclusion of their home region, FATA.
In 2009, under the chairmanship of Senator Raza Rabbani, a Parliamentary Committee on Constitutional Reform was constituted. The committee, after reviewing Article 247 of the Constitution of Pakistan, recommended to the Federal Government of Pakistan that, “the Government should take immediate steps to implement the reforms amended by the president in respect of FATA, particularly about major changes in the FCR and providing opportunities to the National Political Parties to organize their activities in that area. The Government may also associate other parties who are stakeholders in the on-going consultations regarding administration of Tribal Areas” (2009: 19).27
In 2004, grave violations under the FCR surfaced when SPARC visited jails and saw innocent women and children languishing in prison. Immediately, on 19 November 2004, SPARC, along with other organizations, held a press conference at the Peshawar Press Club and organized a protest march from the Press Club to the Governor House against this tyranny. However, no one from the Governor House came to meet with the protestors to address their complaints and resolve the issue. On 10 December 2004, in a seminar organized by the Regional Directorate of the Ministry of Law, and Human Rights Organizations, SPARC brought the matter to the notice of the Governor of KP. However, the Governor did not accept that children had been detained under the FCR or that human rights violations were taking place under the FCR. In fact, in 2004, Senator Farhatullah Babar (PPP-[KP]) had taken serious notice of grave child and human rights violations in FATA and initiated debate in the Senate. Besides other faults in the law, the Senate pointed out that Pakistan was the only country in the world where entire villages and houses were knocked down on the pretext of collective punishment under the FCR (SPARC 2004).
On 24 November 2004, Dawn28 reported that Senator Farhatullah Babar produced a clipping in a meeting of the Human Rights Committee of the Senate about a three-year-old girl sentenced under the FCR. However, the FATA Secretary of Security denied the report and dismissed it as fictitious. The secretary said that “A political agent will be out of his mind to sentence three-year-olds under the FCR.” Consequently, the matter was not followed up. However, the Human Rights Committee expressed concern that the report may be true and demanded that such provisions of the FCR which permitted such actions should be abolished.
Later, on 1 December 2004, Dawn29 reported that the Law Minister had assured the Senate that the government, through consultations with tribal leaders, was working to amend the FCR.
In 2005, two committees were constituted on the FCR. 1) The Senate of Pakistan’s Standing Committee on Human Rights had constituted a sub-committee on the FCR which was comprised of Senator Farhatullah Baber, Senator Hamidullah and Senator Dr Saad. In August 2005, the sub-committee had submitted their final report along with recommendations to the main committee in which amendments were proposed in the FCR. (Daily Times 2005)30 The report of the subcommittee has not been made public yet.
2) The Governor KP also constituted a review committee under the Chairmanship of former Justice Supreme Court, Mian Mohammad Ajmal which submitted its report in 2006. The committee was asked to recommend necessary amendments and modifications in certain clauses of the law. In a workshop organized by CAMP in 2009, Retired Mian Ajmal said that the Committee has proposed many changes including that the name of the law should be changed. Besides a decrease in the powers of the Political Agent proposed by the committee, it was suggested that judicial powers should be “divided between the jirga and FATA Tribunal that will be on the pattern of Sessions courts and will be formed of members eligible to preside over high courts or shariat courts. Obsolete laws and sections have been completely removed and people [will] now have a right to ask for bail”. The Committee investigated the practice of the law in FATA in depth but since submission of its report in 2006, the state has not taken any steps to implement it as yet. Neither has the report itself been made public to date.
In 2009, under the chairmanship of Senator Raza Rabbani, a Parliamentary Committee on Constitutional Reform was constituted. The committee, after reviewing Article 247 of the Constitution of Pakistan, recommended to the Federal Government of Pakistan that, “the Government should take immediate steps to implement the reforms amended by the president in respect of FATA, particularly about major changes in the FCR and providing opportunities to the national political parties to organize their activities in that area. The Government may also associate other parties who are stakeholders in the on-going consultations regarding administration of the Tribal Areas” (2009: 19). 31
On 8 April 2010, the passing of the Eighteenth Constitutional Amendment was made public, but the government did not amend Article 247 which would have allowed parliamentarians to legislate and the Courts of Pakistan to exercise justice for the people of FATA.
FCR, the JJSO and children and human rights
According to the Convention on the Rights of the Child (CRC), under Section 21 and 40, a child shall not be deprived of his or her liberty unlawfully or arbitrarily and if a child is arrested then his or her detention or imprisonment shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. The child should be given a fair trial/hearing and be represented by legal counsel of his or her choice, and have the right of appeal against the conviction and sentence. However, all such rights are usurped by the FCR. The FCR also contradicts Article 8, 9, and 10 of the UDHR. FCR also violates provisions of the international covenant on civil and political rights, 1966.
In view of Pakistan’s international obligations in respect of various agreements ratified by the government of Pakistan, such as the CRC, and in order to rectify some of the oppressive laws imposed on the children of FATA through the FCR, on 22 November 2004, the Juvenile Justice System Rules KP were extended to FATA. However, beyond mere words on paper, the government made no infrastructural arrangements which are essential to the implementation of the law. Six years down the line, FATA does not have juvenile courts, a probation system, borstal arrangements, nor any system in place to protect the rights of juveniles. Rather, grave abuses of child rights have been witnessed in FATA even after the JJSO were extended to the region. (Amnesty International 2008)
The FCR applies to all residents of FATA irrespective of age or sex. Thus, these black laws are applied across the board, on young or old men and women, and children as young as two or three years old, in fact, even on infants. Women and girls are considered a commodity and their right to own or inherit property is not recognized under the FCR. Minor girls and women are given in ‘Badal’ by members of one clan or tribe to another in settlement of rivalries. The FCR, in fact, negates all the rights and guarantees granted to women in Islam, and by the laws of Pakistan. (Bibi 2005)32 The UN Committee on the Rights of the Child (CRC), in its concluding observations on Pakistan’s 2008 reports has expressed grave concern that the FCR is still in force in FATA.
According to SPARC’s annual report 2009, in December 2009, it was reported that 14 children were detained under the FCR. In 2004, the annual report of SPARC had reported that about 70 children had been detained under the same law. None of these children were being treated, or tried, under the set procedures of the JJSO.
In 2004, during a visit to Haripur Central Prison, the SPARC team met with 21 women and children who were members of a fugitive’s family. The women and children had been convicted under section 40 of the FCR. They were arrested after the wanted man had escaped arrest. The government, however, claimed that these women and children were, in fact, being kept in protective custody in order to shield them from any offence done against them by the people of Lakki Marwat whom the fugitive had allegedly enraged. In 2005, SPARC learnt that there were more than 25 women, children, and juveniles in the Central Prison, Dera Ismail Khan, who belonged to the Betani tribe, who had been arrested in lieu of the actual fugitive, who was himself a member of the same tribe. On the same pretext, an old lady was imprisoned under the FCR along with nine of her relatives including a one and a half year old girl. The elderly lady informed SPARC that the police of Lakki Marwat and Bannu had raided their home in the presence of the Assistant Political Agent of the Lakki Marwat Region and they had been arrested simply because they happened to be related to a notorious criminal (SPARC 2005).
In the same year, a journalist,33 Amir Mohammad Khan, visited the central prison, Haripur, to verify claims of civil society that under section 40 of the FCR the government has sentenced minor children on the pretext of being relatives of an alleged offender. He narrated the ordeal that “two year old Zarmina sits in her mother’s lap on the veranda in front of the barrack reserved for women prisoners at the Central Prison, Haripur. She begins to cry when she hears the sobs of two children nearby, seven-year-old Iran Khan and his eight-year-old brother Tahir Khan. Tears roll down the children’s cheeks as a sympathetic visitor to the jail asks them about their living conditions in the prison.” Unfortunately, there are more than 15 children, including girls and boys, who are less than ten years old and who are behind bars for crimes that allegedly have been committed by their fathers or other extended family members and in some cases even by someone from their tribe. (SPARC 2004).These children were sentenced to three years imprisonment under the collective responsibility clause of the FCR by the Assistant Political Agent North Waziristan. SPARC (2004) wrote in its report that agencies responsible for law and order in the region had failed to perform their duties therefore they were targeting innocent children and women to bargain with outlaws. “What is the difference between an outlaw kidnapping innocent people for ransom and the governmental agencies kidnapping women and children for their release?” (SPARC 2004) It was all up to the political agent who has the power to either release such innocent women and children or even award them a further three years imprisonment if the fugitive is not arrested during their internment.
