Violations of child rights in FATA under the FCR and the AACPR

Introduction

This brief paper highlights how the Frontier Crimes (Amendment) Regulation, 2011, and the Action (in Aid of Civil Power) Regulation, 2011, allow violation of child rights in FATA (Federally Administrated Tribal Areas) [1]. The main focus of the paper is violation of the rights of children who come in conflict with law and do not meet treatment given in the Constitution of Pakistan, 1973, the Juvenile Justice System Ordinance (JJSO)[2], 2000 and other laws.

Administration of Juvenile Justice in FATA

In 2004, the JJSO was extended to FATA.[3] By December 2011, the Juvenile Justice System Rules of Khyber Pakhtunkhwa were not extended to FATA. The JJSO has not been implemented because the given structure and system have not been placed in FATA which would ensure implementation of the JJSO. System in FATA continues to operate without juvenile courts, probation system, borstal arrangements and panel of lawyers.

The FCR after amendments in 2011

In 1901, the British Colonizers introduced the FCR to deal with tribal miscreants.[4] After independence, Pakistan allowed the tribal territories to retain their separate administrative and legal structure as contained in the FCR. The law was not changed till 2011.[5]

On August 11, 2011, the President of Pakistan [6] signed changes in the Frontier Crimes (Amendment) Regulation 2011. Some quarters welcomed the amendments because the amended version of the FCR provides certain protection to children but the given amendments were not the demand of civil society. Following are some amendments in the FCR related to child rights:

Defining a child and the age of criminal responsibility

Before the Amendments in the FCR, the child was not defined. After the amendment, in Section 21, the child is defined. In 21 Section it says that the Political Agent or District Coordination Officer on the account of a hostile or offensive act of an individual or tribe or sub-tribe can order to arrest the members of the hostile or offensive tribe or sub-tribe and custody of moveable or immoveable property which will be confiscated. Further its says that “women, children less than sixteen years of age persons over sixty-five years of age shall not be arrested and detained under this section”. Also in Section 22 (Fine on communities accessory to crime) a child has been defined a person less than sixteen years. Also under the new Section 11-A (Bail) a person under sixteen years of the age has been mentioned which refers to the child.

The FCR now defines a child below sixteen years of age whereas the JJSO defines a child below 18 years of age. Although through the amendment the term children has been introduced in the law but the age of the child does not correspond to the age of the child given in the JJSO.

Sparing children in case of collective responsibility clause is not an achievement because these are those children who should not been arrested or detained for the offences or hostilities committed by their relatives, which is against the justice and human rights spirit. Children’s (above 16 and below 18 years of age) arrest under the collective responsibility clause is arbitrary arrest and against Article 9 of the Constitution of Pakistan: “No person shall be deprived of life or liberty save in accordance with law”, and also Articles 9 and 37 of the UDHR and UNCRC respectively, which speak against the arbitrary arrest of children.

Only in a case when a child commits an offence or is a supposed offender based on legal grounds, then his/her detention may be considered as a last resort but under Sections 21 and 40 of the FCR, a child can be arrested and sentenced. The arrest and detention under the FCR do not coincide with the idea of the best interests of the

child. Section 21 still applies on children above sixteen and below eighteen years of the age. They will be arrested and punished for offences and hostilities committed by members of their tribe or family. Interestingly, the FCR does not lay down procedure of determine the age of the child below sixteen years, since there are no Juvenile Courts in FATA. A 14/15 years child may be victim of Section 21 of the FCR in the absence of birth registration in FATA.

Interestingly, neither the JJSO nor Section 83 (act of a child above seven and under twelve of immature understanding) [7] of the Pakistan Penal Code, 1860, apply on these children caught under Section 21 of the FCR because they have not committed any offence or hostility whereas the JJSO lays down procedure for the protection of those children who come in conflict with law and their rehabilitation in society [8] whereas Section 21of the FCR is not for children who come in conflict with law.

