Wednesday, December 28, 2011

Children in conflict

ARMED conflict has a number of repercussions for children. However, these can be broadly divided into two categories, both of which apply to children in Pakistan.


The first consists of children from communities affected by armed conflict as a result of direct hostilities against them and their families. These children see their schools targeted, they are often displaced because of the conflict. Some lose contact with their families and others are orphaned. Then, there are children used as soldiers or suicide bombers.

This year alone has seen, among other incidents, the kidnapping of 27 children from Bajaur Agency by Afghan Taliban, the attack by the Tehrik-i-Taliban (TTP) on a school van near Peshawar killing five children, the death of a child in Karachi following a blast targeting the house of the chief of the CID`s anti-terror force.

The Taliban have set conditions for freeing the Bajaur children and demanded that the government release those languishing in various prisons, stop instigating tribesmen to form anti-Taliban lashkars and disband such `peace committees` in Bajaur. The Peshawar attack was termed a lesson for the concerned village that had formed a lashkar to fight the Taliban. Although it has been months since the kidnapping of the Bajaur boys, no concrete steps have been taken by the government for their release. While some of the boys have escaped, a number of helpless parents still await the return of their sons. In the past, incidents such as these would have been settled by local tribal leaders on both sides of the border. However, the ongoing conflict has seen the murder of a prominent Mamond tribal leader from Bajaur who crossed the border to visit his relatives. Not many dare to cross the border now.

In a situation where the government and military are backing private lashkars in the fight against the Taliban, they should also be able to support local communities and tribes in material terms, as they are being brought into direct conflict with the terrorists. Why have the Mamonds in Bajaur been left alone when their children have been kidnapped as punishment for siding with the government?

Similarly, a number of children have been arrested in the past few years as a result of the so-called war on terror and are in different prisons of the country, and even in Afghanistan. One case is that of 14-year-old Hameedullah Khan who was picked up in July 2008 and handed over to the Americans as a terrorist according to an international NGO Reprieve.

Khan is in the US military prison in Bagram, Afghanistan. Geneva Convention IV guarantees special care for children, but it is Additional Protocol I that lays down the principle of special protection: “Children shall be the object of special respect and shall be protected against any form of indecent assault. The parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.” This principle also applies to non-international armed conflict.

The Optional Protocol to the Convention on the Rights of the Child, on the involvement of children in armed conflict, adopted on May 25, 2000, generally strengthens protection for children in armed conflict. It states that the state parties must take all feasible measures to ensure that members of their armed forces who have not reached the age of 18 years do not take direct part in hostilities.

It prohibits compulsory recruitment into the armed forces of persons under 18 and directs that armed groups, distinct from the national armed forces, should not, under any circumstances, recruit or use in hostilities those under 18, and that governments must take legal measures to prohibit and criminalise such practices. Pakistan has signed but has still to ratify the optional protocol on the involvement of children in armed conflict.

Although children are being recruited by armed groups and are also being used as suicide bombers, there is no visible action on the part of the government or concerned NGOs to tackle the issue despite the fact that rehabilitation of child soldiers is part of the national plan of action for children.

The issue of child soldiers needs to be tackled skilfully, taking into account the contributing factors of how children are lured into such a dangerous game. Both the government and NGOs should devise their strategies to protect children who are being used. The government should enact legislation to outlaw the recruitment/membership of children by armed groups and penalise those who facilitate such recruitment/membership.

A rehabilitation programme should also be started for detained child soldiers and include those who were sent to Afghanistan in the past to take part in the war against the US. NGOs should focus their energies on raising awareness about the negative impact on children of their use as soldiers.

Furthermore, there must be training programmes for officials of the armed forces and law-enforcement agencies on national and international legal instruments concerning the protection of children in armed conflicts. Free and compulsory primary education is yet another effective method to prevent the menace in future on a sustainable basis.

Finally, efforts should also be made for the rehabilitation and reintegration into society of those children directly affected by the armed conflict, who have lost family members. These should include child-headed households. Meanwhile, the safe and early release of children kidnapped by the Afghan Taliban should be prioritised and both federal and provincial governments should use their influence and clout in this regard.

The writer is executive director of the Society for the Protection of the Rights of the Child.

Published in Daily Dawn on December 28, 2011
http://www.dawn.com/2011/12/28/children-in-conflict.html

Wednesday, December 14, 2011

Defending human rights in Pakistan

Universal human rights day is being commemorated every year on December 10 for the last 63 years since the Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly on the same date in 1948. This year’s theme was ‘Human Rights Defenders’. On the contrary, in Pakistan, the situation of Human Rights Defenders is worsening day by day keeping in view various threats faced by them in the country as a result of the ongoing extremism, talibanization, intolerance and corruption.

The cold blooded murder of Zarteef Khan Afridi, a prominent human rights defender from Khyber Agency of FATA allegedly by a group of the Taliban on December 08, just two days before the universal human rights day, reminds all human rights defenders that how unsafe Pakistan has become for them. Mr. Khan was a staunch supporter of women’s rights in FATA and considered education as a key to the cause of human rights. He kept asking the rulers for the last several years to invest in education if they are sincere in FATA’s development and eradicating extremism and poverty on sustainable grounds but in vain.