There is a clear disparity between the FCR and United Nations standards and guidelines. In this system, there are no chances of a fair trial because the judiciary is not separate from the executive, which according to Article 37, and 40 of the UNCRC, is an open violation of children’s human and legal rights.
Arresting innocent children under the collective responsibility clause of the FCR is against Article 9 of the Constitution of Pakistan which states, “No person shall be deprived of life or liberty save in accordance with the law.” However, the collective responsibility clause of the FCR gives the administration the power to arrest and imprison all or any members of a tribe and confiscate all the property belonging to any of them.
Every child has the right to be presumed innocent until proven guilty, whereas under the FCR system, presumption of innocence is not considered. If a child is a relative of an offender therefore he/she is considered an offender too. Therefore, all arrested and detained children under the collective responsibility clause 21 are considered guilty before their trial starts.
HRCP Reports
In 2004, HRCP had called a consultative meeting on the FCR in Khyber, Mohmand and Kurram Agencies of FATA in which the following issues and grey areas of the FCR were pointed out (HCRP 2005):
• Life under the FCR is equal to slavery. No progressive activity is allowed by the political agent;
• The tribesmen cannot get loans from banks which is a major hurdle in economic activities and industrial growth;
• No agricultural improvement has been introduced into the area therefore the people have no alternative to the traditional poppy and bhang trade;
• Actions under the FCR cannot be challenged in the High Court;
• Accountability of the political agent and other officials is not allowed under the FCR and embezzlement of Kotal funds is also reported;
• The Political Agent and Assistant Political Agents are using FCR as a weapon and most of their activities are illegal; political agents have total powers as “power corrupts and absolute power corrupts absolutely”. Political Agents are abusing their powers for personal gain.
• The tribal system under the FCR does not meet the needs of the modern age. It is an outdated system. FATA is isolated from the international community;
• FCR should not be totally abolished but amended to stop its misuse by opportunists;
• Under the law, the political agent gives special remissions to those whom he personally favours and is thus not impartial in his duties;
• The Collective Responsibility clause should be amended and only Turbor and Tawan Sharik (a person who shares losses with others) may be considered under this clause;
• Houses are demolished against an offence of an individual and families are removed from areas which is an uncivilized activity;
• The Jirga system is corrupt and partial;
• It is common that jirga members sign on a blank paper and afterwards rai (decision) is written by the political administration according to its wishes;
• The original tribal system has lost its genuineness; in the given system social justice has become impossible and everybody is trying to win the favour of the political agent. Tribesmen have no freedom under the law;
• Consultations are held at private places (hujras) which creates difficulties for both parties (victims and offenders);
• “FATA is in the clutches of a triangle of civil bureaucracy, military bureaucracy and ‘babucracy’”;
• The Political Muharrir is often an illiterate person. He is not capable of writing a report. Though the FCR does not give any power to the Muharrir no one can speak with him for his or her rights;
• Even the ‘Babu’, Steno, Tehsildar etc. are given powers to effect arrests and detentions;
• Majority of problems are caused by tribesmen’s misuse of their discretion as provided for under riwaj. The Maliks are greedy and corrupt. They have caused most of the troubles;
• Political Muharrir and Babu of Katchery are corrupt and are very harsh on the people;
• “Territorial responsibility is a good provision but often thieves are sitting with the Tehsildar”;
• Riwaj cannot address the problems of the modern era. The rules of transport, for instance, have nothing to do with riwaj but are associated with riwaj.
• The philosophy of justice requires the separation of the judiciary from the administration but these are one under the FCR;
• Under the FCR people are oppressed and have no democratic rights;
• All powers are concentrated in one person, the political agent;
• The major question is that if the FCR is abolished, what law will be enforced and implemented in its place?
• There is a difference between the tribal system and the code of the Pashtun living in settled districts:
o The tribal economy is focused on basic necessities like food, employment and health while Districts’ focus on profits and luxury;
o The social set-up of tribes requires consistency and strength while Districts need sophistication, fashion and style;
o In religion, tribal life stresses on the fundamentals of religion while Districts focus on ceremonies and functions associated with religion in addition to the fundamental values. For example, tribal people do not have Eid-i- milad processions;
• Agency Council elections are not held in a proper format. A lot of enmity is created among tribesmen as one has to say openly that he will vote for such a person and not for such a person;
• The majority of people do not know under what provision of the FCR they are arrested, released, or released on bail;
• People in FATA do not know about the FCR and its negative impact on their lives and society;
Conclusion
This paper concludes that overall there is inadequate protection of human rights, and in some cases great abuse of human rights and child rights in FATA under the FCR. The Constitutional guarantees of the people of FATA as citizens of Pakistan cannot be enforced because the higher judiciary has been stopped from entertaining any appeal or request from the people of the region. Similarly, the right to challenge or appeal against the decision of the political agent is curtailed in section 60 of the FCR. An alleged offender is unable to seek relief from any other Pakistani courts. Notwithstanding, the Higher Courts of Pakistan have passed judgments which have intervened in those constitutional matters in which innocent men, women, and children have been victimized and abused under the FCR. There is also inadequate recording of the horrors of the outdated law on children and women.
It is also clear from reports prepared by former Justice Mian Ajmal, HRCP, etc.that the social fabric of Pashtun society in FATA has not given space to human rights values. Even minor children and infants, who have not committed any offence, are not spared, as they are arrested and sentenced simply because they are related to an alleged offender.
Thus far, the Constitutional Committee headed by Senator Raza Rabbani, has failed to amend Article 247 of the Constitution which would empower the National Assembly to formulate news laws based on the principles of human rights for the people of FATA.
It is of the essence, therefore, that the people of FATA themselves mount pressure on the government to exercise the required political will and commitment, which is all that is needed to free the tribal areas from the shackles of the FCR. It is hoped the current government will take up this issue on a priority basis. It is suggested that another constitutional amendment be passed which gives the power to amend and propose laws for FATA to the National Assembly of Pakistan. The National Assembly should initially and immediately remove the unlawful and unconstitutional provisions of the FCR. At the same time, the judiciary should be separated from the administration in FATA so that trials of juveniles and others could be executed according to the juvenile justice system and human rights standards.
Recommendations
• The jurisdiction of the Supreme Court, Parliament and High Courts should be extended to FATA by amending Article 247 of the Constitution. Lower courts should be established in FATA, i.e. Session Courts, District Courts, as per the law of Pakistan.
• Either FATA should have its own Chief Minister or the CM KP may have authority to exercise power over the region. The role of Governor must be reduced as in the four provinces of Pakistan. The prime minister of Pakistan should have authority to execute business in FATA.
• The FCR should be repealed and FATA should be governed under the Constitution of Pakistan and international norms of justice, including safeguards for fundamental human rights, such as freedom of expression and association, rule of law, access to justice, and sanctity of life and property, etc. for residents of FATA.
• The laws of Pakistan should be made applicable to the whole of FATA, in their entirety, including the JJSO and the judiciary should be separate from the administration.
• Though in a number of cases, the Supreme Court and High Courts have exercised jurisdictional powers in FATA and have demanded that the FCR be repealed, the High Courts and Supreme Court of Pakistan should be extended to the tribal areas. Each of the seven agencies should have their own courts, like district courts in settled areas of Pakistan, which serve as the court of first instance for the settlement of disputes on the basis of civil law and criminal law.
• A special FATA Bench of the Peshawar High Court should be constituted to hear appeals of the people. Questions of law and interpretation of the Constitution would be dealt with by the Supreme Court of Pakistan.
• In each agency of FATA, at least one parole officer and one probation officer should be appointed for legal cases pertaining to children.
• An educated and trained police force should be established in FATA, who would be equipped to deal with both victims and offenders in keeping with basic norms of human rights.
• Either FATA may have its own Assembly or the region should be provided seats in the provincial Assembly of KP province as well as have representation in the NA and Senate.
• Employment generation schemes must be introduced so that the population, most especially local youth, may not become prey to obscurantist forces such as the Taliban, who already seek to impose a tyrannical rule over the area.
• Extensive investment should be made in education, health, and transport in order to stabilize the economy of the region and assure the good health and well being of the people of FATA.
