Dear friends,
We wish to share with you the following article from Society for the Protection of the Rights of the Child (SPARC), written by Abdullah Khoso.
Asian Human Rights Commission
Hong Kong
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An article from Society for the Protection of the Rights of the Child (SPARC) forwarded by the Asian Human Rights Commission
Abdullah Khoso
This article (the text) has been published with SPARC’s annual report on the State of Pakistan’s Children 2010 in its chapter “The JJSO: Caught in the Quagmire of Non-implementation” written by Abdullah Khoso, National Programme Manager with Society for the Protection of the Rights of the Child (SPARC). abdullahkhoso@hotmail.com.
Pakistan shares its borders with Afghanistan, China, Iran and India. These shared borders are porous as on both sides of the border live communities that share language and culture and visit each other due to a lack of security bars at many sections of the border. The border security agencies arrest adults and children mainly on charges of absence of travel documents and crossing borders; some of them are alleged in terrorism and smuggling activities. In Sindh, in the Arabian Sea, along with adult fishermen, children are arrested by the Pakistan Maritime Security Shipyard Karachi and tried under the Foreigners Act 1946 and the Fisheries Ordinance 1980. Similarly, the Indian Maritime Security Agencies do the same with children and fishermen.
On June 9th 2010, SPARC’s team visited the Juvenile Ward in Quetta. There were four Afghani juveniles below 17 years of age: Liaqat son of Ahmed Ali, Akhtar Mohad, Zahir son of Ramzan and Dolat Shah son of Qurban Ali. The only wrong they had done was that they were in Pakistan for safety and security which they do not have in Afghanistan. They should have been deported to their Country immediately or the Judicial Officer may have asked the Government to do so, but nobody has concern for these foreigners and there is no mechanism to deal with foreigner juveniles whereas under the Constitution of Pakistan, foreigners may enjoy rights as human being. After six months, on December14th 2010, a SPARC representative met with 80 Afghan juveniles in the same jail. These children claimed that they and their parents had been living in Pakistan for several years and were arrested under the Foreigners Act. In February 2010, the Government of Sindh released 106 Afghani nationals from Central Prison–I Sukkur, a great number among them were minors. They were arrested from Larkana and Sukkur regions and sentenced for 8 months. (1)
Pakistani jails each year receive scores of Afghani children caught and sentenced under the Foreigners Act but it is unknown how many Pakistani children (young people who were children at the time of their arrest) are detained in jails in Afghanistan. There is a high probability that young children from the tribal areas of Pakistan who went to fight against the NATO forces in Afghanistan and Tribal Areas of Pakistan are detained either in Afghanistan or somewhere else. In 2008, the Islamabad High Court had directed the Ministry of Foreign Affairs and the Interior Minister to submit a report about the 150 children allegedly imprisoned in Afghanistan. Barrister Mohammad Javed Iqbal Jafree had filed a petition for the recovery of 150 children from Afghanistan who were taken by the US Government with the help of the Pakistani secret agencies. (2) Two of them were Saji-Ur-Rehman and Mohammad Omer. (3)
Saji was born in 1984 and belonged to the Province of Punjab and Omer was born in 1986 and belonged to Sindh Province. They had spent three months in a jail in the heart of Afghanistan and then were given into American custody. At the time of their arrest they were minors.(4) Some other names of minors arrested by the Afghan and American forces include Khalil Rehman Hafeez, Sultan Ahmed and Zafar Iqbal. It is reported that after spending many years at Guantanamo Bay in Cuba, they were repatriated to Pakistan but it is unknown where they are right now.
Although China and Pakistan share very good terms, nevertheless, a 17 year old Pakistani boy Noor-ul-Islam son of Sher Baz was not spared and handed the sentence of life-time imprisonment till death. Noor is detained in Shisen Prison in Urmuqi, China. (5) Noor was sentenced by an Urumqi Xinjian Aksi City Court in China after his arrest by the Police at Urumqi’s Nanmen market on 27th July on account of his alleged participation in the demonstrations in the XUAR on 5th July. The Police informed the family that Noor was suspected of having thrown stones at people on that day in which a person was reported to have died. The account reveals that from the time of arrest till awarding a sentence to Noor, no provisions of the United Nations Conventions on the Rights of the Child (CRC) and the Covenant on the Civil and Political Rights were respected in any way.
On 4th May 2010, SPARC wrote a letter to the Chinese Ambassador, Luo Zhaohui, in Pakistan about the violation of the rights of Noor son of Sher Baz in China and requested for his intervention to release Noor from the sentence of life-time imprisonment till death. On 26th May 2010, the Chinese Ambassadorial staff in Islamabad sent a letter to SPARC enclosed with a press release title ‘The Truth of the Case of Noor-ul-Islam Sherbaz’ by the spokesman of the Chinese Embassy in Islamabad. From a thorough review of the press release, it was ascertained that the Chinese Court had not awarded the death sentence because of his age below 18 years and claimed that Noor was provided legal aid whereas Sherbaz claimed that Noor’s trial was not according to the spirit of justice. However, in purview of Article 37 of the UNCRC, the death sentence and life imprisonment without the possibility of release are prohibited for offences committed by a person below 18 years.