The tragic murder of Alamzeb in Karak, a human rights defender in the making, who stood firm by his sister Uzma Ayub who was kidnapped one year ago, held captive and repeatedly raped by several persons including policemen, and who managed to escape from her captors. The seventeen (17) years old girl was six months pregnant when reached back home and since then is running from pillar to post to seek justice with the help and support of his brother Alamzeb. After her escape she informed the local court, media and civil society organizations delegation that she was repeatedly raped not only by her kidnappers but also by police officials. Her sobbing mother said ‘Police is supposed to provide protection to the people but if they themselves become beasts, who will trust them?’At the tender age of seventeen (17), she has suffered much cruelty. Assistant Sub Inspector who raped the child repeatedly is known as Mangal Bagh (militant leader in Bara Khyber Agency) of Karak locally.

Alamzeb was determined to ensure justice for his sister and refused to bow down to the pressure put by the families of the accused and local religious leaders for a compromise with the accused and abortion by his sister. He was planning to transfer the case to Peshawar as he, his sister and other family members were receiving death threats from the jailed ASI Hakeem Khan and his brothers. Media and civil society kept highlighting the case urging the provincial government and police high ups to immediately take the accused policemen in custody so that they couldn’t influence the proceedings of the case and inquiry against them and should immediately provide security to the family members of the girl. The government was also urged to provide her with protection, medical assistance and legal aid that also resulted in Chief Minister Hoti’s notice of the case and ordering of an inquiry without any result though.

Due to the negligence of the police department and the provincial government, brothers of the main accused Hakeem Khan were able to kill Alamzeb in broad day light just one day before the universal human rights day in the presence of police at courts of Tehsil Takht Nusriti, District Karak. The case also highlights the concerns of civil society that the very institution “Police” which is suppose to protect human rights or human rights defenders and prevent violations of human rights are involved in heinous human rights violations themselves and are a threat to the human rights defenders like the one under discussion or a number of such cases reported in media regularly.

Human rights and child rights should be made an integral part of the police training curricula so that police officials are informed of their responsibilities as duty bearers to prevent violations of human rights including child rights at the time of training and refresher courses.

Be it the government, civil society or the international community, we all owe Zarteef Khan Afridi and Alamzeb Khattak, the brave human rights defenders who sacrificed their lives for the protection of human rights, to continue their struggle for justice and the protection of human rights what may come. The role of police department and judiciary is important in order to ensure speedy justice to Uzma Ayub and brining Alamzeb’s killers to task and of the federal and provincial governments to provide her with security and financial assistance.

Wednesday, August 10, 2011

Child rights in Pakistan

Child rights in Pakistan
Arshad Mahmood
Having a look at the state of child rights in Pakistan in light of indicators like Millennium Development Goals (MDGs) or the benchmarks set under the Convention on the Rights of the Child (CRC), the results are depressing and we still lag far behind in fulfilling our promises to our children. Last year’s floods added to the already complex challenges of conflict, terrorism, the appalling state of the health and education sectors, and lack of legislative initiatives combined with poor or no implementation of existing laws.

The conflict in northern parts of the country, the wave of terrorism in the country in general and Khyber Pakhtunkhwa and Federally Administered Tribal Areas (FATA) in particular and the continued political instability and civil unrest in Balochistan have all combined to put the rights of the child at stake. Children in Pakistan continue to be affected by militancy. They have been the innocent victims of terrorist attacks carried out all across the country. In an unprecedented move by the militants, school buses were targeted in the recent past and as a result many children were injured or lost their lives.

This is surprising that there is some evidence of a decreasing trend in child labour globally. Unfortunately however, in Pakistan there has been an increase in child labour. One of less acknowledged but potentially worst form of child labour that is rampant in the country is child domestic labour. During the last one and a half year we got more evidence of the way child domestic labourers are treated in the privacy of homes and the abuses they suffer. 15 cases of torture to death of child domestic labourers were reported by the media from January 2010 to date starting from the famous Shazia Masih case in Lahore. Similarly, a number of cases of torture and serious injuries resulting in lifelong disabilities were also reported by media and child rights groups. Punjab, being the province from where the highest number deaths and disabilities through torture have been reported, must respond to the situation immediately. Similarly, the federal government should also realize its responsibility and check the menace of child domestic labour in federal capital, if not in the whole country.

Violence against children is widespread; at homes, in the streets and institutions and in the criminal justice system. The unfortunate and terrible incidents like the Sialkot lynching of two brothers and rape of a 13 year old girl in Wah Cantonment police station are some of the horrible examples of increasing trends of violence against children. There are other shocking examples. The indoctrination and use of children as suicide bombers, torture of child domestic labourers, and physical punishment of students, sometime with fatal results, are some of the ways that children are treated by this society. Other incidents of violence have been covered in the media on almost a daily basis. The atrocities committed against children take many forms but the perpetrators are almost always adults in their role as guardians, teachers, relatives and even law enforcement personnel; the very people that children should be most safe with.

The criminal justice system for children is a challenge. Lack of a concerted effort, due to absence of a statutory body for children, has resulted in failure to include international and national standards in the training curricula of judicial, police, prison, probation and related government agencies. A lack of awareness among various actors of the criminal justice system about the rights of the child and their respective obligations has constantly been observed, due to which children have to face hardships in a criminal justice procedures.

