FCR, the JJSO and children and human rights

According to the Convention on the Rights of the Child (CRC), under Section 21 and 40, a child shall not be deprived of his or her liberty unlawfully or arbitrarily and if a child is arrested then his or her detention or imprisonment shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. The child should be given a fair trial/hearing and be represented by legal counsel of his or her choice, and have the right of appeal against the conviction and sentence. However, all such rights are usurped by the FCR. The FCR also contradicts Article 8, 9, and 10 of the UDHR. FCR also violates provisions of the international covenant on civil and political rights, 1966.

In view of Pakistan’s international obligations in respect of various agreements ratified by the government of Pakistan, such as the CRC, and in order to rectify some of the oppressive laws imposed on the children of FATA through the FCR, on 22 November 2004, the Juvenile Justice System Rules KP were extended to FATA. However, beyond mere words on paper, the government made no infrastructural arrangements which are essential to the implementation of the law. Six years down the line, FATA does not have juvenile courts, a probation system, borstal arrangements, nor any system in place to protect the rights of juveniles. Rather, grave abuses of child rights have been witnessed in FATA even after the JJSO were extended to the region. (Amnesty International 2008)

The FCR applies to all residents of FATA irrespective of age or sex. Thus, these black laws are applied across the board, on young or old men and women, and children as young as two or three years old, in fact, even on infants. Women and girls are considered a commodity and their right to own or inherit property is not recognized under the FCR. Minor girls and women are given in ‘Badal’ by members of one clan or tribe to another in settlement of rivalries. The FCR, in fact, negates all the rights and guarantees granted to women in Islam, and by the laws of Pakistan. (Bibi 2005)32 The UN Committee on the Rights of the Child (CRC), in its concluding observations on Pakistan’s 2008 reports has expressed grave concern that the FCR is still in force in FATA.

According to SPARC’s annual report 2009, in December 2009, it was reported that 14 children were detained under the FCR. In 2004, the annual report of SPARC had reported that about 70 children had been detained under the same law. None of these children were being treated, or tried, under the set procedures of the JJSO.
In 2004, during a visit to Haripur Central Prison, the SPARC team met with 21 women and children who were members of a fugitive’s family. The women and children had been convicted under section 40 of the FCR. They were arrested after the wanted man had escaped arrest. The government, however, claimed that these women and children were, in fact, being kept in protective custody in order to shield them from any offence done against them by the people of Lakki Marwat whom the fugitive had allegedly enraged. In 2005, SPARC learnt that there were more than 25 women, children, and juveniles in the Central Prison, Dera Ismail Khan, who belonged to the Betani tribe, who had been arrested in lieu of the actual fugitive, who was himself a member of the same tribe. On the same pretext, an old lady was imprisoned under the FCR along with nine of her relatives including a one and a half year old girl. The elderly lady informed SPARC that the police of Lakki Marwat and Bannu had raided their home in the presence of the Assistant Political Agent of the Lakki Marwat Region and they had been arrested simply because they happened to be related to a notorious criminal (SPARC 2005).