Mr. Abdullah Khoso is research fellow, his blog is abdulhumanrights.blogspot.com and his email address is abdullahkhoso@hotmail.com
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1 Siddique, A. (200), Pakistan: New Government Announces Major Reforms in Tribal Areas accessed on 12th March 2010 at http://www.rferl.org/content/article/1079732.html
2 Sahir (2009) ‘I have abolished 100 years old FCR in FATA: Zardari’. News Article accessed at http://www.allvoices.com/contributed-news/3913423-i-have-abolished-100-years-old-fcr-in-fata-zardari
3 http://en.wikipedia.org/wiki/Tehrik-i-Taliban_Pakistan#cite_note-abbash-1
4 CAMP (2009), Communities for Change: The Constitutional Status of the FATA and the Way Forward. A report of the consultative workshop accessed at www.camp.org.pk/pdfs/Fata%20Dialogue%201.pdf
5 Faryal Leghari (2009) Perspectives on Terrorism - Dealing with FATA: Strategic Shortfalls and Recommendations. In A journal of terrorism research initiatives, volume II, Issue 10 at http://www.terrorismanalysts.com/pt/index.php?option=com_rokzine&view=article&id=61
6 Ismail Khan (2008), Implication of repealing FCR at http://www.dawn.com/2008/03/30/top4.htm
7 The term used in an article ‘FATA: The dark region of Pakistan’ (2006) published with Asian Indigenous & Tribal Peoples Network. Accessed at http://www.aitpn.org/IRQ/vol-II/Issue-02/issue06.htm
8 Bangash, Mumtaz A., “Administrative and Political Development of the Tribal Areas: A Focus on Khyber and Kurram”, Ph.D. Dissertation, Area Study Centre (Central Asia), University of Peshawar, 1996, as cited in “Pakistan’s Tribal Areas: Appeasing the Militants,” in International Crisis Group’s Asia Report, No 125, December, 11, 2006, p. 2.
9 Khan, M. I. (2006); FCR: A Draconian Law. In The State of Pakistan’s Children 2006; Society for the Protection of the Rights of the Child, Islamabad.
10 Rauf v. NWFP Government (PLD 1958 Pesh 73)
11 Hussain, F., Constitutional Status of FCR; paper read in seminar on “A bad law nobody can defend” which was organized by Human Rights Commission of Pakistan. 2005: pp 10; Qasim Karim Printers, Lahore
12 Alaiwah Word Press (2008), Evolution of the FCR: Frontier Crime Regulations. Accessed on 14th Marach 2010 at http://alaiwah.wordpress.com/2008/11/28/evolution-of-the-fcr-frontier-crimes-regulation/
13 Alaiwah Word Press (2008), Evolution of the FCR: Frontier Crime Regulations. Accessed on 14th March 2010 at http://alaiwah.wordpress.com/2008/11/28/evolution-of-the-fcr-frontier-crimes-regulation/
14 "A bad law nobody can defend" which was organized by Human Rights Commission of Pakistan. 2005: Qasim Karim Printers, Lahore
15 Alaiwah Word Press (2008), Evolution of the FCR: Frontier Crime Regulations. Accessed on 14th March 2010 at http://alaiwah.wordpress.com/2008/11/28/evolution-of-the-fcr-frontier-crimes-regulation/
16 FATA: The dark region of Pakistan’ (2006) published with Asian Indigenous & Tribal Peoples Network. Accessed at http://www.aitpn.org/IRQ/vol-II/Issue-02/issue06.htm
17 FATA: The dark region of Pakistan’ (2006) published with Asian Indigenous & Tribal Peoples Network. Accessed at http://www.aitpn.org/IRQ/vol-II/Issue-02/issue06.htm
18 'FATA: The dark region of Pakistan’ (2006) published with Asian Indigenous & Tribal Peoples Network. Accessed at http://www.aitpn.org/IRQ/vol-II/Issue-02/issue06.htm
19 FATA: The dark region of Pakistan’ (2006) published with Asian Indigenous & Tribal Peoples Network. Accessed at http://www.aitpn.org/IRQ/vol-II/Issue-02/issue06.htm
20 Rana, M.A. (2009) Taliban Insurgency in Pakistan: A Counterinsurgency Perspective. Accessed on March 2010 at san-pips.com/download.php?f=19.pdf
21 Rakisits, C. (2008), Pakistan’s Tribal Areas: A Critical No-Man’s Land; paper delivered at Webster University Forum, Geneva: Accessed on 3rd March 2010 at http://www.geopoliticalassessments.com/Pakistan_s_Tribal_Areas.pdf
22 Samundar versus The Crown. PLD 1954 Federal Court 228 accessed on 15th April 2010 at http://pakistanlawsite.com/LawOnline/law/casedescription.asp?casedes=1954FC22
23 Shinwari, I. (200), Press under the FCR; paper read in seminar on “A bad law nobody can defend” which was organized by Human Rights Commission of Pakistan. 2005: pp 10; Qasim Karim Printers, Lahore
24 Masood Rehman (2008), ‘FSC seeks NWFP govt’s comments on FCR petitions’. News article published with Dialy times and accessed at http://www.dailytimes.com.pk/default.asp?page=2008�130story_30-1-2008_pg7_13
25 FATA: The dark region of Pakistan’ (2006) published with Asian Indigenous & Tribal Peoples Network. Accessed at http://www.aitpn.org/IRQ/vol-II/Issue-02/issue06.htm
26 PLD 2006 Peshawar 180 accessed on 13th March 2010 at http://pakistanlawsite.com/LawOnline/law/SearchResultNotes.asp
27 The Committee Report.
28 Senator Farhatullah Babar, Child rights: lip service, Dawn, November 24, 2004.
29 Amending the FCRs, Dawn, December 01, 2004.
30 Daily Times (2005), ‘Senate body finalises amendments to FCR’. Accessed at http://www.dailytimes.com.pk/default.asp?page=story_28-8-2005_pg7_16
31 The Committee Report
32 Bibi, M (2005) ‘Women and children’s rights under the FCR; paper read in seminar on “A bad law nobody can defend” which was organized by Human Rights Commission of Pakistan.’ 2005: pp 10; Qasim Karim Printers, Lahore
33 After the visit, he had written an article titled ‘Justice Denied’ for Newsline published in its December 2004 Issue.
http://www.ahrchk.net/statements/mainfile.php/2010statements/2803/?print=yes
Monday, September 6, 2010
Sunday, August 22, 2010
Trying children for terror
By Abdullah Khoso
Saturday, 21 Aug, 2010
ARRESTING and trying children under the Anti-Terrorism Act 1997 (ATA) and in anti-terrorism courts (ATCs) is common in Pakistan. Children as young as 12 are being arrested and detained for alleged offences under the act.
Since the promulgation of the Juvenile Justice System Ordinance 2000 (JJSO), a number of children have been tried by the ATCs. Currently, there are over 15 juvenile offenders in the Borstal Institute and Juvenile Jail Faisalabad, who have been kept in solitary confinement under the orders of the anti-terrorism courts in Faisalabad and Multan.
One of the juveniles at the BI&JJ Faisalabad has been sentenced to 492 years in jail by the ATC in Multan. These children are sentenced to rigorous imprisonment although the latter and keeping children in solitary confinement is against the spirit of the JJSO and concept of reforming juvenile offenders.
Article 37 (b) of the United Nations Convention on the Rights of the Child says that the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only “as a measure of last resort and for the shortest appropriate period of time”.
The government’s recent move to introduce tougher provisions in the ATA may add to more sufferings for children who are already facing stringent provisions of the same act. However, bringing the act to parliament may provide an opportunity to legislators to consider the government’s commitment to comply with international obligations and amend the act as is desired by the international humanitarian community.
In 1997, Nawaz Sharif’s government introduced the ATA to counter terrorist acts in Pakistan. It allowed the law-enforcement agencies to bypass general legislation on grounds of necessity. The ATA was amended in 2005 to enhance both minimum and maximum punishments as well as to curtail the power of the courts in granting adjournments so that speedy trials could be ensured.
The amendment included some other provisions too. Unfortunately, the legislators did not consider excluding children and women from the harsh criminal-oriented treatment prescribed in the ATA.
The ATA has an overriding effect on the JJSO, which is the only child-friendly law in Pakistan. The JJSO abolishes the death sentence for those below 18 years and increases the age of the child up to 18 years which, in the provincial laws like the Sindh Children Act (1955) and Punjab Youthful Offenders Ordinance (1983), was 16 years.