Despite acknowledging the draconian nature of the Frontier Crimes Regulation (FCR) both by the Prime Minister and the President in their respective addresses in the National Assembly’s inaugural session and to the nation on independence day, FCR is still a reality in the Federally administered Tribal Areas (FATA) and a number of people including innocent women and children are in prisons under its collective responsibility clause.

Pakistan is now a party to the International Covenant on Civil and Political Rights (ICCPR). Being Party to the ICCPR further obligates the State to ensure all the inhabitants have equal civil and political rights which is not the case as for as the people of FATA are concerned. The issue of FCR should be resolved and Article 247 (Administration of Tribal Areas) of the Constitution should be amended in order to bring Tribal Areas into the mainstream.

Similarly, at the policy level no concrete steps were taken for the implementation of the Concluding Observations and Recommendations of the UN Committee on the Rights of the Child on Pakistan’s last Periodic Report which had called for, among other steps, approval of a national child protection policy and related laws, increase in resource allocation for health, education and child protection, establishment of a national commission on the rights of children and inclusion of child rights in the training curricula of all professional training colleges and academies.

Following the 18th Constitutional Amendment, the Concurrent Legislative List has been deleted, leading to confusion within the relevant ministries, departments as well as among other stakeholders on the legislative competency of the federal legislature and existence of coordination mechanism at the national level on the subject of children. The civil society wholeheartedly, welcomes the 18th Amendment and has already started actively coordinating with concerned provincial government departments for related legislative and other initiatives however, we cannot ignore the reality that the devolution does not absolve the federal government and federal legislature of its responsibilities towards children in light of the Constitution and Pakistan’s international obligations being Party to the CRC and other UN and ILO Conventions.

To conclude, the need to protect children has never been greater. We all need to work together to ensure that the rights of children enshrined in the Constitution, the Convention on the Rights of the Child and the Islamic injunctions are honored. The government and the parliament need to prioritize child rights and immediately pass all the pending legislation. There should be proper budgetary allocation for all children related initiatives, a national commission should be established to work for the promotion and protection of the rights of the child and ensure implementation of Pakistan’s national and international obligations. A plan of action should be adopted for the implementation of the CO&R of the UN Committee. The plight of children in Pakistan can be improved on a sustainable basis by taking these initiatives. The key, however, is political will.

The need to establish National Commission on the Rights of Children

Establish National Commission on the Rights of Children

Every day we keep reading news of blatant child rights violations across the country. Children are faced with a number of issues including lack of a comprehensive legal framework to protect children particularly the issue of internal trafficking children, child domestic labour, child sexual abuse, corporal punishment etc. to name a few areas. The is despite the fact that Pakistan was 6th among the world community and first Islamic country to sign and ratify the UN Convention on the Rights of the Child and have recently also ratified the Optional Protocol to the Convention on the Sale of Children, Child Prostitution and Pornography. Budgetary allocation of child protection is equal to zero and whatever little bit of initiatives we see are initiated by national or international NGOs.

There is no body responsible for promoting and protecting the rights of children in Pakistan following the 18th Constitutional Amendment as before the 18th Amendment there was a body called National Commission on Child Welfare and Development (NCCWD) in the Ministry of Social Welfare and Special Education. Although, one can have several questions about the performance of NCCWD but at least there was some kind of coordination mechanism available. Unfortunately, following the 18th Amendment there is no body at the federal level responsible for coordination with the provinces on the issues of child rights. Similarly, there is no follow up on the concluding observations and recommendations of the UN Committee on the Rights of the Child on Pakistan’s last periodic report. A number of bills which were in the pipeline for the past several years are limbo because there is no one charge to follow those despite the fact that some of them have nothing to do with 18th Amendment.

I urge the Government to expedite the process of enactment of legislation that embodies the rights of children and for the setting up of an independent commission on the rights of children. The Commission should have the powers to monitor and protect children’s rights across the country in order to ensure minimum standards in light of our constitutional and international obligations and to advocate for policy and systemic improvements including those related to budgetary allocation. The recent decision by the Government to place the National Commission on the Status of Women in the Ministry of Human Rights is a welcome step. In this context the case of children is at par and in juxtaposition with those of women.

Thursday, June 2, 2011

The plight of child domestic labourers

Tehmina Qasim, 12 years old, is another addition to the count of the child domestic labourers who were tortured to death by their employers in the country, with most of the cases reported in Punjab. Tehmina was so severely tortured by her employers in Islamabad last year that her backbone was damaged. Her elder sister, who was also working for the same employers, managed to bring her to hospital where she was operated to help her at least be able to sit as it would not be possible for her to walk ever according to doctors. The perpetrators could not be punished for this heinous crime against the innocent child as usual as her father entered into a settlement with the employers with the support of his own lawyer after receiving a few hundred thousand rupees and left with Tehmina for his native village in District Rahim Yar Khan in southern Punjab. Tehmina died after a year’s struggle for life last week.

The case was highlighted by a few newspapers and some civil society organizations but to no avail. The government is not interested in looking into the plight of child domestic labourers as most of the bureaucrats and parliamentarians employ children themselves. What should be done to realize the authorities about the gravity of the situation? Tehmina was the 15th child who died as a result of torture by employers since Shazia Masih’s tragic death in January last year.

