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