SPARC in another letter written on 31st May 2010 to the Chinese Ambassador showed serious concerns about the life imprisonment till death to Noor without the possibility of release or minimum detention along measures to rehabilitate him into society. But no response was received from the Embassy.
During the year, only one case of a Pakistani juvenile, Mohammad Asif son of Abdul Rasheed Brohi was reported detained in an Iranian prison. Asif’s mother told a news reporter that her son has been detained for the last eight months on charges of involvement in narcotics and Asif’s case had not concluded. She also shared that her three brothers had requested for her to take Asif to Iran for business purposes but they involved him in the narcotics trade. She had travelled to Iran to meet with her son but the authorities did not allow her to meet with Asif.(6) In Pakistan there are a number of Persian(7) children found in jails but they do not belong to Iran.
The case of Pakistan and India is very sensitive because they are termed two rival countries from the very first day of separation in 1947. They have fought three wars and are still not on good terms. As a result of their unending and unreasonable rivalries, people, mainly children suffer a lot if they mistakenly enter into the other country, or when they are captured from the Arabian Sea by the Maritime and Coast Guard agencies.
On 3rd November 2009, during an Indus Television programme in the YOIS Karachi on the ‘life of juveniles in jails’, SPARC learnt about nine Indian fisher boys who had completed their sentences and were seeking their repatriation to India for two months. In November, SPARC wrote a letter to the Chief Justice of the High Court of Sindh for releasing and repatriating nine Indian boys. The Chief Justice Sarmad Jala Osmani took suo moto notice of the extra judicial detention of nine Indian fisher boys in the YOIS Karachi. The CJ converted the letter into a Constitutional Petition (D-2468) and summoned hearings (SPARC 2009). At the end of December 2009, the Government of Pakistan released 100 fishermen including the nine boys. When even the nine boys were not released, on December 2nd 2009, the two fisher boys (Jenety son of Dewa and Mahesh son of Meg Jee) were arrested along with 14 adult fishermen by the Pakistan Maritime Security Shipyard Karachi (8) and tried under Section 3/4 of the Foreigners Act 1946 and Section 3/9 of the Fisheries Ordinance 1980.
On April 13th 2010, SPARC representatives requested to the Chief Justice Sarmad Jala Osmani during the hearing of the case that:
-foreigner children immediately be released and repatriated to their country (India);
-children arrested in the Sea or elsewhere in minor cases like border crossing and fishing in Pakistani waters upon arrest be sent back to their countries (violation of border crossing and poaching in Pakistani areas carries a few months sentence); and
-those children who have been awarded sentences, two months before the completion of their sentence, children may be provided counsellor access so that they may be repatriated to their country upon completing their sentence;
It was implored that the deprivation of liberty should be a last resort for every child irrespective of the nationality; it is unfortunate that a foreigner juvenile is not provided legal assistance and legal protection; he is deprived of the right to be considered innocent; his arrest is the final proof of his criminal status; and he cannot be granted bail and released on probation.
SPARC representatives urged the CJ to take all the available legal steps for the release and repatriation of the two foreigner juveniles, Jetey and Mahesh, being detained at the YOIS Karachi or in other prisons of the Province.
On April 13th, the CJ SHC ordered the Civil Judge and Judicial Magistrate West Karachi to dispose of the cases against the two Indian boys within two weeks and report back to the Court on April 22nd.(9) On April 21st 2010, the SPARC representative appeared in the Court and pleaded for the withdrawal of the cases against both the children and for their immediate release.
The Court said that both juveniles had confessed that they were fishing in Pakistani waters; therefore, it directed the Home Department of the Government of Sindh to repatriate both the boys to their home country since they had completed the four month sentence given under Section 243 (10) of the Criminal Procedure Code with the benefit of Section 382 (11) of the CrPC.
The CJ High Court of Sindh also endorsed the decision of the Lower Court and directed the Home Office Sindh to take measures for the repatriation of both the boys. (12) Unfortunately, the Provincial and Federal Governments did not take an interest in the repatriation of both the boys and provided counsellor access to them after a month, shared by the administration of the YOIS Karachi where the children were detained. In light of the given indifferent attitude of both the authorities, SPARC and DCI (Defence for Children International) released a couple of press statements and wrote letters to the authorities in Pakistan and at Geneva in which DCI and SPARC termed the extra-confinement of the children as against Article 9 of the Constitution of Pakistan and the spirit of the United Nations Convention of the Rights of the Child (CRC), and requested the Indian and Pakistani Government to take reciprocal measures and release and repatriate the children languishing in jails on both sides. At the same time, SPARC urged the Government to amend the Foreigners Act, Fisheries Acts and Passport Acts to exempt children under 18 years of age from being tried under these laws.