The JJSO says that children should not be handcuffed, put in fetters or given any corporal punishment at any time while in custody, whereas children are periodically produced in regular courts and ATCs while handcuffed. There are also cases of keeping juvenile offenders in fetters.
One of the accused assassins of Benazir Bhutto is a child, who was declared a juvenile during his first appearance in court. After two years the Lahore High Court ordered that his fetters be removed.
If alleged juvenile offenders are charged under the offences listed in paragraph four of the third schedule of the act, they can face death or life imprisonment and will be treated no different than adults. Death and life imprisonment are mandatory sentences under the act. Listed offences in the act are abduction or kidnapping for ransom and use of firearms or explosives by any device which includes bomb blasts at any place of worship, whether or not anybody is hurt or damage is caused, or firing.
The JJSO provides for the establishment of exclusive juvenile courts to try cases of juvenile offenders regardless of the nature of the offence committed. There was confusion whether the juvenile courts or ATCs would try the cases of children since the ATA has overriding effect on the provisions of the JJSO. In February 2006, a full bench of the Sindh High Court in a judgment said that juveniles charged under the ATA would be tried by the ATCs and not by the juvenile courts, but protection not inconsistent with the act under the JJSO would be accorded while trying cases of children.
The court appeared to have relied on the intention of the legislators who had drafted and passed the ATA in which they were not willing to spare children.
Therefore, the court interpreted against the JJSO and allowed the ATCs to try cases of children.In legal systems across the world, the alleged offender is not tried in his/her absence in order to uphold the right to a fair trial. It is a prerequisite in criminal cases for the accused to be present at his/her trial so that he/she may observe the trial and challenge the witnesses.
Though there are similar provisions in the general criminal laws of Pakistan in which all evidence is to be taken in the presence of the accused, the ATA, under Section 19 (10) permits the ATC to run the trial of the accused in his/her absence so that the purpose of speedy justice can be attained.
The speedy trial in the absence of the accused and trying children along with adults in the ATCs are open violations of Pakistan’s commitments under the UNCRC and the International Covenant on Civil and Political Rights (ICCPR), 1966. Pakistan ratified the UNCRC in 1990 and the ICCPR in 2010.
This is the right time for legislators to ensure Pakistan’s compliance with international standards because the fate of children tried under the ATA is in their hands. It is hoped that parliament will consider ending the prosecution of children under anti-terrorism laws.
http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/editorial/trying-children-for-terror-180
Saturday, 21 Aug, 2010
ARRESTING and trying children under the Anti-Terrorism Act 1997 (ATA) and in anti-terrorism courts (ATCs) is common in Pakistan. Children as young as 12 are being arrested and detained for alleged offences under the act.
Since the promulgation of the Juvenile Justice System Ordinance 2000 (JJSO), a number of children have been tried by the ATCs. Currently, there are over 15 juvenile offenders in the Borstal Institute and Juvenile Jail Faisalabad, who have been kept in solitary confinement under the orders of the anti-terrorism courts in Faisalabad and Multan.
One of the juveniles at the BI&JJ Faisalabad has been sentenced to 492 years in jail by the ATC in Multan. These children are sentenced to rigorous imprisonment although the latter and keeping children in solitary confinement is against the spirit of the JJSO and concept of reforming juvenile offenders.
Article 37 (b) of the United Nations Convention on the Rights of the Child says that the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only “as a measure of last resort and for the shortest appropriate period of time”.
The government’s recent move to introduce tougher provisions in the ATA may add to more sufferings for children who are already facing stringent provisions of the same act. However, bringing the act to parliament may provide an opportunity to legislators to consider the government’s commitment to comply with international obligations and amend the act as is desired by the international humanitarian community.
In 1997, Nawaz Sharif’s government introduced the ATA to counter terrorist acts in Pakistan. It allowed the law-enforcement agencies to bypass general legislation on grounds of necessity. The ATA was amended in 2005 to enhance both minimum and maximum punishments as well as to curtail the power of the courts in granting adjournments so that speedy trials could be ensured.
The amendment included some other provisions too. Unfortunately, the legislators did not consider excluding children and women from the harsh criminal-oriented treatment prescribed in the ATA.
The ATA has an overriding effect on the JJSO, which is the only child-friendly law in Pakistan. The JJSO abolishes the death sentence for those below 18 years and increases the age of the child up to 18 years which, in the provincial laws like the Sindh Children Act (1955) and Punjab Youthful Offenders Ordinance (1983), was 16 years.
The JJSO says that children should not be handcuffed, put in fetters or given any corporal punishment at any time while in custody, whereas children are periodically produced in regular courts and ATCs while handcuffed. There are also cases of keeping juvenile offenders in fetters.
One of the accused assassins of Benazir Bhutto is a child, who was declared a juvenile during his first appearance in court. After two years the Lahore High Court ordered that his fetters be removed.
If alleged juvenile offenders are charged under the offences listed in paragraph four of the third schedule of the act, they can face death or life imprisonment and will be treated no different than adults. Death and life imprisonment are mandatory sentences under the act. Listed offences in the act are abduction or kidnapping for ransom and use of firearms or explosives by any device which includes bomb blasts at any place of worship, whether or not anybody is hurt or damage is caused, or firing.
The JJSO provides for the establishment of exclusive juvenile courts to try cases of juvenile offenders regardless of the nature of the offence committed. There was confusion whether the juvenile courts or ATCs would try the cases of children since the ATA has overriding effect on the provisions of the JJSO. In February 2006, a full bench of the Sindh High Court in a judgment said that juveniles charged under the ATA would be tried by the ATCs and not by the juvenile courts, but protection not inconsistent with the act under the JJSO would be accorded while trying cases of children.
The court appeared to have relied on the intention of the legislators who had drafted and passed the ATA in which they were not willing to spare children.
Therefore, the court interpreted against the JJSO and allowed the ATCs to try cases of children.In legal systems across the world, the alleged offender is not tried in his/her absence in order to uphold the right to a fair trial. It is a prerequisite in criminal cases for the accused to be present at his/her trial so that he/she may observe the trial and challenge the witnesses.
Though there are similar provisions in the general criminal laws of Pakistan in which all evidence is to be taken in the presence of the accused, the ATA, under Section 19 (10) permits the ATC to run the trial of the accused in his/her absence so that the purpose of speedy justice can be attained.
The speedy trial in the absence of the accused and trying children along with adults in the ATCs are open violations of Pakistan’s commitments under the UNCRC and the International Covenant on Civil and Political Rights (ICCPR), 1966. Pakistan ratified the UNCRC in 1990 and the ICCPR in 2010.
This is the right time for legislators to ensure Pakistan’s compliance with international standards because the fate of children tried under the ATA is in their hands. It is hoped that parliament will consider ending the prosecution of children under anti-terrorism laws.
http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/editorial/trying-children-for-terror-180
Monday, July 5, 2010
Juvenile detentions drop over 10 Juvenile detentions drop over 10 years
Saturday, July 03, 2010
By Our correspondent
Islamabad
The number of children kept in the nationwide jails has declined from over 5,000 in year 2000 to around 1,300 these days, says National Manager of Society for the Protection of the Right of the Child (SPARC) Juvenile Justice Abdullah Khoso.
While attributing this decline in juvenile detention figures to the promulgation of the Juvenile Justice System Ordinance (JJSO) in 2000, Khoso wants the government and judiciary to take effective measures to create awareness of this law among quarters concerned, establish juveniles courts, strengthen probation departments, allocate funds for free legal aid of children, and introduce mechanisms for the JJSO’s implementation in Fata.
“It is an achievable task, which can bring relief to thousands of children and help them become good and productive citizens,” Khoso said on Friday.
He said he was hopeful the number of jailed juveniles would further decline in the days ahead. “I believe the time is not too far when children will not be kept in cells at least not for petty crimes,” he said.
The SPARC Juvenile Justice manager said in December 2009, the country had 1,357 juvenile prisoners but the number dropped to 1,300 by the end of June 2010, adding there is also a decline in the number of children ending up in criminal justice system in petty offences. He, however, said 9,000 to 10,000 children are currently facing criminal litigation and appearing in courts.