This is regrettable that despite the outrage following Shazia Masih`s case in Lahore, other innocent lives continue to be affected by the heinous practice of Child Domestic Labour. This is largely the result of impunity with which employers exploit and abuse children working in their homes. In most cases, the perpetrators are never brought to justice and victims or their families are pressurized into settling out of court as happened in the case of Tehmina.

We, as a society, have accepted these blatant violations of child rights and are immuned to such barbaric acts of violence against children. As a result, children are suffering and their futures are at stake. Civil society keeps highlighting such issues but the state has failed to appreciate the seriousness of the situation and react. We should strongly condemn the phenomenon of child domestic labour and at every forum demand both the federal and provincial governments to take solid measures to check growing violence against child domestic labourers and respond to the situation by notifying Child Domestic Labour in the list of banned occupations under the Employment of Children Act (ECA) 1991.

After the 18th amendment, ECA 1991 has to be adopted by the provinces before June 30, 2011 and Punjab has already adopted the Employment of Children Amendment Act 2011 without making any change in the ECA 1991 as far as the schedule of banned occupations is concerned. In this context, it is also noteworthy that most of the cases of violence against child domestic labourers highlighted in the media were from Punjab. The government of Punjab should immediately notify Child Domestic Labour under the schedule of banned occupations of the ECA 2011. Furthermore, the other provinces should also include Child Domestic Labour in ECA’s schedule of banned occupations while adopting the law.

It is hoped, that the effective implementation of the constitutional provision about free and compulsory education for children of five to 16 years could also be a good preventive step. Without ensuring free and compulsory quality education, it will not be possible to eradicate child labour and particularly its worst forms including child domestic labour. No visible steps, however, have been taken by any province or even the Islamabad Capital Territory, for the implementation of this constitutional provision despite the lapse of more than one year of the passage of the 18th amendment.

Saturday, May 28, 2011

Justice denied: Haleema Bhutto

It was appalling to watch the dreadful story of Haleema Bhutto, the daughter of Sindh, a few days back where her nephew Babar Ali Bhutto was shown brought up on footpath near national press club in Islamabad. Haleema, her brother, her sister, brother in law and a two and half years old nephew came to Islamabad on March 29, 2010 following Haleema being declared ‘Kari’ by the tribe of her husband following a dispute with her husband over a piece of land that her husband wanted her to transfer in his name. When I met Haleema, the first impression I got was that she has completely lost her faith in the government, judiciary, parliament, media and NGOs and understandably so as none of these could help her in its true sense.

It was surprising to learn from her that she was already been visited by former Ministers for Human Rights and Labour, Manpower and Overseas Pakistanis, she has been visited by prominent women’s rights activists and female members of the Parliament I could think of contacting to muster support for her to ensure her justice including but not limited to Sharmila Farooqi, Bushra Gohar, Yasmin Rehman, Tauqir Fatma Bhutto, Fauzia Wahab, Fauzia Habib, Farah Naz, Nirgis ND Khan, Mehreen Bhutto, Shazia Marri, Shehnaz Wazir Ali and Nargis Faiz Malik with no results to ensure her justice and her safe return to her native District Ghotki in Sindh.

Haleema and her brother have more than seventy visiting cards of government officials, parliamentarians, journalists, lawyers, NGOs’ representatives, UN Agencies representatives who visited them with no results. Haleema was told by one of the female parliamentarians that she was sent by President Asef Ali Zaradari to meet her and look into her case. Despite all these high level contacts, meetings, visits and support, the family is on footpath for the approximately 373 days in tough weather conditions with a little child with them but to no avail. This shows nothing but the failure of the State to provide protection to its citizens and unfortunately all organs of the State have been exposed.

I thought of National Assembly’s Standing Committee on Human Rights, to get help for her, but she has already been introduced to the Standing Committee by MNA Marvi Memon and the Standing Committee also took some steps that unfortunately however, could not bring an end to her painful ordeal and ensure justice to her. Besides, she also brought her case in the notice of Standing Committee on Interior, which directed DPO Ghotki in April 2010 to send report on Haleema case within one week along with action taken against accused persons. In July 2010 FIRs No. 235-236 and 203 and 100 were registered in Jobaro and Dharki police stations with no arrests. Similarly, Marvi Memon once brought her to Supreme Court where she briefly informed the Court about her ordeal and this is why whatever little faith she has in the system and its custodians that is because of Marvi Memon of whom she speaks positively and acknowledge her support.

Haleema’s ordeal started at her childhood when she was married at the age of 12 and within a year she had to take refuge at her parents’ home following brutal torture by her husband when she refused to transfer her land in his name. She was there at her parents’ home for 18 years before she was sent back to her husband’s home on the condition that she wouldn’t be tortured neither she would be asked to transfer her land. The agreement soon came to end when her husband started his old tactics once again for gaining control of property.

Haleema’s demands from the State and civil society of this country are very simple; support to get divorce from her husband, protection of life and property, putting to justice those accused of terming her ‘Kari’ and an impartial investigation of the case, giving them back the possession of their land and compensation of loss suffered by her and her family. No lawyer, judge, parliamentarian or a human rights activist can term any of these demands unjust or unlawful. She has the right to spend her life as per her one free will in accordance with national and international laws and the religion, state is bound to provide her and her family protection and to have an impartial investigation into the case and a free and fair trial to ensure justice is done.