Section 21 merely exempts children below 16 years of age from the collective responsibility but it is silent about other types of offences as well as the age of criminal responsibility. Exemption of children below 16 years of children from the collective responsibility clause does not mean that the PA would exempt children-7-years-old for acts (offences) done by them.

The right fair trial, bail and legal representation

A new Section 11A has been inserted in the FCR which is very confusing in many respects but with regard to children it is more confusing. It says that Political Agent (PA) or (District Coordination Officer (DCO) may direct any person under the age of sixteen years (not accused of an offence punishable with imprisonment for ten years) to be released on bail but then it says that if the person (including child) “accused of an offence as aforesaid shall not be released on bail unless the complainant has been given notice to why he should not be so released”. Bail does not seem to be the right of the accused person but a discretionary power of the PA or DCO; and if the complainant does not arrive for months and years to argue against the bail application, the child would not be able to take the right of bail. Under the JJSO, bail is matter of a right after certain period of time even in those cases in which imprisonment is for ten years.

Secondly, it uses the term ‘may’ rather ‘shall’. If the JJSO is extended in 2004 in FATA it means a child offender shall enjoy all provisions of bail under Section 10 of the JJSO. The FCR has failed to include any of the provision of the JJSO which emphasizes on releasing child on bail or probation under the custody of guardian, probation officer or suitable person.

The FCR, before and after the amendment, has failed to address the issue of legal aid; who will provide legal aid to children if their parents or relatives are absconder? Without legal aid at the expense of the State, children will not be able to protect and defend themselves and fair trial will not be possible without legal representation. Inserting just an option of bail is not sufficient to address the legal rights of those children who cannot afford a legal counsel.

Corporal punishment and rigorous imprisonment

Section 12 (punishment on conviction on findings of council) and Section 13 (manner of enforcing sentences) of the FCR have failed to exclude child offenders from their ambits. Section 13 (a) allows imprisonment for life with rigorous imprisonment which means a child will have to do the labour and be given corporal punishment which is against Section 12 of the JJSO which prohibits from punishing a child.

The right to property

Section 21 also deprives the child from the property that his/her family owns or inherits. If the property is confiscated under the said Section and is not returned to the family of the child which means the share of the child from the confiscated property is not possible which is against Article 23 of the Constitution which says that “Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan”.[9]

The right to health and education

Section 21 (c) says that the hostile members of a tribe/sub-tribe will be debarred from accessing into the settled area of Pakistan. In other words, under the collective responsibility clause, the law stops children and women to travel to the settled areas to get education and get medical assistance because their tribe members are hostile.

The right to shelter

Section 39 says that PA or DCO may prohibit a person to use a building or attachment of the building that has been used by robbers, housebreakers, thieves, receivers of stolen properties, protector or harbourers of thieves or their abettors, habitual offenders, offence involving breach of peace and so on. It implies that if the father or brother of the child is robber or is involved in any of the offences mentioned above, the PA or DCO will deprive child from the house. It also implies that even if the child’s brother or father are not involved but any of them allowed any of the person listed above, would be deprived of home or shelter.

Fines on children

Children of any age can be fined and arrested under Section 22 (b) (fine on communities accessory to crime) if they “failed to render any assistance in their power to discover the offenders or to effect their arrest”.

From the text of Section 23 (Fines on communities where murder or culpable homicide is committed or attempted) it appears that children either below sixteen or below 18 years of age will not be spared from paying fines. Or in other case, if the communities did not pay the fine, then those communities/children would be arrested.

Arrested under the breach of peace

Section 40 the FCR, allows the PA or DCO to arrest a child for any wrong act or offence which may cause breach of the peace whereas the JJSO says that “No child under the age of fifteen years shall be arrested under any of the laws dealing with preventive detention or under the provision of Chapter VIII of the Code”[10] which is about offences against public tranquillity or peace.

