Italian Masco/Maxco factory case: from Karachi to Rome (from 2008 to 2012)

In 2008, an Italian journalist, Stefania Maurizi from l'Espresso Magazine, had contacted Mohammad Ali Shah, head of Pakistan Fisherfolk Forum (PFF), for assessing the working conditions of workers of/in Maxco (also known as Masco) garment and leather factory in Ibrahim Hyderi Karachi. I was working as communication officer with the PFF. Shah asked me if I could help Stefania to explore what she wants to. I welcomed the challenged and came in contact with Stefania and with the help of PFF staff members met with a number of workers who were living in Ibrahim Hyderi where the PFF was also located. Since I did not know about workers/people of Ibrahim Hyderi working in Masco factory, therefore, I had to seek support from the staff members of the PFF. I conducted interviews, recorded them on the recorder, prepared summary of the interviews and along with the digital recorder sent it to Stefania. The same summary of the interviews mainly tells about the inhuman treatment of the factory administrations towards workers which include discrimination, low wages, sexual harassment, and overwork, no legal contract of the employment and many tactics being used by the factory administration to suck blood of poor workers.

All the communication between Stefania and me took place through emails and mobile. Shah was always kept in the loop and updated about the developments in terms of interviews and else.

At the same time, Stefania was in touch with Sheri NGO in Karachi which I did not know. Sheri staff members had helped Stefania to get pictures related to pollution (I am not very clear though).

After a couple of weeks, Stefania shared the link of her article published in her news magazine (l'Espresso), and soon after that she called me and said that the Italian owner of the factory had filed a libel case against her and the magazine, because owner claimed that all details in the article were false and damaging repute of the company. Stefania asked if I could come over to Rome and appear before the court and testify for the facts that I had sent her. I wholeheartedly and without any fear replied that I will come to any place in the world to share with the court that I had conducted interviews of the Masco factory workers.

Since 2008, Stefania kept in touch with me and Sheri people. On 25 October 2012, I travelled from Geneva (I had come to do some lobbying with permanent missions in Geneva for Pakistan’s UPR on October 30 in the Human Rights Council) to Rome. I was warmly welcomed by Stefania. Upon arrival at the Hotel I came to know that two more persons (they were real sister and brother) of Italian origin were also witness in the case who had worked for about six months in Masco factory in Karachi. They were witness of the horrible things happening with workers in Masco factory. I was surprised but really appreciate their courage and dare to appear before the tribunal and tell what Italian owner did with Pakistani workers.

Finally, on October 26, 2012, two people from Sheri, two Italians and I appeared before a three bench tribunal in Rome and testified about the details that we had sent to Stefania.

On my way back to Geneva on the same day (26th October 2012) at the Rome airport, I thought to write a brief story about Stefania’s struggle to fight against people who were exploiting poor people of Pakistan. Hats off to this lady (Stefania) who wrote about the plight of workers and also to those who agreed to testify before the court in Rome. Of course, all were scared if something might happen to them. Perhaps all were visualizing the scary and threatening situation of witnesses in Pakistan. I hope all will go good with all witnesses in coming days too.

I am not sure about the working conditions in the same factory in these days but the Masco company administration who had also appeared in the same court, shared that now there is no inhuman treatment with workers, minimum wage is given, no overwork, no sexual harassment. There were some problems because of arson took place in the factory after the murder of Benazir Bhutto- ex prime minister of Pakistan. I wish and pray that the claims made by the Masco company administration in the court are true, and something good is happening with poor workers of my rich country which is being exploited by external and internal people.

For feedback please write me at: abdullahkhoso[]hotmail.com

Child Labour in Pakistan by 2011

I wrote this chapter for an NGO’s (SPARC) annual report called The State of Pakistan’s Children. This was the first draft. In drafting this chapter I was helped by Akhtar Laghari, Nadir Khoso and Madni Memon.

Child Labour after the 18th Amendment in May 2010

In result of 18th Constitutional Amendment in April 2010, all provinces became responsible to deal with legislation pertaining to labour [1]. Only Punjab assembly adopted the ECA with certain minor changes pertaining to terms like national and federal in 2011[2]. Before the 18th Amendment the Government of Pakistan, through Ministry of Labour, tried to consolidate the existing labour laws through the Employment and Services Conditions Bill -2009[3] (ESC). Worker organizations and trade unions had some serious reservations on the Bill, however, the draft contained provision 16 (c) under which worst form of child labour under 18 years was prohibited in line with the ILO C-182 and the minimum age for the employment was raised up to 15 years in requirement to ILO C-138. The process that took years to bring the government on complying with the ILO’s 182 and 138 Conventions but finished with the 18th Amendment.

In result of the 18th Amendment, in July 2011, the Ministry of Human Resource Development replaced the Ministry of Labour and Manpower. The new Ministry is responsible to deal with “matters pertaining to ILO, social security, legislation about workers, workers welfare fund, Employees Old Age Benefit Institution, foreign employment and immigration, and institution of Industrial Relations Commission.” [4] It is not sure how the new Ministry will be dealing with child labour phenomenon. The provincial labour ministries are worried about funds which yet have not been given to them after the 18th Amendment. The Labour Minister for Sindh considered devolution a meaningless because resources are under control of the new Ministry.[5]

However, the ILO under the ILO-IPEC project is coordinating with the new ministry with regard to the National Child Labour Survey which had to be conducted by the former Ministry of Labour under the European Commission funded project.[6] Whereas on the other hand, the Pakistan Bureau of Statistics has been formed by merging three departments including the Federal Bureau of Statistics (FBS), the Population Census Organisation (PCO) and the Agriculture Census Organisation (ACO)[7]. In 1996, the FBS had conducted the National Child Labour Survey (NCLS), now it is not clear how and when under this new set up the NCLS would be conducted which is due for a long time and also part of the ILO-IPEC project.

Labour inspectors

By the end of 2011, there were about 83 labour inspectors in Punjab having mandate to inspect factories and workshops under the ECA and other laws. According to the Unit, besides 83 Labour Inspectors, there are about 127 Assistant Directors and Deputy Directors responsible to conduct inspections under the ECA and Shop and Establishment Ordinance. According to the Child Labour Unit Punjab, there are no specific child labour inspectors in Punjab. However, on the request letter [8] from SPARC, the Chie Minister Punjab gave directives to the Secretary Labour Department Punjab to appoint labour inspectors under the ECA[9].

According to the Directorate of Labour, Khyber Pakhtunkhwa, there are 32 Labour Inspectors in the province who periodically usually after six months conduct inspections.

In Balochistan, according to the Directorate of Labour, there were informed 45 inspectors including 10 child labour inspectors who inspect factories and workshops according to child labour laws.

The Labour Departments in all provinces lack human resource to meets inspection needs given in various laws mainly the ECA and Shop and Establishment Ordinance. These officers have little training and insufficient resources to comply with the law. These inspectors to some extent can cover child labour in the formal sector but the child labour in the informal sector is completely unmonitored.

Child Labour Inspections

The status of child labour inspection is poor. The officials at the Labour Department Balochistan shared with SPARC’s representatives that in 2011 they have not conducted any inspections under the ECA or any other laws.

According to the details provided by the Labour Directorate Punjab, in 2011, 70,308 inspections were conducted and 875 prosecutions were done under the ECA but it cannot be maintained that weather all inspections were conducted under the ECA or not. In 2010, 107739 inspections of factories and workshops were conducted and 1,671 prosecutions of employers were done. This data reflects that the labour system is active, and it is monitoring the implementation of the ECA and the SEO. It also connotates that inspections are not banned in the province.

According to the Labour Directorate Khyber Pakhytunkhwa, in 2010, 566 inspections of factories, shops and workshops were conducted and 85 cases were lodged against employers under the ECA and other legal provisions of child labour. In 2011 (from January to August), under the ECA and other provisions of child labour, 644 inspections of shops, factories and workshops were conducted in the province which resulted lodging of 85 cases against employers/factory owners.

According to the Labour Department Sindh, in 2010, 1238 inspections were conducted of factories, shops, workshops and only 20 cases were lodged against employers based on issues identified during inspections. In 2011 (January to October) 1038 inspections were conducted and no case was lodged against any employer.