Why is it taking us so long to provide a woman and a three and a half year old child and their family with their rights? Why is the State so helpless in this case? Why is the Parliament so ineffective despite she been visited and ensured their full support by more than a dozen female parliamentarians and ministers? Why is the Supreme Court unable to resolve the issue? Why is the Insani Huqooq Itehad and the civil society of Islamabad unable to take up this case and why were some civil society organizations unable to fulfill their promises to Haleema?

Through these lines I request the President, the Prime Minister, the Chief Justice Supreme Court and the Chief Justice Sindh High Court, Speaker National Assembly of Pakistan and the Sindh government to immediately look into Haleema Bhutto’s case and ensure justice to her before it is too late, before innocent Babar Ali also lose his innocence on the footpaths of Islamabad, before we repent the time when she was calling us for help and we forgot her in our own busy schedules, before she take some dire step, before someone else direct us to help her and before we all admit that we have failed. What else a weak women and her family can do to ensure justice is done to her? To get our attention and the attention of those in power? To get the law enforcement arm of the State function?

This is a test case for the State of Pakistan to prove that the State functions are doing their job properly and that the State can protect its citizens and particularly the vulnerable groups like women and children.

Friday, April 29, 2011

The ordeal of minorities in 2010

The Human Rights Commission of Pakistan’s latest report on the State of Human Rights in Pakistan reminds us once again about the grim realities of the state of human rights in the country. The report has, understandably so, highlighted the ordeal of minorities in the land of pure and has shared some horrific figures including killing of 99 members of the Ahmadi community in the fateful year. 64 people were charged with blasphemy, out of which three were killed in police custody. The fact that the Ahmadi community is facing unparalleled discrimination is not something new and we kept hearing about such violent acts throughout the year.

During the last four months of 2010, three members of the family of Sheikh Mehmood Ahmad (head of the Ahmadi family) have been killed in three organized attacks including Mehmood himself while three have sustained lifelong injuries. This family has a strong business background in Mardan District of Khyber Pakhtunkhwa. Unfortunately, it has been a victim of kidnappings, bombings and targeted murders since last two years. The situation is quite critical for women and children as they are more exposed and helpless. The family and their business should be provided protection and the children and women of the family should be visited by the female parliamentarians of the ruling coalition to give moral support and an access to education of the children in a safe environment should be ensured.

“You are free; you are free to go to your temples, you are free to go to your mosques or to any other place of worship in this State of Pakistan. You may belong to any religion or caste or creed—that has nothing to do with the business of the State. We are starting with this fundamental principle that we are all citizens and equal citizens of one State”, stated the founder of Pakistan. Is this the true picture of Pakistan that the Quaid had promised to the citizens of Pakistan at the time of independence?

In situations of religious conflict, the authorities have a particular responsibility to safeguard the fundamental rights of the minority, including the right to liberty and the safety of the person. The concerned citizens of Pakistan share HRCP’s concerns about failure of the authorities to take effective steps to protect these rights and in cases of attacks by the majority, to provide for adequate redress.

The government seems to be indifferent to the situation and there is no reaction to the ever increasing violations of human rights and particularly those of the vulnerable segments of the society such as minorities, women and children. The government should immediately institute an impartial enquiry into the attacks and killings of minorities. The findings of the inquiry should be made public and the persons responsible for the attacks and killings should be brought to justice.

Furthermore, the government should also adopt international human rights standards such as the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief. These steps will create awareness among the law enforcement agencies concerning their role and responsibility regarding the protection of the life and property of religious minorities.

Saturday, February 19, 2011

Time to repeal the FCR

By Arshad Mahmood

The world recently commemorated human rights day (December 10) to reaffirm the commitment for a just and peaceful world where the rights of all should be protected. In Pakistan, there was nothing much to celebrate except for narrating the names of human rights conventions and treaties ratified by the government. There was little mention of implementation. One can highlight many different types of systematic human rights abuses in the motherland, but I would like to focus on the notorious Frontier Crimes Regulation (FCR) with a request to dedicate this year’s human rights day to those innocent people who had to spend years in prisons under the collective responsibility clause of the FCR.
The FCR has been declared a black law and in total contradiction with constitution and international human rights laws by national and international human rights activists and organisations. The prime minister and the president of the country promised to abolish the law, or bring changes to it, but they have not been able to do so despite almost three years in their respective offices. It was also a part of the terms of reference of the 18th Constitutional Amendment Committee to look into this issue. Unfortunately, the 18th Constitutional Amendment is silent on the issue of bringing any reforms in Fata.
The Constitution says that Fata is a part of Pakistan but the reality is that because of the FCR, its inhabitants are not treated like other citizens of the country. This is also in large part due to Article 247 of the Constitution which restricts the operation of Pakistani laws in these areas and bars the courts from exercising their jurisdiction.
The recent appeal of Ms Aasia, who has been detained along with her three young children, and Ms Gulalai, who has been detained with her two daughters, against their conviction under the collective responsibility clause of the FCR in Peshawar High Court, once again reminds the government and the civil society about the blatant misuse of the FCR.
Under Article 247(7) of the Constitution, these offenders have no right to move the superior courts against their sentences. The superior courts have ruled in various cases that they have no jurisdiction to entertain cases under the FCR. Under the FCR, an appeal can only be filed before the concerned commissioner whose orders can be challenged through a petition before the FCR tribunal. The tribunal comprises of the provincial home secretary and the law secretary. In case of a difference of opinion between the two, the case has to be referred to the chief secretary.
Most offenders arrested under the FCR end up in prisons without any appeals being heard, since poor families can’t afford to take numerous trips to the offices. The government, the parliament including the elected representatives of Fata, and the civil society need to sit together and find solutions to these problems. The fate of the FCR should be decided according to the wishes of the people of the tribal areas and in adherence to Pakistan’s international commitments without any further unnecessary delay.
It is high time that the present elected government take solid steps to bring positive change in the lives of the people of the tribal areas and bring them into the mainstream. Draconian laws like the FCR need to be done away with.
Published in The Express Tribune, December 28th, 2010.