The Council of Elders, juvenile courts and joint trials

The Council of Elders is a complex phenomenon in the FCR. The members of the Council of Elders are usually appointed and nominated by Assistant Political Agents (APAs) according to the nature of the offence. These APAs are given powers by PA, DCO and the Governor. The Council is the main body that investigates the civil and criminal cases (Section 8 and 11) and hears the parties (victim/s, offender/s and witness/s) and submit the report to the PA or DCO. The PA or DCO will decide in light of the case’s evidences and material. The members of the Council are not nominated or appointed based on their qualification, for instance, LLB or professional career rather their political and financial status besides their age. How such Council without having professional background or relevant qualification or training will be able to investigate the case from forensic point of view?

If the Council is investigating the cases of accused children, which means children will not receive justice as prescribed in the JJSO. The Council will probe the child. It also implies that there is no provision of Juvenile Courts which could separately deal with children’s cases prescribed under the JJSO.

Justice is compromised

Section 4 and 5 of the FCR give both powers, i.e. judicial and administrative, to the PAs and APAs. In result, justice is compromised. These PAs and APAs are blamed for creating mess in the justice system in FATA [11]. A child cannot expect justice if both powers are concentrated in single office.

The FCR Tribunal and FATA Tribunal

As the PA, DCO and Council of Elders are without professional degree in the field of law and without the career as judicial officer, similarly it is in the establishment of the FATA Tribunal which has replaced the FCR Tribunal through the amendments in August 2011. A child can make a final appeal to the FATA Tribunal but the child cannot appeal in the Peshawar High Court or the Supreme Court of Pakistan.

The FATA Tribunal is not an independent body because all of its members are appointed for three years by the Governor of Khyber Pakhtunkhwa under Section 55-A (3) of the FCR whereas High Courts Judges are appointed and removed by the Judicial Commission of Pakistan under Article 175-A of the Constitution which primarily is comprised of nine members from Supreme Court and High Courts.[12]

The tribunal does not have powers related to habeas corpus or illegal detention cases as powers given to Higher Courts under Article 199 of the Constitution.[13] The Tribunal will not take notice of the violations of the fundamental rights in Chapter 1 of the Part II of the Constitution.

The Action (in Aid of Civil Power) Regulation for FATA

Before signing the FCR, the President of Pakistan signed another dangerous law- the Actions (in Aid of Civil Power) Regulation (AACPR), 2011- a law that legalizes detention of children and else in the name of national security by armed forces for unlimited time and without trial.

The rationale behind introducing the AACPRs seems to be a justification of detention of hundreds of people including children for months and years by the Armed Forces [14] and also to justify the same actions in coming days. On 23rd June 2011, the President signed the Regulation- the AACPR, 2011- for FATA but with effect from the 1st February 2008 [15]. Preamble of the AACPR says that the AACPR is directions by the Federal Government and signed by the President under Article 247 (4) of the Constitution to Armed Forces to act to counter any threat to the solidarity and integrity of Pakistan. The Armed Forces would carry out actions to curb threats and menace created by miscreants and foreign funded elements. The miscreants would be treated under the law if they are no longer loyal and obedient to the state and constitution of Pakistan.

In some manners, the law is painted with human rights perspective because it prohibits from torture and speaks about safety and protection of children, women and old people. There is also a chapter ‘Human Rights and Oversight’ in which a board has to be constituted to oversight matters of confinement in the Internment.

Definition of children

In Section 4 (1) (a) the law says when the Armed Forces are using force they may take special measures in respect of the life and safety of children but it does not define who are children.

The right to remain silent

Section 4 (1) (c) says that the Armed Forces may direct the residents including children to point out the miscreants in hiding. In case, the residents are silent they will be considered supportive of the miscreants. This provision is against the fundamental principle of the right to remain silent and the right to have privacy.