Child population and child labour figures

The Pakistan Economic Survey estimates that in 2010, there were 82.05 million children and adolescents from 0 to 19[10] years old, which will gradually increase as 84.28 millions, 86.88 millions, 88.86 million and 87.05 millions in 2015, 2020, 2025 and 2030. From 1998 to 2010, in 12 years time, about 28.28 million children and adolescents have increased; whereas from 2010 to 2030, in 20 years, only 5 million children will be added into the total existing population. It signifies a slow population growth rate as well as birth rate which will ultimately contribute in the eliminating of child labour. The uncontrolled population growth has been considered one of the major reasons of increase in child labour.[11]

According to the Labour Force Survey, from the total estimated labour force (54.92 millions in 2009-10)[12], 12.6 and 37.1 percentages were of child and adolescent participation from the age group 10 to 14 and 15 to 19 [13], respectively. However, the Survey as usual does not include estimates of child participation in the labour force below 10 years of age. There is also confusion in the age group from 15 to 19; it should be from 15 to 18 so that proper estimates could be made. According to the NCLS, there were 3.3 million of the 40 million children (in the 5-14 years age group) to be economically active on a full-time basis in Pakistan. The NCLS also did not mention about details of children between 15 to 18 years of age. If the NCLS would have included figures about age group 15 to 18, it can safely be estimated that in 1996, there would have been more than 6 million children [14] engaged in child labour.

A researcher [15] in his presentation at Children Complaint Office (Islamabad) shared that in 2011, about 9.86 million persons from the age group 10 to 19 years were engaged in labour in comparison to 9.89 in 2010. In 2011, there were estimated 2.58 and in 2010, 2.72 children working as labourers.

With given population growth, disasters (earthquakes, floods and wars) over the last 12 years and increasing poverty, in 2011, child labour from 4 to 9 years of age have must have reached up to five millions. If we add these estimated five millions into estimated 9.88 million child and adolescent labour, there would be about 14.88 million child and adolescent labourers including persons who are in the age year of 19.

Child Labour in Punjab

By virtue of 18th Amendment, Punjab adopted the Employment of Children (Amendment) Act 2011 (X of 2011) but it did not include any provisions proposed in the Employment Service Conditions Bill 2009.

There are no accurate estimates of children engaged in child labour in Punjab. However, the researcher shared that in 2011, 5.88 million persons from 10 to 19 years of age group engaged in labour in Punjab; whereas in 2010, the number is lower, 5.70 million persons were engaged in labour. Table 2 does not have figures about children engaged in children labour below 10 years of age. In 2011, there are estimated 1.50 million children from the age group 10-14 in comparison to 1.49 million in 2010.

In the NCLS, Punjab had highest number of child labour (1.96 million) which implies that the number of child labour has increased more than three times.

Surgical Industry and Soccer Ball

Surgical industry is one of those industries that involve worst form of child labour but it has been reported that the ILO’s campaign against child labour has badly affected the surgical industry in Sialkot. The Industry is a major contributor in the economy.[16] In England, the National Health Service has been asked to adopt new guidance on purchasing surgical instruments from Pakistan because it involves child labour.[17] According to Child Rights Committee Sialkot’s Coordinator [18], before 2011 employers were reluctant to employ a child in the surgical industry therefore engagement of children in this sector has reduced up to 50 percent. Now, the employers are seeking services of children due to shortage of electricity. Since machines are off most of the time, therefore, there has been observed a little shift from mechanical to manual work which require nimble fingers and fast work.

Due to power shortage, there has been observed similar trends in the soccer ball industry. The industry has been moving into private homes, therefore, difficulties to monitor child labour insider homes.[19] A newspaper reports says that child labour menace has totally been wiped out from the soccer ball industry but on the other hand it denounce to state that there is dearth of skilled workforce.[20]

Five years pilot project by Punjab

In 2011, the government of Punjab has signed a-five-year pilot project with the ILO to combat child labour in four districts of Punjab which includes Jhelum, Chakwal, Layyah and Jhang. The pilot phase would cost Rs180 million from the government Annual Development Programme whereas the ILO would provide technical assistance.[21] It is the first time any provincial government has taken initiative to such extent which is comprised of literacy services, skill development, model workshops and micro-crediting schemes. Literacy centres will be established in target areas to facilitate enrolment of children most prone to worst forms of child labour. The project is aiming at enrolment of about 2,000 working children under the age of 14 in non-formal literacy centres. Also about 2,000 from the higher age group would be imparted literacy and skill training.

The civil society organizations are skeptical of the project’s capability to bring a reasonable change in the larger picture. Both, the ILO and the government, have to look into the issue of imparting skills to adults. Besides skills adults must be encouraged to undertake economic responsibility of their families instead of burdening their children with it. Therefore there is need to ensure that these million rupees project is made sustainable in the longer run.[22]

Under the ILO-IPEC project Combating Abusive Child Labour-II, the Provincial Child Labour Unit has been established [23] in the Labour and Human Resource Department in Punjab. This is responsible to monitor the implementation of provincial level child labour elimination programmes [24]. It is working to enhance the capacity of government officials and to establish community based child labour monitoring system in five districts. It is also responsible to “coordinate and provide support in implementation of laws, policies and programmes pertaining to child labour in the province; to evolve, test and implement a district-based system to eliminate Worst Forms of Child Labour in selected districts; Establishment of a Child Labour resource Centre to build a knowledge base on child labour and facilitate research as well as networking of stakeholders to address child labour”. [25]

Child Labour in Khyber Pakhtunkhwa

In 2011, the Labour Department, Government of Khyber Pakhtunkhwa, was consulting with relevant stakeholders for adopting or amending the ECA 1991. The draft bill (prepared “Khyber Pakhtunkhwa Prohibition of Employment of Children and Regulation of Conditions for Work of Adolescent Act, 2011”) has been prepared by the Department. At many forums, it was given the impression that the Department would adopt the ECA without any changes. However, civil society expects that Department would comply with the ILO’s Conventions 138 and 182 and Article 25-A of the Constitution; would prohibit child labour below 16 years of age and prohibit employment of children below 18 years of age in all hazardous occupations and processes including child domestic labour.

In the NCLS 1996, 1.06 million children of age group 5-14 were engaged in child labour. It does not mention children from 15 to 18 years of age.

According to the latest estimates (shared by the researcher), in 2010, 1.13 million children and adolescents from 10 to 19 years of age were engaged in labour in Khyber Pakhtunkhwa. In 2011, the number has decreased to 1.01 million labourers. In 2011, there are estimated 0.30 million children from 10-14 and in 2010, 0.25 million children in child labour.

The government of Khyber Pakhuntkhwa is worried about increasing child labour due to internal and external factors which includes unending war and floods.[26]

The government of Khyber Pakhukhwa has allocated Rs14 million for the eradication of child labour [27]. It has also established the Child and Bonded Labour Cell in the Directorate under the ILO-IPEC project. The Cell is responsible to oversee the activities carried out under the project. Also a Legal Aid Service Unit (LASU) has been established in the Child & Bonded Labour Cell to provide legal assistance to labourers subject to bonded labour.[28]

Child Labour in Balochistan

The 1996’s NCLS says that there were 13,723 children (from 5 to 14 years). But estimated figures reveals that in 2011, there were 45,417 child labourers from the age group 10-14 and in 2010, there were 41,091 child labourers. These news estimates are three times more than the estimates given in 1996 even the fact that recent estimates do not cover children of age group 5 to 9. It indicates that a labour participation rate of age group 10-14 years has increased in 2011. In 2010, there were estimated 0.3 million persons (children and adolescents) for age group 10 to 19 engaged in labour whereas in 2011, there were 0.36 million persons engaged in labour.