He said over the last decade, police had been found torturing juvenile offenders at police stations, judicial officers giving physical remand of juveniles to police, and juveniles being awarded rigorous imprisonment, detained along with adults in police lockups and jails, and tried by anti-terrorist courts. He said the 2009 Judicial Policy focused on quick disposal of cases but unfortunately, didn’t check violations of rights of juvenile offenders before trials, during trials and in prisons.
Khoso regretted the country had no exclusive juvenile court, which led to the children’s trial along with adults. He also complained special procedures of the juvenile courts were not being followed, children being awarded death penalty under different laws including Anti-Terrorist Law, juveniles coming in conflict with the law being denied mandatory free legal aid by the state, and children facing bailable offences not being released on bail by police.
He also pointed out that there was no proper and viable mechanism to determine the age of the juvenile offender and that could ruin his/her life.
http://www.thenews.com.pk/print1.asp?id=248544
By Our correspondent
Islamabad
The number of children kept in the nationwide jails has declined from over 5,000 in year 2000 to around 1,300 these days, says National Manager of Society for the Protection of the Right of the Child (SPARC) Juvenile Justice Abdullah Khoso.
While attributing this decline in juvenile detention figures to the promulgation of the Juvenile Justice System Ordinance (JJSO) in 2000, Khoso wants the government and judiciary to take effective measures to create awareness of this law among quarters concerned, establish juveniles courts, strengthen probation departments, allocate funds for free legal aid of children, and introduce mechanisms for the JJSO’s implementation in Fata.
“It is an achievable task, which can bring relief to thousands of children and help them become good and productive citizens,” Khoso said on Friday.
He said he was hopeful the number of jailed juveniles would further decline in the days ahead. “I believe the time is not too far when children will not be kept in cells at least not for petty crimes,” he said.
The SPARC Juvenile Justice manager said in December 2009, the country had 1,357 juvenile prisoners but the number dropped to 1,300 by the end of June 2010, adding there is also a decline in the number of children ending up in criminal justice system in petty offences. He, however, said 9,000 to 10,000 children are currently facing criminal litigation and appearing in courts.
He said over the last decade, police had been found torturing juvenile offenders at police stations, judicial officers giving physical remand of juveniles to police, and juveniles being awarded rigorous imprisonment, detained along with adults in police lockups and jails, and tried by anti-terrorist courts. He said the 2009 Judicial Policy focused on quick disposal of cases but unfortunately, didn’t check violations of rights of juvenile offenders before trials, during trials and in prisons.
Khoso regretted the country had no exclusive juvenile court, which led to the children’s trial along with adults. He also complained special procedures of the juvenile courts were not being followed, children being awarded death penalty under different laws including Anti-Terrorist Law, juveniles coming in conflict with the law being denied mandatory free legal aid by the state, and children facing bailable offences not being released on bail by police.
He also pointed out that there was no proper and viable mechanism to determine the age of the juvenile offender and that could ruin his/her life.
http://www.thenews.com.pk/print1.asp?id=248544
Thursday, July 1, 2010
1,300 juveniles in jails: report
ISLAMABAD, July 1: Pakistani jails hold at least 1,300 juvenile prisoners and an up to 10,000 children are facing criminal litigation and appearing in courts.
These statistics come from a report launched by the Society for Protection of the Rights of the Child (Sparc) here Thursday on the 10th anniversary of the Juvenile Justice System Ordinance (JJSO).
According to the report, there were 1,357 juvenile prisoners in jails in December 2009, and the number dropped to 1,300 by the end June.
Speaking at the report launch, National Manager Juvenile Justice Abdullah Khoso said the noticeable decline in the number of juvenile prisoners was an achievement of the Juvenile Justice System Ordinance, which was promulgated in 2000 when the figure was anything over 5,000.
“Sparc commemorates 10 years of the JJSO in the hope that this figure will further decline and there will come a time when children will not be detained in cells, at least not for petty crimes,” Khoso noted.
Despite this small victory, the JJSO has failed the children who come in conflict with the law in many ways. The JJSO saw many upheavals but the jolt came when it was struck down by the Lahore High Court on December 6, 2004.
Sparc and the then attorney general filed a petition contesting the LHC’s action.
The Supreme Court has temporarily restored its status, yet it has not received any support from the implementing agencies, he added.
Over the decade, Khoso said police had tortured the juvenile offenders at police stations, judicial officers gave physical remand of juveniles to the police, and juveniles were awarded rigorous imprisonment and detained along with adults in police lockups and jails and were tried by the anti-terrorism courts.
Similarly, the government has not notified the JJSO rules in the Federally Administered Tribal Areas (Fata) and as such Frontier Crimes Regulation 1901 is haunting children as young as three years.
He said provinces had failed to strengthen reclamation and probation departments, which would help release children on probation and save them from being jailed.
http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/local/islamabad/1%2C300-juveniles-in-jails-report-270
These statistics come from a report launched by the Society for Protection of the Rights of the Child (Sparc) here Thursday on the 10th anniversary of the Juvenile Justice System Ordinance (JJSO).
According to the report, there were 1,357 juvenile prisoners in jails in December 2009, and the number dropped to 1,300 by the end June.
Speaking at the report launch, National Manager Juvenile Justice Abdullah Khoso said the noticeable decline in the number of juvenile prisoners was an achievement of the Juvenile Justice System Ordinance, which was promulgated in 2000 when the figure was anything over 5,000.
“Sparc commemorates 10 years of the JJSO in the hope that this figure will further decline and there will come a time when children will not be detained in cells, at least not for petty crimes,” Khoso noted.
Despite this small victory, the JJSO has failed the children who come in conflict with the law in many ways. The JJSO saw many upheavals but the jolt came when it was struck down by the Lahore High Court on December 6, 2004.
Sparc and the then attorney general filed a petition contesting the LHC’s action.
The Supreme Court has temporarily restored its status, yet it has not received any support from the implementing agencies, he added.
Over the decade, Khoso said police had tortured the juvenile offenders at police stations, judicial officers gave physical remand of juveniles to the police, and juveniles were awarded rigorous imprisonment and detained along with adults in police lockups and jails and were tried by the anti-terrorism courts.
Similarly, the government has not notified the JJSO rules in the Federally Administered Tribal Areas (Fata) and as such Frontier Crimes Regulation 1901 is haunting children as young as three years.
He said provinces had failed to strengthen reclamation and probation departments, which would help release children on probation and save them from being jailed.
http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/local/islamabad/1%2C300-juveniles-in-jails-report-270
Wednesday, June 23, 2010
Where Pakistani media stand between religious minority and majority?
By Abdullah Khoso
In Pakistan, on 6th October 2005, during morning prayers, two motorcyclists attacked on Ahmadi’s place of worship in which eight were killed and fourteen injured. This October incident was reported in local, national and international media. For the analysis I choose three news articles published with two Pakistani newspaper and one in Britain, the BBC.
In the late nineteenth century, Mirza Ahmad declared himself the Imam Mahdi, the promised Messiah and the prophet. Some people followed him and started to be known as Ahmadis or Qadianis in Muslim world. The majority of Muslim groups did not (still does not) accept these claims. In 1974, the Government of Pakistan declared the Ahmadis non-Muslims and heretical by amending the constitution of the country. In 1984, the Tuheen-e-Risalat (blasphemy) law was introduced against the Ahmadis. These laws are an outcome of the influence of the majority ruling Sunni-Muslim groups. According to the law in Pakistan, it is blasphemy if an Ahmadi calls him/herself a Muslim and terms his/her place of worship a mosque.
There is great variation between the Pakistani news reports and the BBC in using the identity of participants in their reports. The BBC, an outsider, (unlike the case BBC in Urdu which has a target audience in Pakistan), does not use the same terminology in referring to the victims (Ahmadis). That is an obvious mark of the ideological position of these outlets. The BBC has used each term five times: ‘sect’ and ‘mosque’. It overtly calls them a ‘sect’, not a separate entity from Islam but an offshoot of Islam, but with a minor difference; that is, Ahmadis believe in Murza Ghulam Ahmad as the Promised Messiah or the Imam. While the Pakistan newspapers published in Pakistan avoided using language, which could represent Ahmadis as Muslims and their places of worship as mosques. These newspapers see the Ahmadis in a similar way to the majority Sunni Muslim groups. The Pakistan reporters are very reluctant to call them a sect of Islam. These call them as Ahmadi Community and ‘Qadiani’.