In August 2010, on the orders of Supreme Court of Pakistan, the Federal Government decided to repatriate 442 Indians including two juveniles. (13) Pakistan Fisherfolk Forum and Pakistan Institute of Labour Education and Research (PILER) had filed a petition in the Supreme Court against extra judicial confinement of 442 Indian fishermen including the two boys. As a result of the petition, the Supreme Court asked the Government to repatriate the fishermen who had completed their sentence. In September, all 442 including the two boys were released via the Wagha border. (14)
An Indian boy, Rajat Kumar, not unlucky like the fisher boys, was handed over by the Pakistan Rangers to the Indian authorities. The boy had inadvertently crossed the border. (15)
There are also a number of Pakistani children reported as detained in Indian jails e.g. on January 12th 2010, 13 year old Attique Ahmad s/o Malik Iftikhar boarded on a train to escape punishment from his father on the account of flying a kite. The train took him to the Lahore Railway Station from where he boarded another train without knowing that it was the Samjhota Express, and he reached India. The boy was produced before the Principal Magistrate for Juvenile Justice at the Amritsar District Courts on February 19th. Attique was a student of class seven. (16) Attique mistakenly entered India without valid papers and was arrested at the Attari Railway Station and charged under the Foreigners Act of India 1946.
The Human Rights Commission of Pakistan took the matter seriously and pursued the case in India. At the same time, human and child rights organizations, including SPARC, in both countries requested the Indian Government to release Attique.(17) On 11th March, Attique was released by the Court in India and reunited with his family in Lahore through the Wagha border. (18)
By the end of 2010, 16 year old Bilawal, Rashid, 13 year old Babar Naseem, Adnan and Rafaqat were reported detained in the Indian Juvenile Jail Hoshiarpur; 17 year old Tayyab Tahir Jamil in Sri Krishna Ganga Nagar Jail; 18 year old Mubashir Ali, was reported imprisoned at Central Jail, Kot Balwal; 15 year old Nuaman Arshad in Amritsar Central Jail; and Sunil Khan in Faridkot’s Jail (Bhatia 2010) (19) . These children inadvertently crossed the borders and were arrested by the border security forces and Rangers or caught by the Maritime Agencies in the Arabian Sea while fishing along with adult fishermen. Tayyab had mistakenly crossed into Indian Territory through Cholistan border, after developing a dispute with his family.(20) Nauman out of curiosity had boarded a bus from Lahore to the Wagha border. In the Indian Territory wondering around, he was arrested by the Border Security Force. He was interrogated and subjected to third degree torture by the Police and considered to be suicide bomber. (21) Bilawal hails from Karachi and was the only breadwinner of his family. He along with four other fishermen was arrested by the Indian BSF from the open sea in April 2010. (22)
Babar Naseem is reported to be in Bhalwal prison in the Indian part of Kashmir. He belongs to Lower Dir; and in 2009, Babar was kidnapped by two armed men in a car from Tamirgarh Bazar where he used to work as an apprentice with a welder. After many months, the family received a letter from Babar from Bhalwal prison. His family has made efforts but he has still not returned. (23)
In the history, there are accounts of various grave violations of human and child rights by both sides’ authorities. In the 1970s, a 15 year old boy Lakhapna was arrested by the Indian authorities at his sixteenth unlucky attempt of watching a movie in a theatre on the Indian side. He used to travel by the Samjhota Express and slipped through the tall wheat and bushes along the dividing borderline. He spent 16 years of his youth in an Indian Jail (Bhatia 2010) (24).
8 year old Asif Khan, the youngest inmate, was arrested nearby Wagha in July 2002 when he was even unable to recall his village’s name. He spent four years in Faridkot Jail and with the help of a kind Deputy Commissioner was repatriated to Pakistan. (25)
Two years ago, 14 year old Sunil Asharaf along with his friends, Yawar Daniyal and Rameez Pathan, travelled from Lahore to India to watch the IPL cricket match. They crossed through Kasur Ghanda Singh border and were arrested by the Indian Police. They were charged under the Passport Act 1967 and the Foreigners Act 1946. After three months, High Court Patna had released Sunil but he has not yet been released from the Fareedkot prison in India. (26)
Four years ago, 16 year old Javed Ahmed resident of Dialpur (Punjab) was missing. After some years, Javed’s family received a letter from Javed and learnt that he was in Amritsar Jail in India. The family of Javed did not know how he had reached India. His family has written request letters to the concerned authorities; all was useless. (27)
Another aspect to the plight of these children is the economic status of their families. They lack resources to pursue cases without some help from the States whereas both States are bitter enemies; therefore, no efforts are put to release the innocent children who cross the borders inadvertently and are caught from the Arabian Sea while poaching along with adult fishermen. (28) Some children cross borders after they get into a fight with their parents and seek to begin a new life in India or Pakistan, without knowing that this requires a passport and a visa. Most children belong to poor backgrounds and have no political awareness. In Jails, they overstay due to red-tapism. (29)
Most of Pakistani children currently detained in Indian jails have completed their sentences but are not released and repatriated because they are not provided timely councillor access. The councillor access is processed through which the embassy related to the juvenile’s country arranges documents for the juvenile
India and Pakistan should amend their respective Foreigners Acts and Fisheries Ordinances/Acts in which children should be given exemptions so that these laws comply with the United Nations Conventions on the Rights of the Child which both countries ratified in 1990.