Oversight of human rights violations

Under Section 14 an Oversight Board comprising two civilians and two military officers will be constitute by the Governor Khyber Pakhtunkhwa to monitor any human rights violations during anybody including child’s 120 days in the confinement in the Interment center but it does not lay down procedure and mechanism for complaint against those human and child rights violations during the Armed Forces’ operations and activities in FATA region. However, in Section 5 (Misuse of force during actions in aid of civil power) it says that allegation against any member of the Armed Force shall be investigated within the hierarchy of the Armed Forces. Sadly, it is not possible for people to lodge complaint against the personnel of the Armed Forces and there is no any authority notified to which such complaints can be made.

May arrest and detain on the context of peace

Section 9 (2) leaves a greater vacuum of exploitation and abuse of power by the Interning Authority who could arrest and detain any person including a child for maintaining peace in the area: It says, “If, in the opinion of the Interning Authority, the internment of any person is expedient for peace in the defined area, it shall pass an order of internment”. Whereas the JJSO (Section 10) prohibits arrest and detention of children under preventive detention or may detain for an act that may cause disruption in peace.

Children being exploited

Section 16 (7) says that if a person including a child supports in the attempt of the commissioning of an offence shall be considered offender. There is need to define the term ‘support’ because the apparent support extended by children below 18 years could be a possible exploitation and misuse of children. As the general case is, children are exploited by the armed groups; they are involved by militant but by force or on the nose of gun; they are being used as weapons or source of illegality or offence. In this law, there is no such provision that states that if the child is being exploited or misused would not be treated as an offender.

Death sentence

Under Section 17 a child could be possible victim of death sentence or imprisonment life imprisonment. Even if this law treats a child in light of the age of the child in the FCR, it means children between 16 and 18 years of age will be given death sentence or life imprisonment.

Producing before the Magistrate within 24 hours

Article 10 (2) of the Constitution reads that a person who is arrested and detained in custody shall be produced before the magistrate within a period of 24 hours of such arrest. [16] Whereas Section 18 (1) of the AACPR says that a person/child who commits offence under the AACPR shall be proceeded against under any applicable law shall be handed over to the prosecuting or investigating agency concerned for affecting formal arrest. It connotates that detention in the Internment (declared or notified Internment by the provincial government) [17] for 120 days would not be considered a formal arrest and detention. And, before coming to the Internment, days spent in any detention places of the Armed Forces would not be counted. The law also does not say that when the offender/accused has to be produced/brought in the Internment, either the accused/offender has to be brought right after the arrest or any day after the arrest. When the investigation against the child is completed during his stay (for 120 days) in the Internment then the child would be handed over to the prosecuting authorities.

The right to fair trail and equal protection of the law

Section 19 (1) (2) gives a complete protection to the evidence or statement given by the Interning Authority, any person by the Armed Forces or any officer authorized on his behalf. The law considers these evidences sufficient for convicting the accused child or else. This whole section completely ignores a due legal process being carried out in the light of Qanun-e- Shahdat (law of evidence), 1984, and the Constitution. In this situation, the accused child does not need to consult with his legal counsel since the evidence and statements by the concerned officials are considered sufficient and final. If awarded death sentence, the child would not appeal or challenge the verdict anywhere. Sadly, there is no mechanism to protect the child from the biasness of the officers submitting the evidences or statements. The right to be considered innocent until proven guilty [18] is completely denied under AACPR such approach deprives a child from the right to fair trial [19]. A child arrested by the Armed Forces means the child is proven guilty and his detention in the Internment is must for maximum 120 days or when the Internment Authority decides or withdraws the child’s detention. The child also does not enjoy the right of to be treated equal before the law and equal protection of the law as stated in Article 25 (1) of the Constitution.

Interrogation and overriding effect of the law

In the Internment, authorities can interrogate the child [20] but it does not say how interrogation would be regulated. Such introgation may encompass torture which is prohibited in Article 14 of the Constitution. Section 24 of AACPR gives overriding effect to the AACPR on all other laws including the Constitution..