Under the ILO-IPEC project, a Provincial Coordination Committee on child labour has been established in Balochistan that would give policy advice on child labour issues to the provincial government and its associate departments. In addition, Child Labour Unit in the labour Directorate has been constituted.[29]

Children in Balochistan are engaged in all kinds of labour. They are seen domestic servants, street hawkers, daily wage labourers, shop/workshop assistants, carpet weavers, garbage pickers, beggars, cleaners in buses and vehicles, shoe-polishers and carpet weavers. They are found in mechanical workshops, mines, deep sea fishing, and brick kilns as well. The team shared that most of the work on streets of Quetta is being done by Afghan refugee children. Very minor Afghani and Hazara communities’ children are engaged in carpet weaving- the most hazardous work that affects children’s health and deprive them of development and other fundamental rights. Mines in Pishin and Qilla Saifullah of Balochistan: (details of the mines are taken from the field visit conducted by Nadir Khoso then the employ of SPARC)

In November 2011, SPARC conducted a brief survey (mainly interviews with children and some interviews with adult workers) on the status of child protection in mines in Khanozai (district Pishin) and Muslim Bagh (district Qilla Saifullah).

Survey in Khanozai-Pishin: Hayatullah, 13, and Baz Muhammad, 12, are Afghan refugees. Since October 2010, they were working in a coalmine in district Pishin. Their families had migrated from Afghanistan some 15 years ago, now thay are living nearby Khanozai, district Pishin. They work inside the mines; fill sacks and load those on trolleys. They work from 8am to 2 pm and get Rs.100 each against one ton which they load on trolleys.

Hakimullah, 16, is also an Afghan refugee. Except his elder brother, his family was in Afghanistan. He and his elder brother both worked in the chromites mine. The work Hakimullash did was, digging mine for search of chromites. He got Rs.300 per foot.

Baraat Khan, 10, also from Afghanistan, worked along with his father and elder brother in the mine. His father and brother were working inside the mine and he was working outside the mine to pick the mud, gravel and stones trolley and dropped those away from the mine. He worked from 8am to 5pm and received Rs.5000 per month which he gave to his father. Baraat said, he wanted to go to school but could not because his family kept travelling between Pakistan and Afghanistan. They lived six months in Pakistan and six in Afghanistan.

Asmatullah, 15, and Akhtar Khan, 17, were also Afghan refugees. They worked inside the mine from 8am to 3pm and received about Rs250 per day.

Asmat, 08, Mohammad Ismail, 07, Shah Wazir, 09, and Sahibdad, 06, were also Afghani refugee children. Their families lived around Khanozai city. They used to come in the morning to mines; the contractors assigned them to segregate mud from chromites. They worked from 8am to 3pm and received Rs.100 each every day. They shared that they all attend Madrassa early in the morning and then come to work at mines.

During interviews with children a number of hazardous things were noticed which noise pollution (generators and pulling machines), dust (everywhere), absences of safety tools (safety jackets, hamlets, proper shoes, glasses to cover eyes and mask), long working hours, non-availability of clean drinking water, low remuneration to children as well as to adults (no minimum wage).

The adult workers shared that there had been several accidents and injuries of children and adults for which the contractors have never taken responsibility. They said that they had not seen labour inspectors visiting mines. These mines were unregistered and occupied by influential.

Survey in Muslim Bagh-Qila Saifullah: Nimatullah, 16, is resident of Loralai and was working in mines for the last two years. He worked inside the mines, filled chromites in sacks and loaded those on the trolley. He lived by the mine in a small hut provided by the contractor. After 2 or 3 months, he visited his family. Besides, accommodation, the contractor provided him three times meal and tea without any charges. He received Rs.7500 per month and worked 7 hours in a day.

Rafiq Khan, 17, is resident of Muzaffargarh (Punjab), also worked in the same mine with Nimatullah and lived at the same place and received same services and wage from the contractor. Rafiq had been working at a mine for six months. He worked inside mine and dug for chromites. He also lived by the mine.

Shaukat Ali, 16, and Sabir, 17, had come from Swat and working at mine for one year. They worked inside the mine: Sabir dug the mine and Shaukat filled chromite in sacks and loaded those on the trolleys. Like Nimatullah and Rafi, they lived by the mine and received the same wage and accommodation from the same contractor.

Abdul Razzaq, 15, was an Afghan refugee and lived day and night on the site. His family lived in Muhajir Camp in Muslim Bagh city. He worked inside the mine; filled sacks and loaded those on trolleys. He received Rs.7000 per month and visited home on every weekend.

Abdul Qayyum, 12, and Wali Zar, 15, were Afghanis and they came from Muhajir camp in Muslim Bagh city. On weekend they visited homes. Qayyum was working at mine for 5 months and Wali Zar 2 years. They also worked inside the mine; they filled sacks, loaded those on donkeys and drop sacks outside the mine. They received Rs.6500 each per month.

The status of health and safety at mines in Muslim Bagh was no way different from mines in Khanozai. Children were working in hazardous conditions. In addition to conditions stated at mines in Khanozai, children at mines in Muslim Bagh were far from the town, therefore, accessing health and other services was difficult. At the same time, they had problem to transportation. The most serious element was chances of sexual abuse of children since they were living with adults on the site.

It was informed that children and adults received injuries from accidents but they did not receive any medical assistance from the contractors. These mines were also occupied and government officials never visited them.

Coal mines of Suranj and Margat: Zubair, 15, belonged to Lower Deer Khyber Pakhtunkhwa. His father and two elder brothers were also working in the mine for the last ten years. He joined his father and brother two years ago but he had to quit school. He brought trolley from inside the mine, picked sacks from trolley and dropped the coal on ground. It was difficult and risky work because sacks were heavy loaded and the coal was polluted by dust. He received Rs.30 for unloading a trolley. Each trolley had four sacks on it. Every day he made about Rs150.

Ayaz Khan, 14, had come from Swat (Khyber Pakhtukhwa). His family was living nearby the mine. His father was working in the same mine for 13 years. Like Zubair, he brought trolley from the mine, picked sacks from trolleys and dropped the coal on ground. He received Rs100 per day.

Saleem Zeb, 16, and Mubarak Zeb, 12, were both brothers. They belonged to Lower Dir (Khyber Pakhtukhwa). They lived with their family by the mines; their elder brother was also working at the mine for the last 6 years. They both gave up going to school. They were asked to support their brother. Saleem worked as cook in the mine- prepared lunch and two times teas for about more than 50 people. The contractor gave him Rs.5000 per month which he gave to his brother. Mubarak helped Saleem in serving meal and teas to the labour and other concerned persons. He received Rs.1000 per month. They were doing a hectic job of cooking and serving and exposed to dust and polluted air of the mines.

During visit and interviews, it was observed children did not use any of the safety measures while working on the site and in the mines. They said they were not provided gloves, masks and glasses. They were also not aware of the hazards of working in the mines. Children and adult labourers informed that there were no education and health services or facilities. There is no dispensary and first aid facility. The clean drinking water was not available to all on the site.

They said children and adults are exposed to dust and they work more than eight hours like adults. It was informed, as well as shown, widely spread of skin diseases.

The labourers complaint that they even are not provided minimum wage and they have never seen labour inspectors visiting the mines.

By the mines, there was depot of coal where trucks were load. A lot of children were working there; some were loading sacks filled with and also coal without sacks on trucks and some children were segregating mud and stones from the coal.

Interviews were conducted with Shamsullah, Juma Gul, Adnan, Amanullah and Muhammad Din who ranged from 8 to 12 years of age. They were segregating the coal from mud-stones. Each child received Rs.50 for cleaning a truck of coal. They told that they made Rs.100 every day which means they cleaned coal of two trucks. As the sun rise, these children joined the depot and went back to their nearby homes by 5pm. Children shared that they have never been to schools due to family problems. They did not use clothes to cover their faces. They were inhaling coal dust directly.

Dilawar, 17, and Sanaullah, 16, were loading coal on the truck along with other adult labouers when SPARC team reached there. They worked from 8am to 4pm every day except Thursday. They received Rs.100 each per truck. They shared they loaded two trucks in a day. Dilawar has shared that he had never been to school because his father and elder brother did not allow him. Whereas Sanaullah informed that he was going school but left in grade four for supporting his family. They used clothes to cover their faces from the coal dust but their eyes, hands and legs were not covered with anything, therefore, exposed to the dust.

Children informed that they worked long hours and were not provided food/meal by the contractors. They showed their affected hands and legs of skin diseases.