The BBC represents both as two binary religious groups in Pakistan. Its language of representation is mild for the victims and hard for the attackers and their religion. Sunni Muslims are represented as the terrorists and so their religion, while the Ahmadis are placed in the position of victims. The BBC shows that the Ahmadis are a peaceful community and have not crossed the boundaries of society demarcated by society. Moreover, it portrays that Ahmadis are Muslims, and their place of worship is a mosque. It is apparent that the BBC is not bound by any Pakistani legal and socio-cultural restrictions therefore it portrays as per nature of the society where from it is regulated.
The intrinsic importance of the reports on the October 6, 2005 incident lies in the system of using fixed terminologies to set apart one entity (us) from another (others). The news reports in Pakistani media are formatted through specific sets of social and legal rules. In an anthropological sense, the response to risk is not atomized and individual, but rather a collective cultural issue. The news reports in Pakistan newspapers are a reflection of a social and ideological practice, or in other words a discourse that represents social facts within the frameworks of society. The formation of the language, according to given conditions and frameworks, supports the idea that the news reporting or formatting is greatly under the influence of current social and ideological processes. The neutrality of language use is at stake.
According to anthropological ‘bardic theory’, proposed by two renowned anthropological and media scholars, John Fiske and John Hartley’s (1978), the media represent the issues in line with a mutual understanding between the media and citizens. They share the same understanding and collectively construct the universe of discourse. Therefore it seems that the majority and the media are playing the similar roles in news reports they represent the minority, Ahmadis.
Obviously, the Pakistani media work like a ‘bard’ of the majority. In reality, the media do not perform the bardic role for whole society; in this bardic role there should be consensus on all sides, while here only the majority influences the contents of the news reports. Since the media show the same position which the majority projects. They work under the dominant social, cultural, religious and legal forces, so that the media cannot project their own views and position at a great length. What about the BBC, does it perform as bard of Pakistani society? The answer to it is, no.
In general, the religious belief and popular discourses in Pakistani society are relatively the most assertive factors in exposing Ahmadis to risk (life threats) and giving them a different identity. Both groups, in the Pakistani media, are represented as in binary opposition to each other. In this, the constitution of the country and other blasphemy laws create taboos for each individual in Pakistan whether he or she works in the media or somewhere else. The day-to-day these practices against the Ahmadis are an open threat to all who take chance of representing Ahmadis as Muslims. Therefore, in representing the Ahmadis, cultural, religious and legal aspects are dominant over the Pakistani media’s own choice in representing ‘the others’.
The fear that Ahmadis are polluting Islam and the Islamic state (this is a threat to Islam) is maintained through common knowledge available at the societal and cultural level; religious leaders, the constitution of the country and the blasphemy law (Tuheen-e-Risalat Law 1984) provide justification from the Quran and Sunah.
Thus, from an anthropological perspective, the formation of the perception of risk posed by ‘the others’ is collective (by majority Sunni) rather individual (minority). It is neither an issue of a few groups nor the problem of representing Ahmadis as ‘the others’ in the media, rather it is an issue of the common discourse of hatred against 'the others'.
In the context of religious ideology, however, both groups (Sunni radicals and Ahmadis) pose threat to each other. The radical Muslims demonstrate threats to their culture and belief through attacking places of worship (or killing Ahmadis). Ahmadis have no way to compensate for the matter except waiting for justice and raise their voice at different levels because of their weaker position in society, since justice is relatively not organized for them in the legal and social institutions of society.
In Pakistan, it is presumed that almost everyone knows about the Ahmadis and the reasons for their killing. Likely, such knowledge is part of popular discourse, which the media do not discuss along with such incidents. It is the responsibility of schools (particularly non-registered informal schools) to inform children/people about the difference between Muslims and non-Muslims. Doing so, they also tell them reasons for calling Ahmadis non-Muslims. A child in his/her early age is sent to learn Islamic teachings (at least to learn how to read the Quran) this also include the difference between ‘us’ and ‘the others’ (difference between Muslims and non-Muslims). Therefore, the media perhaps do not mention such things, which already exist.
From the Sunni perspective (also, faith in the Quran and its teaching is one of the fundamental principles of Islam) the denial of Quran or its teaching means rejecting Islam. When the Quran says that Muhammad (PBUH) is the last in the line of prophets, this means Ahmadis are denying the Quran and the finality of prophethood. Therefore the killing of Ahmadis has been seen in a similar cultural and religious context to that in which the discourse of the 'others' or ‘heretical’ is framed. The militants, perhaps, killed them to purify the Islamic state; they are protecting the religious society from an imminent danger by killing them or stopping them from looking like Muslims or being called Muslims. Because they are ‘heretical’, they are wrecking Islamic society; they are disobedient to Islam (Allah). For radicals this calls for jihad against those disobedient.
Perhaps all Pakistani newspapers as part of Sunni Muslim society have also their interests in not blaming the religion of attackers. This does not mean that the religion tells them to do it, but it is their interpretation of Islam as doing Jihad; this has also moral support through discursive discourse practices in the society. It may be wrong to generalize; the text of Pakistan news articles do not blame the attackers' religion, but this process reveals the way society limits levels of expression and allows the media to represent others. The media write in the same style as the culture works (or the powers of its operations work). The Pakistan media do not write about ‘the others’ in the way that the outsider media outlets can represent ‘the others’ (Ahmadis). The restriction to reports on a limited scale means that the media work under certain dominant discourses of power in the society.
Thus the Pakistani media report the incident within social, cultural and the legal limitations and crossing these limitations is risky for these media outlets and people working with them. By terming them an Ahmadi community, media is isolating them from Islam or mainstream Muslims that makes them socially powerless and weaker. Their identity remains different then.
In the past, Pakistani media performed differently to represent majority and minority under the perception of risk, and remain ‘bard’ of the majority not of all sections, but will the Pakistan media in the future be bard of all sections of society?
In Pakistan, on 6th October 2005, during morning prayers, two motorcyclists attacked on Ahmadi’s place of worship in which eight were killed and fourteen injured. This October incident was reported in local, national and international media. For the analysis I choose three news articles published with two Pakistani newspaper and one in Britain, the BBC.
In the late nineteenth century, Mirza Ahmad declared himself the Imam Mahdi, the promised Messiah and the prophet. Some people followed him and started to be known as Ahmadis or Qadianis in Muslim world. The majority of Muslim groups did not (still does not) accept these claims. In 1974, the Government of Pakistan declared the Ahmadis non-Muslims and heretical by amending the constitution of the country. In 1984, the Tuheen-e-Risalat (blasphemy) law was introduced against the Ahmadis. These laws are an outcome of the influence of the majority ruling Sunni-Muslim groups. According to the law in Pakistan, it is blasphemy if an Ahmadi calls him/herself a Muslim and terms his/her place of worship a mosque.
There is great variation between the Pakistani news reports and the BBC in using the identity of participants in their reports. The BBC, an outsider, (unlike the case BBC in Urdu which has a target audience in Pakistan), does not use the same terminology in referring to the victims (Ahmadis). That is an obvious mark of the ideological position of these outlets. The BBC has used each term five times: ‘sect’ and ‘mosque’. It overtly calls them a ‘sect’, not a separate entity from Islam but an offshoot of Islam, but with a minor difference; that is, Ahmadis believe in Murza Ghulam Ahmad as the Promised Messiah or the Imam. While the Pakistan newspapers published in Pakistan avoided using language, which could represent Ahmadis as Muslims and their places of worship as mosques. These newspapers see the Ahmadis in a similar way to the majority Sunni Muslim groups. The Pakistan reporters are very reluctant to call them a sect of Islam. These call them as Ahmadi Community and ‘Qadiani’.
The BBC represents both as two binary religious groups in Pakistan. Its language of representation is mild for the victims and hard for the attackers and their religion. Sunni Muslims are represented as the terrorists and so their religion, while the Ahmadis are placed in the position of victims. The BBC shows that the Ahmadis are a peaceful community and have not crossed the boundaries of society demarcated by society. Moreover, it portrays that Ahmadis are Muslims, and their place of worship is a mosque. It is apparent that the BBC is not bound by any Pakistani legal and socio-cultural restrictions therefore it portrays as per nature of the society where from it is regulated.