Conclusion

The recent amendments in the FCR will not make any difference in the lives of children of FATA until the law is abolished, Article 247 of the Constitution is amended and powers are given to the parliament to make laws for the people of FATA and the right to appeal in the High Court Peshawar and Supreme Court of Pakistan is given to the people of FATA. The amended version is not different from the old version of the FCR; still powers are centred into one office of the Political Agent and Assistant Political Agent. The FATA tribunal replacement of the FCR Tribunal is not an independent body that could deliver justice to children.

Introduction of the AACPR adds more miseries in the lives of children and innocent people of FATA. Most of the provisions of the law are against the spirit of the Constitution and human rights values.

End Notes

[1]The FCR and AACPR are enacted in FATA: FATA is one of the Pashto speaking tribal areas in the northwest of Pakistan and lies between Khyber Pakhtunkhwa (earlier known as NWFP) and Balochistan provinces. In its northern border lies Afghanistan.

[2] The JJSO protects the rights of children who come in conflict with laws.

[3]Notification: JJSO in FATA. S.R.Q 928 (1)/2004, dated Nov 6, 2004 Last retrieved on December 9, 2011 at www.hrcp-web.org/pdf/AR2005.pdf

[4]Alaiwah Word Press (2008), ‘Evolution of the FCR: Frontier Crime Regulations’: Last accessed on 14th March 2010 at http://alaiwah.wordpress.com/2008/11/28/evolution-of-the-fcr-frontier-crimes-regulation/

[5] Amnesty International (2008); As if hell fell on me: Human Rights Crisis in Northwest Pakistan; last rectrived on December 2011 at http://www.amnesty.org/en/library/asset/ASA33/004/2010/en/1ea0b9e0-c79d-4f0f-a43d-98f7739ea92e/asa330042010en.pdf

[6] The President of Islamic Republic of Pakistan (2011), ‘Political activities allowed in Tribal Areas, FCR reformed’: Last retrieved on 2nd December 2011 at http://www.presidentofpakistan.gov.pk/index.php?lang=en&opc=3&sel=3&id=549

[7] Pakistani Organization; Pakistan Penal Code: Last retrieved on 10 December 2011 at http://www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html

[8] Preamble of the JJSO 2000

[9] Pakistani Organization; ‘Constitution of Pakistan’; last retrieved on 4th June 2011 at http://www.pakistani.org/pakistan/constitution/part2.ch1.html

[10] Section 10 (6) of the JJSO

[11] The Express Tribune (2011); Conference: Political agents held responsible for FATA’s problems: Last retrieved on 28th January 2012 at http://tribune.com.pk/story/287839/conference-political-agents-held-responsible-for-fatas-problems/

[12] Pakistani Org; The Constitution of Pakistan at http://www.pakistani.org/pakistan/constitution/part7.ch1.html

[13] Shah, W A (2011), Changes in FCR make political agents more powerful; in Dawn newspaper: Last retrieved on 5th December 2011 at http://www.dawn.com/2011/09/05/changes-in-fcr-make-political-agents-more-powerful.html

[14] Defined as “the Pakistan Armey, Pakistan Air Force and Pakistan Navy and includes civil armed forces” Section 2 (a) of the AACPRs.

[15] Waseem Ahmad Shah (2011), New regulations give legal cover to detentions in tribal areas; Dawn Newspaper. Last retrieved on 04 January 2012 http://www.dawn.com/2011/07/13/new-regulations-give-legal-cover-to-detentions-in-tribal-areas.html

[16] Pakistani Organization; ‘Constitution of Pakistan’; last retrieved on 4th June 2011 at http://www.pakistani.org/pakistan/constitution/part2.ch1.html

[17] Section 2(i)

[18] Article 40 (2) (b) (i) of the UNCRC

[19] Article 10-A of the Constitution of Pakistan

[20] Section 13