Child Labour in Sindh

According to the NCLS 1996, 0.3 million children were working in Sindh. The Labour Force 2010-2011 and population [30], estimates that from the age group 10 to 19 [31], there were 2.69 million and 2.60 million persons engaged in labour in Sindh. It signifies that child and adolescent labour has decreased in Sindh. However, there are no accounts about children from 5 to 9 years of age. It is estimated that there were 0.88 million children from the age group 10-14 years engaged in child labour in 2011, in comparison to 0.77 million children in 2010.

Sindh Child Protection Authority Act, 2011: On 9th June 2011, the Sindh Child Protection Authority Act 2011 was enacted but by the end of 2011, the government has neither had established authority nor notified Rules of the Act. The Authority besides many other measures was responsible for the protection of child labour from the forced labour, exploitative labour, beggary and human trafficking within and outside of Pakistan.

The Sindh Children Act 1955: The Sindh Children Act has hardly been implemented but with reference to child labour there are no accounts of it is being implemented. The SCA prohibits exploitation of child as labourer under Section 59. It says that a child can be employed for the purpose of menial employment or labour in a factory or other establishment but cannot be exploited for his/her own interests. It further defines the term exploitation which may include exposing a child to the risk of seduction, sodomy, prostitution or other immoral conditions. Against such exploitative actions, the law provides nominal sentences and fines. Upon conviction, may be imprisoned for a term which may extend to two years or with fine which may extend to Rs 1000 or with both. That is the maximum, the law offers punishment. Section 49 of SCA prohibits employing a child for the purpose of begging or causes any child to beg. Upon conviction, it provides punishment with imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs 300 or with both. The law needs to be amended and more stringent provisions may be introduced to end exploitative child labour and child begging.

Like other provinces, Sindh province has also established a Coordination Committee on Child Labour and Child Labour Unit. The Committee will provide policy advice on child labour issues and the Unit will monitor the implementation of provincial level child labour elimination programmes.[32]

Under the ILO-IPEC project, the Child Labour Committee and Child Labour Unit have been established to monitor progress of the project and facilitate the project in carrying out its activities, whereas, the Government of Sindh has not done to implement the ECA. According to the Labour Directorate since 1991, 1038 inspections were conducted under the ECA. The Labour Unions has been demanding for a long time to remove ban on the labour inspection. It has also been reported that there is no ban on the inspection but it is obligatory on the inspector to intimate the employer about his/her visit some days before.

Child Labour in fishing in Sindh and Balochistan [33]

Pakistan’s fisheries sector- inland and marine- covers rivers and their tributaries, canal irrigation system, natural lakes, storage reservoirs and small and large size ponds, and coastal and deep sea fishing.[34] The coastal and deep sea fishing[35] is done along the 1,120 km coastline of Sindh and Balochistan, of which about 70 percent falls in Balochistan.[36]

According to the Economic Survey of Pakistan 2006-07, about 0.4 million fishermen and their families were depending on the fisheries for the livelihoods.[37] In Sindh, fishing communities are settled in the coastal areas of Badin, Thatta and Karachi where as in Balochistan, they mostly reside in Gawadar, Pasni, Jiwani, Ormara, Kalmat, Sur, Sonminai, Damb, and Gadani districts.[38] It was also estimated that about 16,000 fishing boats were operating in the waters of Pakistan’s coast, on which, a number of children were engaged.[39]

There are seen thousands of children engaged in both inland and the marine but the majority is seen in the marine fisheries and its auxiliary activities. There are just small surveys and assessments on child labour in fishing; however, there is no substantial information or data on number of children involved.

In December 2011, SPARC conducted a brief survey of Ibrahim Hyderi port, one of the major hub of fishing communities where hundreds of children ranging from 6 to 18 were seen working to repair and clean boats and net, as well as engaged in loading fish on Suzuki Mazdaz. Also a significant number of male children aged 5 to 13 years, mostly of Bengali origin, were working as trash fish pickers on the roads of Ibrahim Hyderi where loaded trucks moved from the harbour to trash fish drying shelters. Many children were reported injured while running after vehicles to collect trash.

Mumtaz Merani, 13, resident of Irahim Hyderi, said he worked to clean boats and repaired nets and went for fishing in sea. He worked on a medium size boat with 15 to 25 fishermen on it. Everytime, he said, there are five to eight years old children age of 12 to 16 years of age. He received 200 to 300 rupees for each visit in the sea.

Muhammad Sheikh, 17, with rupture hands, had been working at the main bridge of the port for the last 10 years. He shared that when he was 7 years old he came to the port at the time of morning prayers and cleaned shrimps. At that time, he received Rs50. Then, after some years, he joined a boat for fish expeditions in sea and still doing it. He made about 350 a day from a visit. He further informed that he has now hired an assistant namely Husain (13), who had replaced him and come to work early in the morning to help him. He further stated that Hussain worked 14 hours a day without any break because he has to be like him.

Imran Baloch, 12, said we have no concept of school and education, because we go to deep sea for fishing; this job requires to work round the clock; after returning from expeditions it is hard to think about other things than sleeping. Having finished one trip they think about the next one and have to get ready for it.

A baseline survey [40] conducted by the government and ILO, estimated that only in the Gadani area of Balochistan, there were about 2,500 child labourers from the age group 5 to 17 years who were working on fishing boats. It reports that children worked 10 to 12 hours a day which also involved night time fishing. The survey confirmed about the physical and sexual abuse of children on boats during deep sea fishing. Besides it, children and adult fishermen were exposed to risks of health and life.

The ECA does not adequately cover child labour in fisheries because it falls under informal agriculture which does not come in the ambit of labour inspectors. The fishing as occupation or deep sea fishing has not been declared hazardous in the ECA.

As the UN has declared fishing at sea the most dangerous and hazardous occupation because each year more than 24,000 fatalities are reported mostly among unregulated fleets of boats on which children below 18 years are recruited[41] and Pakistan is one of those countries which does not comply with the ILO’s Conventions on Minimum Age, Worst Forms of Child Labour and Medical Examination. Each year thousands of fatalities occur but many go unreported [42] because of unregulated or informal fleet of fishing boats.

Over the time, the ILO has adopted some direct Conventions to deal with engagement of children in fishing, mainly fishing in Sea, which are: C77 Medical Examination of Young Persons (Industry) Convention, 1946; C7 Minimum Age (Sea) Convention, 1920; C16 Medical Examination of Young Persons (Sea) Convention, 1921; C58 Minimum Age (Sea) Convention (Revised), 1936; C112 Minimum Age (Fishermen) Convention, 1959; C134 Prevention of Accidents (Seafarers) Convention, 1970; C138 Minimum Age Convention, 1973; C188 Work in Fishing Convention, 2007.

ILO has introduced conventions with regard to minimum age in a number of ecobomic sectors such as industry, agriculture, sea, trimmers and stokers, non-industrial employment and underground work, but it lacked a general instrument applicable on all subjects. Therefore, the ILO introduced the C138 Minimum Age Convention, 1973 which covers all sectors of economy including fishing and stress on the total abolition of child labour.

But there is little confusion about the ILO’s approach. In C138 (Article 3(1)), it says that “the minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardise the health, safety or morals of young persons shall not be less than 18 years.” Besides, the ILO recognizes the fishing as the most dangerous occupation whereas in the Convention-188 (Article 9) Working in Fishing -yet not ratified by Pakistan- it allows the competent authority to employ a 15 years old child but with a condition that the child is no longer subject to compulsory school as provided by national legislation. However, under Article 25-A, the education is free and compulsory for children from 5 to 16 years; therefore, no competent authority shall allow the child to work in a fishing boat.