The intrinsic importance of the reports on the October 6, 2005 incident lies in the system of using fixed terminologies to set apart one entity (us) from another (others). The news reports in Pakistani media are formatted through specific sets of social and legal rules. In an anthropological sense, the response to risk is not atomized and individual, but rather a collective cultural issue. The news reports in Pakistan newspapers are a reflection of a social and ideological practice, or in other words a discourse that represents social facts within the frameworks of society. The formation of the language, according to given conditions and frameworks, supports the idea that the news reporting or formatting is greatly under the influence of current social and ideological processes. The neutrality of language use is at stake.
According to anthropological ‘bardic theory’, proposed by two renowned anthropological and media scholars, John Fiske and John Hartley’s (1978), the media represent the issues in line with a mutual understanding between the media and citizens. They share the same understanding and collectively construct the universe of discourse. Therefore it seems that the majority and the media are playing the similar roles in news reports they represent the minority, Ahmadis.
Obviously, the Pakistani media work like a ‘bard’ of the majority. In reality, the media do not perform the bardic role for whole society; in this bardic role there should be consensus on all sides, while here only the majority influences the contents of the news reports. Since the media show the same position which the majority projects. They work under the dominant social, cultural, religious and legal forces, so that the media cannot project their own views and position at a great length. What about the BBC, does it perform as bard of Pakistani society? The answer to it is, no.
In general, the religious belief and popular discourses in Pakistani society are relatively the most assertive factors in exposing Ahmadis to risk (life threats) and giving them a different identity. Both groups, in the Pakistani media, are represented as in binary opposition to each other. In this, the constitution of the country and other blasphemy laws create taboos for each individual in Pakistan whether he or she works in the media or somewhere else. The day-to-day these practices against the Ahmadis are an open threat to all who take chance of representing Ahmadis as Muslims. Therefore, in representing the Ahmadis, cultural, religious and legal aspects are dominant over the Pakistani media’s own choice in representing ‘the others’.
The fear that Ahmadis are polluting Islam and the Islamic state (this is a threat to Islam) is maintained through common knowledge available at the societal and cultural level; religious leaders, the constitution of the country and the blasphemy law (Tuheen-e-Risalat Law 1984) provide justification from the Quran and Sunah.
Thus, from an anthropological perspective, the formation of the perception of risk posed by ‘the others’ is collective (by majority Sunni) rather individual (minority). It is neither an issue of a few groups nor the problem of representing Ahmadis as ‘the others’ in the media, rather it is an issue of the common discourse of hatred against 'the others'.
In the context of religious ideology, however, both groups (Sunni radicals and Ahmadis) pose threat to each other. The radical Muslims demonstrate threats to their culture and belief through attacking places of worship (or killing Ahmadis). Ahmadis have no way to compensate for the matter except waiting for justice and raise their voice at different levels because of their weaker position in society, since justice is relatively not organized for them in the legal and social institutions of society.
In Pakistan, it is presumed that almost everyone knows about the Ahmadis and the reasons for their killing. Likely, such knowledge is part of popular discourse, which the media do not discuss along with such incidents. It is the responsibility of schools (particularly non-registered informal schools) to inform children/people about the difference between Muslims and non-Muslims. Doing so, they also tell them reasons for calling Ahmadis non-Muslims. A child in his/her early age is sent to learn Islamic teachings (at least to learn how to read the Quran) this also include the difference between ‘us’ and ‘the others’ (difference between Muslims and non-Muslims). Therefore, the media perhaps do not mention such things, which already exist.
From the Sunni perspective (also, faith in the Quran and its teaching is one of the fundamental principles of Islam) the denial of Quran or its teaching means rejecting Islam. When the Quran says that Muhammad (PBUH) is the last in the line of prophets, this means Ahmadis are denying the Quran and the finality of prophethood. Therefore the killing of Ahmadis has been seen in a similar cultural and religious context to that in which the discourse of the 'others' or ‘heretical’ is framed. The militants, perhaps, killed them to purify the Islamic state; they are protecting the religious society from an imminent danger by killing them or stopping them from looking like Muslims or being called Muslims. Because they are ‘heretical’, they are wrecking Islamic society; they are disobedient to Islam (Allah). For radicals this calls for jihad against those disobedient.
Perhaps all Pakistani newspapers as part of Sunni Muslim society have also their interests in not blaming the religion of attackers. This does not mean that the religion tells them to do it, but it is their interpretation of Islam as doing Jihad; this has also moral support through discursive discourse practices in the society. It may be wrong to generalize; the text of Pakistan news articles do not blame the attackers' religion, but this process reveals the way society limits levels of expression and allows the media to represent others. The media write in the same style as the culture works (or the powers of its operations work). The Pakistan media do not write about ‘the others’ in the way that the outsider media outlets can represent ‘the others’ (Ahmadis). The restriction to reports on a limited scale means that the media work under certain dominant discourses of power in the society.
Thus the Pakistani media report the incident within social, cultural and the legal limitations and crossing these limitations is risky for these media outlets and people working with them. By terming them an Ahmadi community, media is isolating them from Islam or mainstream Muslims that makes them socially powerless and weaker. Their identity remains different then.
In the past, Pakistani media performed differently to represent majority and minority under the perception of risk, and remain ‘bard’ of the majority not of all sections, but will the Pakistan media in the future be bard of all sections of society?
Monday, February 8, 2010
The Human Rights Trends of 2009 in Pakistan
In 2009 Pakistan was tempted to violate human rights, claims Human Rights Watch in its 20th Annual Report 2010, the Human Rights Trends of 2009. Including Pakistan, the report offers summarized details of human rights conditions and violations in more than 90 countries and territories worldwide.
The report says that Pakistan was one of the countries that blocked access to independent experts and rapporteurs from the UN Human Rights machinery.
The UN rapporteurs work independent of governments and have recognized competence in the field of human rights. They regularly conduct fact finding missions to investigate allegations of human rights violations. They visit on two accounts: one, if a government invites them; and two, rapporteurs themselves write to the concerned government of the country from where they received authentic appeals and reports regarding human rights violations perpetrated by the government. Although the report keeps the names of appellant and victims anonymous, the fact that the Government of Pakistan refuses to cooperate alone is sufficient to suggest that the government has a guilty conscience.
In the name of war against terrorism or extremism, Pakistan’s response to militant attacks regularly violated basic rights. Across the country, particularly in conflict zones in Swat and tribal areas, hundreds of suspects were detained mainly without charges; or, if charged, often were convicted without a fair trail. Majority of these suspects were kept in two different facilities one in Swat and other somewhere in the province. Independent UN monitors had no access to the most of the detainees. The interior Ministry of Pakistan estimated that 1100 people had disappeared during Musharaf era, but from the scale and secrecy of counterterrorism operations in the country, the number of disappeared people seems very small. Although the Zardari administration had vowed to resolve the issue but not only has it made insignificant progress, it has also not signed the International Convention for the Protection of All Persons from Enforced Disappearance 2006. The military operations in Swat and the tribal areas also resulted in a massive displacement crisis, as some two million civilians fled the fighting areas to adjoining ones. It was an abrupt displacement, because the Pakistan forces besieged the areas without prior intimation to the residents.
In October 2009, the government amended the Anti Terrorism Act and restricted the legal rights of terror suspects by increasing the duration of preventive detention from a period of 30 days to 90 days, without benefit of judicial review or the right to bail. Under the act, the confessions made by the suspects before the police or military were equal to final evidence.
Pakistan alleged that drone missile attacks carried out by the United States since September 2008 on suspected militant hideouts in Pakistan’s tribal areas, killing hundred of civilians and alleged militants, were violating the international laws of war. But Pakistan did not provide access to independent monitors to assess the validity of allegations.
In October 2009 United Nations on Extrajudicial Executions reported to the UN General Assembly that the US government’s no-response to the specific questions about the drone attacks strengthens the perceptions that the US was “carrying out indiscriminate killings in violation of international law.”
The report acknowledges the government for restorating the ousted Supreme Court’s Chief Justice of Pakistan; taking a major step forward by admitting the human rights violations against Baloch people, including disappearance of hundreds of Baloch; amending Section 509 of the Pakistan Penal Code in order to penalize sexual harassment of women at any public and private workplace, or in public spaces; and in the National Assembly passing the Domestic Violence (Prevention and Protection) Bill in August 2009 which would prevent violence against women and children through quick criminal trials and a chain of protection committees and protection officers.