http://tribune.com.pk/story/95568/time-to-repeal-the-fcr/

Protecting our children II

By Arshad Mahmood

In its recommendations, the UN Committee on the Rights of the Child has said that the state party should give priority attention to increasing budget allocations for children, ensuring a judicious distribution of resources between different fields and paying particular attention to enhancing budgetary allocations for social activities. It was further recommended that, “the State party ensure that primary education is free and compulsory for all children”. The recommendation is related both to legislation and resource allocation. Progress in Pakistan has been dismal as the percentage of GDP spending on education continued to decline for the past many years. There was a welcome step by parliament this year where education has been made a fundamental right for all children between five and 16 years of age through the Eighteenth Amendment. However, legislation without resource allocation for implementation is an ‘empty gesture’. Budgeting of laws is something completely unknown to policymakers in Pakistan, resulting in enactment of laws without any implementation mechanisms.
Former UN High Commissioner for Human Rights Mary Robinson has rightly pointed out that “while some states have made progress, others have made no more than symbolic gestures without creating an effective infrastructure of implementation and monitoring reaching down to the local level”. In Pakistan, the National Commission for Child Welfare and Development (NCCWD) is responsible for coordinating the implementation of the Convention on the Rights of the Child. NCCWD, established through an executive order, therefore, has no legal standing, has very limited human and financial resources on its disposal and is mostly dependent on donor funding. Being a non-statutory body, its recommendations are also not considered seriously by various ministries and provincial government departments, resulting in poor implementation of the Convention.
Sensitisation of professional groups about the Convention is one of the most important aspects regarding the implementation of the Convention which is missing in Pakistan. The Committee recommended that the state party (a) continue and strengthen its training and sensitisation on children’s rights for professional groups working with and for children and (b) develop adequately resourced policies and programmes for a systematic and sustained training process. NGOs have projects targeted at training different professional groups, mostly police and prison officials, in small numbers. However, no commitment has been demonstrated by the government in the past almost two decades to incorporate the Convention into the training curricula of professional groups. Training academies for the judiciary, teachers, police and health professionals should incorporate the Convention into their training curricula and materials.
Summarising what can be drawn from the above discussion, the government of Pakistan was not able to bring the national legislation into conformity with the Convention. Therefore, priority should be given to legislation at the federal level, i.e. enactment of pending bills; increased budgetary allocations particularly for education, health and child protection and statutory status for the NCCWD with more financial and human resources.
Published in The Express Tribune, November 24th, 2010.

http://tribune.com.pk/story/80760/protecting-our-children--ii

Protecting our children I

By Arshad Mahmood

The Convention on the Rights of the Child, hereafter called the Convention, is a landmark in the arena of child rights with almost universal ratification. The drafting of such a unanimously accepted document is a great achievement in itself, yet it seems that the expected impacts on the lives of children are far from realisation. The real issue is its implementation which requires the efforts and cooperation of all those working in the field of children’s rights but above all requires the efforts of the ratifying state. Consecutive governments in Pakistan have failed to show the required commitment and political will to implement the Convention.
Pakistan ratified the Convention on November 12, 1990 but has not been able to implement it. This can be judged from the following indicators: legislation in accordance with the Convention, resource allocation, establishment of effective coordination mechanisms and training and sensitisation of professionals. In its recommendations, the UN Committee on the Rights of the Child reiterated that “the State party scrutinise carefully existing legislative and other measures, both at the federal and provincial levels, with a view to ensuring that the provisions and principles of the Convention are implemented throughout the territory including the Northern Tribal Territories”.
Legislative measures have been taken in bits and pieces by the governments during the past 10 years including changes in the Hudood Ordinance, the introduction of the Punjab Destitute and Neglected Children Act 2004 and the Khyber-Pakhtunkhwa Child Protection and Welfare Act 2010. However, the federal government has not been able to introduce the long-awaited legislations at the federal level; the Child Protection (Criminal Laws Amendment) Bill, the National Commission on the Rights of Child Bill, the Charter of Child Rights Bill, the Prohibition of Corporal Punishment Bill and the Child Marriages Restraint Amendment Bill 2009. The Bills have taken into consideration most of the Committee’s recommendations regarding bringing the local laws in conformity with the Convention i.e. increasing the minimum age for criminal responsibility from 7 to 12 years, banning corporal punishment, criminalising offences against children and raising the marriageable age of girls from 16 to 18 years. Despite the fact that several consultations were held on the draft bills, pushed by the civil society, the bills could not be placed before parliament due to lack of interest of the government and various bureaucratic hurdles.
Similarly, implementation of the provisions and principles of the Convention throughout the country could not be realised. This is because under Article 247 (3) of the Constitution, legislation in the country is extended to the Provincially Administered Tribal Areas (Pata), Federally Administered Tribal Areas (Fata), Federally Administered Northern Areas and Azad Jammu and Kashmir through a special notification by the president, in case of the federally administered areas, or by the provincial governor, in case of the provincially administered areas. Although some children-related laws such as the Employment of Children Act of 1991 and the Juvenile Justice System Ordinance of 2000 have been extended to Fata and Pata, the required infrastructure such as a judicial system, legal assistance, probation system, rehabilitation and so on, still need to be put in place. Due to this, these laws could not be implemented, and thus their passage has had no impact on the rights of children of the region. The present government repeatedly promised to repeal the Frontier Crimes Regulations which is based on the doctrine of collective responsibility but have failed to do so particularly when a number of such constitutional changes were made through the 18th Constitutional Amendment.
Published in The Express Tribune, November 23rd, 2010.