A child support programme and child labour rehabilitation centers by Bait ul Maal [43]

Pakistan Bai ul Maal (PBM) claims that it has been running 158 National Centres for Rehabilitation of Child Labor (NCRCL) with more than 19,372 students in different parts of Pakistan. An amount of Rs1, 400 million has been utilized since inception of these centers.[44] PBM also with the help of the World Bank and other donor organizations have been running a Child Support Programme (CSP) since 2007 in which it has been providing cash (financial support to families so that poor families do not sent their children to work. In 2011, in three selected districts (Bhakkar, Tharparkar and Kohistan), 6158 families (beneficiaries) were provided Rs9, 798,624. The cash incentive was provided on quarterly basis which ranged from one child 300 and two or more children Rs.600. PBM claims that from 2007 to 2011, it has distributed Rs.88millions among around 12000 households having 35,700 children.[45]

Non compliance of the minimum wage policy increases child labour

The government had fixed Rs7000 as minimum wage for workers but is not applied in informal sector of economy [46]. The General Secretary PWF, Mr Zahoor Awan, said [47] that child labour can be eliminated if proper minimum wages are given to the adult workers. He said in the brick kiln (an informal sector) usually a semi-skilled family (comprised of husband, wife and children) work for an employer. If the work is regulated under the ILO’s proposed standards, and husband and wife each are given minimum wage about 7,000 they would easily make 16 thousands per month, which can be an ample amount to live a reasonable life and their children below 14 years can go to school. At the same time, they would not be trapped into debt bondage.

It has also been reported that even in the formal sector, minimum wage is not given. Such case was highlighted in Khyber Pakhtunkhwa. The Peshawar Development Authority had been paying only Rs4000 to each of its 1400 employees which includes watchmen, gardeners, tube-well operators, sweepers and some clerical staff. [48] Since every year millions of children join the labour and compete with adults for whatever work is available. Therefore, “a surplus of cheap child labour has reduced the already inadequate adult wage to the point where a parent and child jointly earn less than the parent alone used to previously earn”. [49]

The ECA 1991 inconsistent with the Constitution

The ECA’s provision is inconsistent with a provision of Article 11 (3) that says that “No child below the age of fourteen years shall be engaged in any factory or mine or any other hazardous employment” whereas the ECA regulates the conditions of work in the factory below 14 years. The ECA borrows definition of the factory from the Factories Act …which defines factory “means any premises, including the precincts thereof, wherein ten or more workers are working or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on or is ordinarily carried on with or without the aid of power but does not include a mine, subject to the operation of the Mines Act, 1923 (No. IV of 1923)”. The Factories Act 1934 also prohibits employment of the child in any factor who has not completed his fourteen year (Section 50). For a number of years, this contradictory provision has not been realized and corrected by any. This provision must have created an impression among the provincial labour departments that children can work in the factory.

Under Section 5 of the ECA 1992, the Government had to establishment a National Committee on the Rights of the Child which had to perform functions visualized in the United Nations [50] Convention on the Rights of the Child. In its composition a Chairman had to headed ten experts. In 2000, the National Committee on the Rights of the Child was established but remained but did not perform ant functions as stated in Section 5 of the ECA.

The Right to Social Security Bill 2010

In 2010, a private member Bill ‘the Right to Social Security’ was introduced by Professor Khursheed Ahmed and others in the Senate. The Bill seek amendment in the Constitution of Pakistan, if passed would be called the Constitution (Amendment) Act 2010 through which a new article has been proposed to insert, namely:- "19-B Right to Social Security- (1) Every citizen shall have a right to social security which includes provision of such financial resources or basic necessities like food, clothing and health cover through a system of national security service. 2) The state shall take such steps which are necessary to enforce the provisions of clause (1) of this article, within period of five years. 3) In the absence of steps required under clause (2) a person, in need of necessary social security cover, may approach the Session of the district or the nearest Judicial Magistrate who shall refer his case to concerned authorities for immediate relief without any delay." [51]

Where the Bill make social security a mandatory and part of fundamental rights there it offers legal remedy in case if one is unable to get social security. This provision in the Constitution will also be a step towards eliminating child labour and bonded labour. This provision will also be in consonance with the International Covenant of Economic Social and cultural Rights that Pakistan ratified in 2008.

War breeds child labourers

War either declared or undeclared brings every bad thing with it for all but most worst it brings for children mainly in that scenario when bombings or attacks robbed them off their fathers or other breadwinners in the family. Zabita Khan, 7-year-old, is one of those children whose father was killed in a bomb attack some two years ago. A news reporter saw him working “all afternoon, dodging vehicles, rickshaws and donkey carts to carry drinks for thirsty customers in a hot”, crowded market in Peshawar[52]. Zabita worked at non-the-other-place but of his uncle’s restaurant. When the news appeared in the newspaper, Zabita started going to school because a number of individuals including SPARC started approaching his uncle for helping the child. His uncles realized the mistake of taking work from Zabita and promised to provide education to him. However, it is not sure for how long Zabita will be supported if his family remains un-helped by the state. It is feared that in coming days he may leave education to support his mother and three younger brothers, i.e. Sajjad, 5, and Arif, 3.[53]

An 11-years-old girl, Wajiha, famous for rickshaw driving, is another victim of war whose father, Inamuddin, was seriously injured in a Taliban attack on the paramilitary check post in Swat. After two years in hospital, when Inamuddin was discharged from service, he had only a leg to stand up on. In his native town Tangi he bought a rickshaw for 40,000 rupees with his pension. Wajiha used to sit up with his father for enjoyment but very soon she realized difficulties and pain his father was going through because of the wounded leg. She quickly learnt to drive and started taking passengers on her own for making money but in the afternoon when her father his tired. In the morning she goes to school. Inamuddin did not feel good about her minor daughter driving a rickshaw but feels helpless.[54]

An NGO’s representative remorse that neither government nor NGOs are determining statistics about children forced to work when bombs and attacks have robbed off of their breadwinners.[55] Each year thousands of people die of attacks and bombs but no one knows how many of their children are left with no resource and help. In cities like Quetta, Karachi, Lahore, Islamabad, Rawalpindi and Peshawar, the number of children on street has soared. In 2010, a research revealed that due to war in Afghanistan and Northern part of Pakistan, the situation of street children has badly deteriorated and the phenomenon of child labour and street children has increased.[56]

The ongoing war in FATA and other parts of Khyber Pakhtunkhwa has displaced and deprived thousands of families from their homes and livelihoods. The government of Khyber Pakhtunkhwa admits that war has been a big challenge for eradicating child labour. It is estimated that from the total five million population of FATA, 17 percent (850,000) are children. Of the total children population, about 10 (85,000) percent are victim of displacement due to terrorism.[57] Therefore, children of displaced families are forced to work so that their families could survive. Their families have to pay rent and utilities bills and pay both ends meet. They do all kinds of menial labour such as shining shoes, selling fruits and vegetables, and working in hotels and automobile workshops.[58] Life is not good to those children who have travelled back to their homes along with their families to areas where peace has been restored. It is being reported that with the restoration of peace in Swat valley, people have returned to their homes which has given significant rise to child labour especially they are seen engaged in activities which do not involve financial investment.[59]

Home Based Workers and child domestic labour

The year 2011 is marked an important year for home based or domestic workers. Keeping in view the plight of domestic workers, the ILO adopted new treaty namely Convention- 189 Decent Work for Domestic Workers in June 2011[60].

This Convention also recognizes contribution of children as domestic workers in the global economy as well as the plight of children working in homes for extremely long hours for little or no pay. In Article 3 (2) (c) it says that each member State shall take measures set out in this Convention to respect, promote and realize the fundamental principles and rights at work, namely: (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour.

Article 4 states that those countries which ratify this Convention will have to “set a minimum age for domestic workers consistent with the provisions of the Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No. 182), and not lower than that established by national laws and regulations for workers generally”.

After the ratification of this convention, it would require the Government of Pakistan to include child domestic workers under the ECA and to step in to prevent them from being exploited, abused and killed in the hands of their masters.

In Pakistan civil society working for the rights of home based workers are hardly speaking in favor of banning child domestic labour. For instance, Home Net Pakistan is big network of NGOs working for the rights of home based workers, had conducted a baseline survey on HomeBased Workers of Bangle Industry in 2009. The survey report recognized that girls under 10 years are engaged in this sector and five years old children “work for eight hours in the dark rooms and unhealthy environment of congested rooms of their houses”.[61] But the survey does not recommended to ban child domestic labour in bangle industry.