The report considered Pakistan Supreme Court’s a ruling in July a positive development in which Hijras (male-to-female transgender individuals) were provided equal protection of law and funds for their community welfare. It further said that the allocation of US$425 millions to launch the Benazir Income Support Program was the country’s first social protection program for supporting the poorest 15 percent of the population.
The report highlighted that journalists continued to face pressure and threats from elements within Pakistan’s intelligence apparatus and non-state actors. At the same time, religious minorities faced hardships under the Blasphemy Law, and attacks on them continued. Kerry Lugar Bill, the presence of Black Water, the infamous US based security company, in the country soaring inflation, commutation of death penalty and investigation into the 2007 assassination of former Prime Minister Benazir Bhutto were also the areas of concerns for the report.
The report misses to mention a number of other serious human rights violations in Pakistan, and its inability to take preventive measures.
After the ratification of the United Nations Convention on the Rights of the Child (UNCRC) in 1990, Pakistan has yet not implemented or sufficiently implemented the relevant provisions of the convention. Thousands of children became victim of violence, sexual and physical abuse and millions were deprived of basic rights, protection, shelter and care. The Trial Courts all over Pakistan continued to sentence hundreds of children rigorous imprisonment without taking into account the guarantees given to them under the section 12 of the Juvenile Justice System Ordinance 2000 which states that no child “shall” be ordered to labour and given any corporal punishment during the time spent in custody or any Borstal or such other institution.
In Indian jails about 1,016 Pakistani prisoners including 300 fishermen are currently detained, while there are 625 Indian fishermen and 66 other Indians citizens in Pakistani jails. Many of these detainees on both sides have completed their sentences but still remain behind bars, and subjected to torture and abuse. Indeed, it has fast become a tit for tat game between the two countries.
According to the National Aliens Registration Authority (NARA) 2.5 million to 3 million Bengali-origin immigrants are living in different settlements of Karachi. Only a handful of them may have been leading a respectful life, while the rest of the Bengali community is devoid of basic socioeconomic and political rights. They live in an environment of insecurity and pressure, and pass through humiliating procedures from the time of registration to finding any work in the country. At the same time, target killings of political activists of MQM Haqiqi, MQM Haq Parast, PPP, ANP, JSQM and other nationalist parties workers was absent in the report.
Besides, the report does not dwell on blood feuds the in rural areas of Pakistan, some of which have been declared as ‘no-go areas’ for a common person. Herein lies judicial and administrative apathy to eliminate these feuds.
Other than what the HRW report has not mentioned in the context of Pakistan, it, however, is very important report of 2009 which seeks to expose anti human rights trends in Pakistan, asses threats being posed to human rights movements in the country, and calls for reversing those trends. This report further urges government to ensure the safety of human rights defenders by eliminating elements that are violently opposed to human rights movement. By Abdullah Khoso
The report says that Pakistan was one of the countries that blocked access to independent experts and rapporteurs from the UN Human Rights machinery.
The UN rapporteurs work independent of governments and have recognized competence in the field of human rights. They regularly conduct fact finding missions to investigate allegations of human rights violations. They visit on two accounts: one, if a government invites them; and two, rapporteurs themselves write to the concerned government of the country from where they received authentic appeals and reports regarding human rights violations perpetrated by the government. Although the report keeps the names of appellant and victims anonymous, the fact that the Government of Pakistan refuses to cooperate alone is sufficient to suggest that the government has a guilty conscience.
In the name of war against terrorism or extremism, Pakistan’s response to militant attacks regularly violated basic rights. Across the country, particularly in conflict zones in Swat and tribal areas, hundreds of suspects were detained mainly without charges; or, if charged, often were convicted without a fair trail. Majority of these suspects were kept in two different facilities one in Swat and other somewhere in the province. Independent UN monitors had no access to the most of the detainees. The interior Ministry of Pakistan estimated that 1100 people had disappeared during Musharaf era, but from the scale and secrecy of counterterrorism operations in the country, the number of disappeared people seems very small. Although the Zardari administration had vowed to resolve the issue but not only has it made insignificant progress, it has also not signed the International Convention for the Protection of All Persons from Enforced Disappearance 2006. The military operations in Swat and the tribal areas also resulted in a massive displacement crisis, as some two million civilians fled the fighting areas to adjoining ones. It was an abrupt displacement, because the Pakistan forces besieged the areas without prior intimation to the residents.
In October 2009, the government amended the Anti Terrorism Act and restricted the legal rights of terror suspects by increasing the duration of preventive detention from a period of 30 days to 90 days, without benefit of judicial review or the right to bail. Under the act, the confessions made by the suspects before the police or military were equal to final evidence.
Pakistan alleged that drone missile attacks carried out by the United States since September 2008 on suspected militant hideouts in Pakistan’s tribal areas, killing hundred of civilians and alleged militants, were violating the international laws of war. But Pakistan did not provide access to independent monitors to assess the validity of allegations.
In October 2009 United Nations on Extrajudicial Executions reported to the UN General Assembly that the US government’s no-response to the specific questions about the drone attacks strengthens the perceptions that the US was “carrying out indiscriminate killings in violation of international law.”
The report acknowledges the government for restorating the ousted Supreme Court’s Chief Justice of Pakistan; taking a major step forward by admitting the human rights violations against Baloch people, including disappearance of hundreds of Baloch; amending Section 509 of the Pakistan Penal Code in order to penalize sexual harassment of women at any public and private workplace, or in public spaces; and in the National Assembly passing the Domestic Violence (Prevention and Protection) Bill in August 2009 which would prevent violence against women and children through quick criminal trials and a chain of protection committees and protection officers.
The report considered Pakistan Supreme Court’s a ruling in July a positive development in which Hijras (male-to-female transgender individuals) were provided equal protection of law and funds for their community welfare. It further said that the allocation of US$425 millions to launch the Benazir Income Support Program was the country’s first social protection program for supporting the poorest 15 percent of the population.
The report highlighted that journalists continued to face pressure and threats from elements within Pakistan’s intelligence apparatus and non-state actors. At the same time, religious minorities faced hardships under the Blasphemy Law, and attacks on them continued. Kerry Lugar Bill, the presence of Black Water, the infamous US based security company, in the country soaring inflation, commutation of death penalty and investigation into the 2007 assassination of former Prime Minister Benazir Bhutto were also the areas of concerns for the report.
The report misses to mention a number of other serious human rights violations in Pakistan, and its inability to take preventive measures.
After the ratification of the United Nations Convention on the Rights of the Child (UNCRC) in 1990, Pakistan has yet not implemented or sufficiently implemented the relevant provisions of the convention. Thousands of children became victim of violence, sexual and physical abuse and millions were deprived of basic rights, protection, shelter and care. The Trial Courts all over Pakistan continued to sentence hundreds of children rigorous imprisonment without taking into account the guarantees given to them under the section 12 of the Juvenile Justice System Ordinance 2000 which states that no child “shall” be ordered to labour and given any corporal punishment during the time spent in custody or any Borstal or such other institution.
In Indian jails about 1,016 Pakistani prisoners including 300 fishermen are currently detained, while there are 625 Indian fishermen and 66 other Indians citizens in Pakistani jails. Many of these detainees on both sides have completed their sentences but still remain behind bars, and subjected to torture and abuse. Indeed, it has fast become a tit for tat game between the two countries.
According to the National Aliens Registration Authority (NARA) 2.5 million to 3 million Bengali-origin immigrants are living in different settlements of Karachi. Only a handful of them may have been leading a respectful life, while the rest of the Bengali community is devoid of basic socioeconomic and political rights. They live in an environment of insecurity and pressure, and pass through humiliating procedures from the time of registration to finding any work in the country. At the same time, target killings of political activists of MQM Haqiqi, MQM Haq Parast, PPP, ANP, JSQM and other nationalist parties workers was absent in the report.
Besides, the report does not dwell on blood feuds the in rural areas of Pakistan, some of which have been declared as ‘no-go areas’ for a common person. Herein lies judicial and administrative apathy to eliminate these feuds.
Other than what the HRW report has not mentioned in the context of Pakistan, it, however, is very important report of 2009 which seeks to expose anti human rights trends in Pakistan, asses threats being posed to human rights movements in the country, and calls for reversing those trends. This report further urges government to ensure the safety of human rights defenders by eliminating elements that are violently opposed to human rights movement. By Abdullah Khoso
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