http://tribune.com.pk/story/80300/protecting-our-children--i/

Childhood denied

By Arshad Mahmood

SO far this year, six cases of death and four of lifelong injury to children working in the domestic sphere have been reported. The number may not appear huge given the thousands of children toiling in the homes of people who abuse and exploit them. And yet, every child matters — poor or rich, girl or boy.
Thousands of children are routinely deprived of education, healthy growth and their right to protection from abuse, exploitation and neglect. They are denied their right to live with their families or spend their childhood in play. Indeed, their very future is destroyed.
As a nation we have become immune to human and child rights violations. We see, but fail to feel, the pain experienced by children on the streets, in prisons, being smuggled or used for drug trafficking and working in hazardous environments.
Child labour in the domestic sphere is amongst the most common forms of child labour in the country. This refers to situations where children are engaged in performing tasks in the homes of exploitative employers. There are cases where such exploitation is extreme and includes trafficking, slavery or practices similar to slavery, or work which by its very is hazardous and likely to harm the health, safety or morals of children. Helping Hands or Shackled Lives? Understanding Child Domestic Labour and Responses To It
Such children remain invisible to their communities, toiling for long hours with little or no pay and are regularly deprived of the chance to play or go to school, according to the International Labour Organisation`s report . According to Unicef, children as young as five have been found working in the domestic sphere.
One reason behind the lack of attention to the plight of these children is that they suffer behind closed doors. “They are in a workplace — even if that workplace is someone else`s home — hidden from public view and labour inspection,” notes June Kane, author of the ILO report. Echoing the report`s findings, former Unicef executive director Carol Bellamy said that to describe many of the cases as `domestic workers` is misleading. “We`re talking about children who, instead of starting each day in the school yard, are getting up when it is still dark and toiling until night in slave-like conditions,” she said. “This is not legitimate employment.”
Despite voices being raised after Shazia Masih`s case in Lahore in January, it is disheartening that other innocent lives continue to be affected by the heinous practice of child domestic labour. On Jan 22, 12-year-old Shazia Masih was allegedly tortured to death by her employers. Her family claimed that her body was severely wounded, with her right arm and ribs fractured, skull damaged and nails plucked out. On Feb 11, Yasmin, a 15-year-old girl, was allegedly burned by her employers in Okara and died five days later in a Lahore hospital. According to Yasmin`s father, this was not the first instance of violence at the hands of her employers.
On June 3, Shahzad, who worked at the residence of a doctor in Gujranwala, was found dead on the rooftop. Tania, another victim of child domestic labour, was killed in July in Lahore. In August, Kausar, a teenaged girl working as domestic help in Lahore, died after vomiting blood. The latest in this series of tragedies is Firdaus, who worked in the home of a lawyer in Sahiwal. The child`s grandfather has accused the employer of torture, rape and poisoning to death.
Tehmina and her sister, from Rahimyar Khan, worked for a family in Islamabad. They were treated cruelly and denied salaries for a considerable period of time. As Ramazan began, their demand for their long overdue salaries angered the employers who allegedly beat Tehmina and then threw her out of a first-floor window. She was taken to the hospital after three to four hours with a fractured backbone. The Islamabad Capital Territory Police did no better, refusing to register the first information report (FIR) until the district and sessions judge Islamabad intervened nearly three weeks later.
Samina, the elder sister who worked in the same house, disclosed that the employers had intended to kill Tehmina. The police, however, did not insert the relevant Section 324 of the Pakistan Penal Code into the FIR.
On Aug 23, a couple was arrested for torturing a teenaged houseboy and keeping him in illegal confinement. Mohammad Nadeem, 13 years old and a resident of Rahimyar Khan, was detained in a flat and subjected to torture. Upon raiding the flat, the police found him tied up in one of the rooms, apparently having been subjected to severe torture.
Many working children are young girls toiling as domestic help, unpaid in their own homes or paid a pittance in the home of others across the country. These girls constitute an invisible workforce in invisible workplaces. Their special needs demand particular attention. Child servants are routinely beaten and tortured, in some cases to death, as is evident from the reports mentioned above.
It is imperative that the federal and provincial governments take immediate steps. The federal government should immediately notify child domestic labour in the schedule of banned occupations under the Employment of Children Act 1991. Both the federal and provincial governments should prohibit government employees from employing children as domestic servants and should immediately start programmes for the rehabilitation of child domestic labourers. The effective implementation of the constitutional provision about free and compulsory primary education for children of five to 16 years could also be a good preventive step.
The writer is the executive director of the Society for the Protection of the Rights of the Child.