However, there are some developments in 2011 in two provinces. In October 2011, the Government of Punjab had constituted a provincial council for Home Based Workers headed by Adviser to Chief Minister Begum Zakia Shahnawaz and Sardar Zulfiqar Ali Khan Khosa which had to finalize the policy and legislation for HBWs within three months of its constitution.[62] By the end of 2011, the council was unable to comply with its given prime mandate. Similarly, in September 2011 in Sindh, a Provincial Task Force was constituted by the Ministry of Labour mainly to review existing legislation and propose new policy and plan of action [62] by the end of 2011 there were little progress achieved by the Task Force. Since some child rights organizations are members of the council and committee, it is being hopped that when the policy is being discussed, reviewed and finalized, child domestic labour would be integral part of it. However, the policy draft prepared by the Labour Department Sindh did not recognize existence of child domestic labour, therefore, there were proposed no policy recommendations in the draft for banning and eliminating the child labour.

In 2011, 11 cases of child domestic workers’ abuse, torture and death in the hands of their employers were reported in different newspapers and 07 of them were reported dead. Of these, 09 were girls from the age group 5 to 18 years. From the total 09 were reported from Punjab and 02 from Sindh.

In 2011, however, the first case of abuse and exploitation of child domestic labourer was reported from Sindh. In Karachi, Sonia, 10, was working as maid in a house for two years. She was mentally and physically tortured by her employer. One day, she ran from the employer’s house and came on the street. A passerby took her to the Gulberg police station where he parents were called from Chichawatni-Punjab [63].

Saadia Bibi’s 10 year old daughter works as housemaid in a house in Karachi. Her daughter looks after a two year old baby and does other house chores. However, Saadia said that she is worried about her daughter for a reason. “Last month, in Multan, a young girl about the same age as Saadia’s daughter was working as a maid in a house and was brutally tortured because her employers believed she was possessed by evil spirits.” 64

According to AASHA- an NGO working for women rights- more than 90 per cent of female domestic workers suffer sexual abuse.[65]

Child Domestic Labour Study: “Hidden Servitude- Child Domestic Labour in Pakistan”

‘In lieu of the increasing trend of child domestic labour (CDL) in the country, SPARC has conducted nation-wide exploratory research to provide a snapshot of the present conditions, preoccupation and needs of the child domestic workers (CDWs). The study was carried out in Islamabad (the federal capital) and four provincial capitals; Lahore, Peshawar, Quetta and Karachi. Due to difficulty in accessing the required number of CDWs in Lahore and Peshawar, the cities of Sargodha and Mardan were included in the study.

Research findings revealed that CDWs are mostly children between the ages of 10-14 years, some of whom started work at a much earlier age, even as young as five. The majority of these are girls. Most CDWs have had no opportunities to go to school. The wide range and nature of exploitation is evident from the long working hours, wide range of duties, lack of rest, breaks and days off and the low pay scales. The early and formative years of CDWs are marked by exploitation, discrimination, violence and neglect. The fact that employers prefer younger children is mainly because of the control they can exercise over them and the fact that they can get children to work for low wages.’

Documentary on Child Domestic Labour: “I have a Dream”

‘In view of the stronger impact of visual media to challenge the denial and silence around various social issues, a documentary on child domestic labour was also prepared. The documentary was filmed in Islamabad (the federal capital), Lahore, Mardan, Quetta and Karachi. The documentary aimed to generate a dialogue and to make something visible that is deliberately being hidden within the four walls of home. Furthermore, it is intended that this documentary will be useful as a tool for advocacy by raising public awareness on the issue of CDL. The documentary revealed the violations of the many rights of CDWs including their right to health, proper nutrition, education, protection and recreation. It exposed the lack of any legal protection or specific laws for preventing and eliminating CDL in Pakistan. Furthermore, it revealed the leading factors for the high prevalence of CDL including poverty; inadequate educational facilities and lack of awareness about the negative consequences of this sector.’

UNICEF and ILO’s initiatives

UNICEF and the ILO both UN Agencies are running programmes to combat with poverty and child labour in Pakistan. UNICEF is particularly supporting education programmes for changing life of girls and boys “who are who are caught in the cycle of intergenerational poverty, child labour and illiteracy” [66].

ILO-IPEC Pakistan with the financial assistance from the European Union (EU) is implementing the “Combating Abusive Child Labour II” Project. The project is being implemented in close collaboration with the Government of Pakistan under the National Time Bound Programme Framework (NTBP), 2008-16 which forms a part of the National Policy and Plan of Action to Combat Child Labour (NPPA-CL).

In 2008 the ILO has launched a time bound programme the “Combating Abusive Child Labour II”. It aims to contribute to the Government’s efforts [67] to eliminate child labour including the worst forms of child labour. It will also help Pakistan in achieving the ILO’s global goal on eliminating all worst forms of child labour by 2016. Under the objective one of the programme: 6500 children and their families had to be targeted in two districts of Pakistan Sukkur and Sahiwal. In both districts the projects were launched in December 2009 and March 2010 respectively and implemented by National Rural Support Programme (NRSP) and Provincial Rural Support Programme (PRSP).[68] According to the ILO, the programme has three components:

1- At local level children in worst forms of child labour will be identified and provided with alternative opportunities for eructation and vocational trainings. Families of such children will be connected with available safety nets, credit providers and health services;

2- Capacity building of district, provincial and federal governments;

3-Facilitate the building of a dynamic knowledge base to inform policy and to create increased awareness in order to ensure a favorable climate to support efforts directed at addressing child labour.

Progressive Indian child labour law

As usual Pakistan followed Indian legislative step taken to prohibit certain occupations and processes in the arena of child labour and to regulate child labour in other than the banned occupations and processes. In 1979 Gurupadaswamy committee was constituted to study the phenomena of child labour and recommended measures to tackle it. The Committee recommended introducing a law that could prohibit and regulate child labour. Based on the committees recommendation, the Child Labour (Prohibition & Regulation) Act was enacted in 1986.[69]

Pakistan followed India and adopted the same law. In India, the Child Labour (Prohibition and Regulation Act 1986 repealed the Employment of Children Act 1938 [70]. In Pakistan, the Employment of Child Act 1938 was repealed by the Employment of Children Act 1991 [71]. But over the time, India has progressively expanded the list of hazardous occupations and processes under the Act whereas Pakistan has introduced no amendments in the Act to improve the life of children caught in child labour. Under the scheduled list of banned occupations and processes given in the CLPRA India, 15 occupations and 57 processes are banned whereas under the ECA in Pakistan, only 4 occupations and 34 processes are declared hazardous and banned.

Children working in Naswar factories in Islamabad

On 28th July 2011, during a visit of Deputy Superintendent Police, Crime Range Rawalpindi, a SPARC’s representative [72] learnt about a case of three children below ten years of age who were tortured by the owner of a Naswar factory in Islamabad. Upon receiving details, a visit was paid of Tarnol police station in Islamabad. The Investigation Officer of the case was contacted who shared that the owner of the factory was striving to compromise with the families of victim children and families had asked the IO to stop further investigation of the case.

On August 4, a team visited Mohalla Farooq-e-Azam (Tarnol), met with children, children's relatives, conducted their interviews, saw bruises (torture marks) on their bodies.

Children and their relatives informed three children were tortured on the pretext that they had taken a day off. The concerned police officer did not take action against the culprit/employer because the employer approached the family and requested to dissolve the matter and paid Rs2000 to each child and a goat to the family of children. Family of children asked the police officer not to proceed in the case. Names of the victim children are: Mujahid son of Zaitoon Khan, Khalid son of Zaitoon Khan and Liaqat son on Sheir Mohammad. They live in the same Mohalla Farooq-e-Azam.

Children and their parents shared with me that these children used to go to the factory by 5:30 in the morning and permitted to leave by 5 in the evening. They followed the same routine for six days in a week. For about 11 hours’ work, children were paid just Rs2000 and one time meal. They worked in extremely hot weather/conditions without the facility of fan (air) because according to children air from the fan dries Naswar.