Crossing the border and not having a passport may not be considered an offence or crime under these Acts when committed by children. According to the CRC, such arrest is arbitrary which is against the essence of juvenile justice envisioned by the CRC and their detention beyond the time of their sentence is also illegal and a violation of children’s rights. Sentences under the Foreigners Acts (inadvertently crossing border) and Fisheries Ordinance are completely against the best interests of children. Under these Acts of both the Countries, children of other countries have no right to legal counsel and their sentence is a must (final) under these laws. According to Article 37, detention must be used as a last resort but in this case detention is the final and ultimate decision and for an unknown period of time.
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Footnotes:
1 ‘Illegally entered 106 Afghanis released after completing their sentences’; Daily Kawish, February 25, 2010.
2 ‘Foreign, interior ministries asked to respond within two weeks: Imprisoned children in Afghanistan’; November, 7, 2010; Accessed at <http://archives.dawn.com/2008/11/07/nat7.htm>.
3 United Stated Department of Defense, List of Individuals Detained by the Department of Defense at Guantanamo Bay, Cuba from January 2002 through May 15, 2006,United States Department of Defense, US, viewed on 7 December 2010, at <http://www.dod.mil/news/May2006/d20060515%20List.pdf>.
4 ‘Saji Ur Rahman’ 2010, Wikipedia, viewed on 7 December 2010, at <http://en.wikipedia.org/wiki/Saji_Ur_Rahman>.
5 Pasha, F. K., ‘Man seeks help for son’s release from Chinese prison’; The News International, May, 4, 2010.
6 ‘For the last 8 months, a boy from Khadro is detained in Iran under narcotics case’; Daily Kawish 2010, 30 May.
7 A popular language in Iran
8 ‘Two Indian Fishermen released,’ The News International, April 22, 2010.
9 supra note 168.
10 Conviction on admission of truth accusation.
11 Postponement of the execution of a sentence of imprisonment under Section 476 of the Criminal Procedure Code (CrPC).
12 ‘Calls for repatriation of Indian boys,’ The News International; May 11, 2010.
13 ‘Over 400 jailed Indian fishermen set to be freed’; Dawn, August 29, 2010.
14 ‘Last batch of fishermen released’; Dawn, September 7, 2010.
15 ‘Pakistan hands over child to India’; Daily Times, June 16, 2010.
16 ‘Schoolboy’s ordeal’; Dawn, May 3, 2010.
17 Siddiqui, Z. M., ‘Lucky boy returns home safely from India’; Dawn, March 13, 2010.
18 Lodho, A., ‘I didn’t stowaway, I was abducted’; Daily Times, March 14, 2010.
19 Bhatia, R. K., ‘Not all who sneak across are terrorists’; The Times of India, February 7, 2010: Accessed at <http://timesofindia.indiatimes.com/india/Not-all-who-sneak-across-are-terrorists/articleshow/5544025.cms>
20 Mehdi, A., ‘Three youths in Indian jails despite having served terms’; Dawn, April 2, 1010.
21 Jolly, A., ‘Efforts continue to help Pakistani schoolboy in Indian prison’; The News International, April 7, 2010.
22 Khaskheli, J.,‘A desperate search for a grandchild’; The News International, May 20, 2010.
23 ‘Woman seeks release of son from Indian jail’; The News International, May 27, 2010.
24 supra note 180.
25 Ibid.
26 Sajjad, M. Pakistani boys detained in Indian Jail’. trans. Jehd-e-Haq, Human Rights Commission of Pakistan, September, 2010: p 23.
27 Hammad, A. H., Request to get released from India’; trans. Jehd-e-Haq, Human Rights Commission of Pakistan, June: 2010 p23.
28 Pakistan Institute of Labour Education & Research, Detained Fishermen: Trapped in a political game between Pakistan and India, www.piler.org.pk/newfisherman01.pdf.
29 supra note 180.
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