Published in Daily Dawn on November 28, 2010
http://www.dawn.com/2010/11/28/childhood-denied-by-arshad-mahmood.html

Child Rights and 18th Amendment

By Arshad Mahmood

THE situation of child rights in Pakistan demands immediate attention and action by parliament and the government to legislate for child protection, ban child domestic labour and put in place a comprehensive National Child Protection Policy.
Unfortunately, progress on the proposed National Child Protection Policy, the Criminal Laws Amendment Bill 2009 and a few other bills came to a halt following the passage of the 18th Amendment earlier this year. In May 2010 the National Commission on the Rights of Children Bill 2009 was sent back to the ministry of social welfare and special education by the law and justice division on the sole ground that parliament cannot legislate on the subject of children after the 18th Amendment. As a result the future of various bills and policies concerning children has become uncertain.
The Concurrent List has been deleted by the 18th Amendment, which has created confusion within the relevant ministries, departments and among other stakeholders on the legislative competency of the federal legislature and existence of coordination mechanism at the national level on the subject of children.
Article 25(1) of the constitution enshrines the foundational concept of legal equality of citizens and holds that “all citizens are equal before law and are entitled to equal protection of law”. Article 25(3) of the constitution recognises the special right of protection for children due to their vulnerability and states “nothing in this article shall prevent the state from making special provision for the protection of women and children”.
Further, Article 37(e) stipulates in relevant parts that the state shall “make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex.…”
Furthermore, according to amended Article 142(b), the federal legislature has the power to make laws with respect to criminal law, criminal procedure and evidence. On the authority of these articles it can be argued that, notwithstanding promulgation of the 18th Amendment and the consequent legislative devolution to provincial assemblies with regard to child welfare matters, the federal legislature cannot be prevented from making special provisions for children and from enacting legislation relating to children`s rights.
In addition to the constitutional obligations of the state towards children there are also international obligations of the state being party to international treaties. Pakistan has ratified a number of UN and ILO conventions; Article 4 of the UN Convention on the Rights of the Child that Pakistan ratified on Nov 12, 1990 made it obligatory on the state parties to take all appropriate legislative, administrative and other measures for the implementation of the rights enshrined in the convention.
The Committee on the Rights of the Child in its general comment No 5, `General Measures of the Implementation of the UN CRC, 2003` says that “when a state ratifies the Convention on the Rights of the Child, it takes on obligations under international law to implement it”. In para 40 of the GC 5 it has been stated that “the committee has found it necessary to emphasise to many states that decentralisation of power, through devolution and delegation of government, does not in any way reduce the direct responsibility of the state party`s government to fulfil its obligations to all children within its jurisdiction, regardless of the state structure”.
GC 5 clearly spells out that the federal government is responsible for fulfilling its obligation irrespective of the devolution and structure. The committee, in its concluding observations of 2003 as well as of 2009, has stressed on the need to legislate for the protection of child rights.
Pursuant to item no 3 in part I of the Federal List, “external affairs; the implementation of treaties and agreements…” is within the legislative realm of the federal legislature. Further, a new item (no 32) has been introduced under the 18th Amendment in part I of the Federal List mentioning the terms `international treaties`, `conventions` and `agreements` etc. This also enables the federal legislature to enact laws on subjects covered by international treaties, conventions and agreements.
However, there is a need to create clarity about this among the stakeholders (federal ministries and provincial governments) as presently even the law and justice division is raising objections to legislation which is in line with our international obligations, based on the assumption that the federal legislature cannot legislate on the subject.
Some fundamental rights which we believed would be taken care of but were ignored in the 18th Amendment include the Frontier Crimes Regulation and amendments in Article 247 (Administration of Tribal Areas) of the constitution. The 18th Amendment is silent on the issue of bringing any reforms in Fata. As a result, the status of child rights in Fata in the light of our constitutional and international obligations will remain a question mark.
The growing incidence of violence against children reminds us of the importance of legislation and mechanisms for the protection of children`s rights. Can the state and civil society protect children? Is it all about resources or poverty of will that has resulted in growing incidents of violence?
The Implementation Commission for the 18th Amendment should play its role; clarify the unnecessary confusion created by various ministries with reference to competence of the federal legislature to legislate about child rights in light of the state`s constitutional and international obligations. This will lead to the immediate adoption of a number of child-related laws that have been in the pipeline for years.

Published in Daily Dawn on October 03, 2010

http://www.dawn.com/2010/10/03/child-rights-and-18th-amendment-by-arshad-mahmood.html