Under the Employment of Children Act (ECA) 1991, children below 14 years cannot be employed in tobacco processing and manufacturing including niswar and bidi making. This process is prohibited (banned) for children under 14 years of age because it is hazardous. This is grave child and human rights violations. According to Section 16 of the ECA 1991, any person, police officer or labour inspector may file a complaint of the commission of an offence under the Act.

In light of fact findings letter (Ltr: ED/83/2011) was sent to the District & Sessions Judge, Human Rights Cell- Supreme Court of Pakistan and High Court of Islamabad, the Chief Commissioner Islamabad and Children Complaint Office-Federal Ombudsman.

The Children Complaint Office upon receiving letter from SPARC asked the Director Industries and Labour, ICT, Government of Pakistan, to investigate the case and take actions against the employer if proved. On August 29th 2011, the Director General Wafaqi Mohtasib, along with details provided by the Director Industries and Labour, wrote a letter (No ADLW-/ICT/120) to SPARC that that on the subject matter, the Director Industries and Labour has conducted investigation but there were no children employed in the factory.

Freed and escaped bonded labourers

In 2011, Sindh province was the highest number of bonded labourers released and escaped in both agriculture and brick kiln sectors: In total 624 bonded labourers were released or escaped [73]. There total 70 bonded labourers released through bailiff or police, or escaped from the detention of masters; it includes 26 people from agriculture sector which shows that there is greater probability of more bonded labourers in agriculture in Punjab. From Balochistan and Khyber Pakhtunkhwa no any cases were reported, however, 33 cases have been reported from brick kiln sector in Islamabad. In majority of the reported cases, the police or bailiff were sent to get released families from the detention of owner. From the total reported persons released and escaped, 321 were mentioned as children below 18 years. Beside this two children of 10 years were rescued by police from Punjab, who were kidnapped to work in factories.

Stefan De Vylder- an economist- said that ‘An incompetent Ministry of Finance can do more damage to children than an incompetent Ministry of Education’ [74]. His statement truly fits into Pakistani context. A research states that economic and monitory policies affect children’s rights through two ways: 1) impact on household livelihoods; 2) impact on financing key public services indispensible for child development and wellbeing. [75] It is not necessary that economic growth attained due to macro-economic policies, will bring reduction in child labour but may increase child labour in harmful or exploitative work. The research states that with increasing economic growth, demand is generated for unskilled and cheap labour; and children are the best to meet such demands.[76] Even the International Monetary Fund warned Pakistan for taking immediate measures to stabilize growing budget pressures and rising inflation because economic pressures are forcing young Pakistani children to leave home in search of work.[77]

In 2010, Maplecroft -the Global Risks Advisory Firm- had conducted study about child labour in the key emerging economies which presumed that climate change will push more children into child labour. The study contained the Child Labour Index and map rated 68 countries with possibility of extreme risk of abuse with child workers. Pakistan was rated 09 from the total 68 countries. In South Asia, Bangladesh was ranked 01 and India ranked 04 where child workers are abused and exploited.[78]

In 2011, Global March Against Child Labour- having international secretariat in New Dehli- had chartered a road map for eliminating of child labour by the year 2016. It is a movement to mobilize “worldwide efforts to protect and promote the rights of all children, especially the right to receive a free, meaningful education and to be free from economic exploitation and from performing any work that is likely to be harmful to the child's physical, mental, spiritual, moral or social development”. There are estimated 215 million child labourers across the globe.[79] Pakistan do contribute in a big world’s pool of child labour force but exactly not known, except the estimates.

Conclusion

Generally it is believed that child labour is an intricate phenomenon having social, cultural, economic, political and religious implications. Socially and religiously, child labour is acceptable. Thus, child labour has been ignored not merely by individuals but by the State.

Child labour mainly worst form of child labour has increased since the first NCLS in 1996. But the provincial governments and the ICT have remained unable to implement the ECA. There is no check on economic, monitory and war policies which have increased child labour. Civil society, media, INGOs and UN agencies are endeavouring to raise awareness and build capacity of government officials but all efforts are ineffective until the federal and provincial governments take the issue seriously.

Children as domestic workers were tortured and killed but all governments remained silent observers. Children are working in fisheries and mines- declared hazardous and fatal occupations by the international community but not reported and inspected by the labour departments.

Recommendations

The provincial governments and central government including the ICT must amend the ECA and bring it in conformity with the ILO’s conventions (Minimum age, Worst Form of Child Labour, Domestic Worker Convention) as well as in accordance with the Indian CLPRA.

Ban child labour under 16 years of age so that children must attend free and compulsory education as given in Article 25-A of the Constitution; also provincial and central government introduce law to implement Article 25-A.

Improve and expand social security system throughout the country. All people must be provided ample support so that they should withdraw their children from work.

The government must ensure implementation of the minimum wage policy in all sectors of economy either in formal or in informal so that child labour could be reduced.

End Notes

[1]Two entries 26 and 27 (Welfare of labor; conditions of labor, provident funds; employer's liability and workmen's compensation, health insurance including invalidity pensions, old age pensions) along with other 1 to 47 entries in to the Federal Legislative List have been omitted. With the omission of entries 26 and 27 from the Concurrent Legislative List, labour is a provincial subject. However, some legal expert opined that the parliament still can legislate on child labour and their welfare and protection under the Constitution of Pakistan. Please see Sattar, B. (2011), Brief Paper: 18th Constitutional Amendment and Devolution of Labour Ministry at http://www.pildat.org/Publications/publication/LabourIssue/18thConstitutionalAmendmentandDevolutionofLabourMinistry.pdf

[2] Punjab Laws Online; last retrieved on January 2012 at http://www.punjablaws.gov.pk/index6.html

[3] The Employment and Services Conditions Bill was drafted in 2006 but proper attention to it was drawn in 2009; therefore some organizations attach it with year 2006 (like PILER) and some with year 2009.

[4] Khalil, T (2011), Three news federal ministries being Set up; The News International; July 29, 2011

[5] Dawn (2011), Labour Minister denied funds’, December 11, 2011

[6] The Tribune Express (2011), Devolution of Ministry: child labour in limbo; May 6, 2011

[7] Rumi, J (2011), Govt forms Pakistan Bureau of Statistics at http://www.pakistantoday.com.pk/2011/12/govt-forms-pakistan-bureau-of-statistics/

[8] Dated October 28, 2010; Ref. No. SPARC/LHR/649

[9] Dated 4th November 2010; No. DS (D)/CMS/10/OT-47/Lahor/0079341

[10] In the age bracket 15 to 19, there is only one extra year. It is mainly because of the already existing group formation in all types of surveys. However, the year 19 does not make a significant difference in the given numbers. The ILO and civil society may lobby with the Government for inserting the age group from 15 to 18 and delete the age group from 15 to 19 in all types of surveys which includes Labour Force Survey, Household Survey, Population Survey, Economic Survey, etc. The age group 15 to 19 will continue to repeat throughout the report.

[11] Nadir N. Budhwani, Belinda Wee, Gary N. McLean (2004), Should Child Labor Be Eliminated? An HRD Perspective; retrieved at http://www.tc.umn.edu/~budh0004/childlaborarticle.pdf

[12] Tirmazi, N (2011), Pakistan Labour Force Touches 54.92 Million Figure in Pakistan; PakEconomist; June 8, 2011

[13] In the age bracket 15 to 19, there is only one extra year.

[14] A child as defined in the UNCRC- Article 1

[15] Estimates are taken from the presentation by Mr Qindeel Shujaat- lead researcher- on January 17, 2012 at Children Complain Office on a study conducted by Children Complaint Office- Wafaqi Mohtasib. According to the researcher, these latest estimates are based on Labour Force Survey and the Population (Household Census);

[16] Daily Times (2011), Surgical sector presents $1bn export target package; April 17, 2011;

[17] The Surgical (2011), BMA- Re: Surgical Instruments; Post http://www.plattsnisbett.com/wordp/?p=75

[18] Arslan Khan shared on the phone.

[19] Reuters (2012), Millions Pushed into Child Labour in Pakistan; http://www.msnbc.msn.com/id/46297938/ns/world_news-south_and_central_asia/#.TzT_6OTgLEg

[20 ] The Nation (2011), Sialkot grappling with shortage of skilled labour; November 29, 2011

[21] International Labour Organization, Combating Abusive Child Labour II at http://www.ilo.org/islamabad/whatwedo/projects/WCMS_143210/lang--en/index.htm

[22] Aroosa Shaukat (2011), Child rights activists skeptical of Rs180m child labour project The Express Tribune; December 15, 2011

[23] Center for the Improvement of Working Conditions & Environment at http://www.ciwce.org.pk/child-labour-unit/#Intro

[24] International Labour Organization, Combating Abusive Child Labour II at http://www.ilo.org/islamabad/whatwedo/projects/WCMS_143210/lang--en/index.htm

[25] http://www.ciwce.org.pk/child-labour-unit/#Intro

[26] The Tribune Express (2011), Devolution of Ministry: child labour in limbo; May 6, 2011

[27] The Frontier Post (2011), KP govt urged to ensure end to child labour; July 20, 2011.

[28] The Government of Khyber Pakhtunkhwa at http://www.khyberpakhtunkhwa.gov.pk/Departments/DoIC/Child-Bonded-Labour-Cell.php

[29] International Labour Organization, Combating Abusive Child Labour II at http://www.ilo.org/islamabad/whatwedo/projects/WCMS_143210/lang--en/index.htm

[30] Please check Table 2

[31] From 10 to 19, only one year, 19 is an extra

[32] International Labour Organization, Combating Abusive Child Labour II at http://www.ilo.org/islamabad/whatwedo/projects/WCMS_143210/lang--en/index.htm

[33] Coastal and deep sea fishing is done on the 1,120 km coastline of Sindh and Balochistan.

[34] http://www.accountancy.com.pk/docs/economic-survey-of-pakistan-2006-07.pdf

[35] According to the ILO, Handbook for improving living and working conditions on board fishing (2010), fishing at sea is declared the most dangerous and hazardous occupation by the United Nations. Each year thousands of fatalities occur but many go unreported because of unregulated or informal fleet of fishing boats.

[36] Pakistan Fishing at http://www.pakistanfishing.com/fishing-info/fishing-industry-in-pakistan

[37] http://www.accountancy.com.pk/docs/economic-survey-of-pakistan-2006-07.pdf

[38] Khoso, A. & Shah, Z. (2005), Workers in the Fisheries Sector in Pakistan; Pakistan Institute of Labour Education & Research, Karachi.

[39] http://www.sbp.org.pk/acd/2007/Guidelines-for-Fisheries-Financing.pdf

[40] The survey was conducted on Occupational Safety and Health but neither the survey has been published not it has been known when the survey was conducted, however, most of the research in fisheries quote it. . [41] International Labour Organization (2010), Handbook for improving living and working conditions on board fishing vessels; http://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---sector/documents/publication/wcms_162323.pdf

[42] http://www.un.org/depts/los/consultative_process/mar_sec_submissions/fao.pdf

[43] Pakistan Bait ul Maal’ website at http://www.pbm.gov.pk/new/Projects/Ongoing/CSP/Introduction.html

[44] Planning Commission of Pakistan; Poverty Reduction Chapter 14 in Annual Plans 2011-12 at http://www.pc.gov.pk/annual%20plans/2011-12/chapter-14_poverty_reduction.pdf

[45] Pakistan Bait ul Maal at http://www.pbm.gov.pk/new/Projects%5COngoing%5CCSP%5Ccsp.html

[46] Hussain, Z. A. (2011), All toil, low pay; The News International; May 1st, 2011.

[47] While speaking on the phone with the writer of this chapter

[48] Ashfaq, M (2011), Low paid PDA employees KP govt flouts minimum wage rule; Dawn, December 12th 2011.

[49] Javed, T (2010), Connection between child labour & minimum wage, The Express Tribune, July 23, 2010 [50] A legislative or draftsmen’s blunder is there is no US Convention on the rights of the child but the United Nations Convention on the Rights of the Child. Under Section 5 (1) the ECA says that National Committee on the rights of the Child will performs its functions as visualized in the US Convention on the Rights of the Child. The Provincial Assembly adopted the ECA only by replacing Pakistan with Punjab and National with again Punjab.

[51]The Gazette of Pakistan- Other Notifications, Orders, etc. Senate Secretariat, February 2, 2011

[52] Dawn (2011), ‘Bombings force Pakistani children into work’; October 29th 2011

[53] Dawn (2011), ‘Bombings force Pakistani children into work’; October 29th 2011

[54] Dawn (2011), ‘Bombings force Pakistani children into work’; October 29th 2011

[55] The News International (2011), Bombing force Pakistani children into work; October 28, 2011

[56] Khan S, Hesketh T (2010), Deteriorating situation for street children in Pakistan: a consequence of war; School of Medicine, Imperial College London, London, UK.

[57] Yusufzai, A. (2012), Pak war breeds child workers. One World South Asia at http://southasia.oneworld.net/todaysheadlines/pak-war-breeds-child-workers

[58] Yusufzai, A. (2012), Pak war breeds child workers. One World South Asia at http://southasia.oneworld.net/todaysheadlines/pak-war-breeds-child-workers

[59] Khaliq, F (2011), Child Labour: in Swat, dreams turns to dust, April 5, 2011

[60] C-189 covers/supplements issues being addressed in following ILO’s Conventions and Recommendations: R201 Domestic Workers Recommendation, 2011; C097 Migration for Employment Convention (Revised), 1949; C138 Minimum Age Convention, 1973; C143 Migrant Workers (Supplementary Provisions) Convention, 1975; C156 Workers with Family Responsibilities Convention, 1981; C181 Private Employment Agencies Convention, 1997; C182 Worst Forms of Child Labour Convention, 1999 and R198 Employment Relationship Recommendation, 2006. It also implies that before the C-189 Decent Work for Domestic Workers, there were conventions and recommendations that one way or other provided protection to domestic workers including child domestic workers.

[61] Home Net Pakistan (2010), A baseline survey on home based workers of bangle industry at http://www.homenetpakistan.org/baseline_survey_bangle.pdf

[62] Dawn (2011), Legislation on home based workers promised; October 30, 2011

[63] Usman, A. (2011), Home Based workers policy put off due to dengue; The Express Tribune, October 11, 2011

[64] Ali, R (2011), Ten year old domestic servant endured torture for just Rs.1,000; The News International; January 8, 2011

[65] The Express Tribune (2011), Inflation, flood bear heavy on children; January 8, 2011

[66] The Express Tribune (2011), Inflation, flood bear heavy on children; January 8, 2011

[67] http://www.unicef.org/infobycountry/pakistan_58885.html

[68] Sadly governments are not taking any efforts; in what efforts ILO will contribute.

[69] Combating Abusive Child Labour II This project contributes to the Government of Pakistan’s efforts to eliminate child labour, including its worst forms (WFCL).

[70] http://labour.nic.in/cwl/welcome.html

[71] Section 22: Repeal and Saving of the CLPRA 1986

[72] Section 21: Repeal and Savings of the ECA 1991

[73]Abdullah Khoso, National Programme Manager

[74] Dawn, The News International, Daily Jang, The Tribune Express, Daily Kawish, Daily Awami Awaz

[75] CHIP (2004), CHIP Policy Briefing 3: Economic Policies - How Can They Contribute to Child Wellbeing? At http://www.childhoodpoverty.org/index.php/action=documentfeed/doctype=pdf/id=101/

[76] CHIP (2004), CHIP Policy Briefing 3: Economic Policies - How Can They Contribute to Child Wellbeing? At http://www.childhoodpoverty.org/index.php/action=documentfeed/doctype=pdf/id=101/

[76] CHIP (2004), CHIP Policy Briefing 3: Economic Policies - How Can They Contribute to Child Wellbeing? At http://www.childhoodpoverty.org/index.php/action=documentfeed/doctype=pdf/id=101/

[77] http://www.dawn.com/2012/02/07/millions-pushed-into-child-labour-in-pakistan.html

[78] Maplecroft (2010), Child labour most widespread in the key emerging economies – Maplecroft study at http://maplecroft.com/about/news/child-labour-index.html

[79] Global March’s website at http://www.globalmarch.org/aboutus/

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