[1]

The Institute for Social Justice (ISJ) Pakistan: www.isj.org.pk, [email protected], 00923350515076

Access to justice for foreigner children in Pakistani and Indian prisons1

There are estimated about 80 million children and young persons under 18 years of age in
Pakistan.2 A big majority of children is living without or with-poor access to health, education,
social services and facilities and justice; however, there are some good practices greatly by civil
society organizations for the promotion of procedures and mechanism which are helping children
to access justice.
Juvenile justice
By the end of 2012, there are reported to be 1,400 children 3 detained in various detention centers
of Pakistan for different serious and minor charge but this figure does not include children being
detained by the paramilitary forces. A national level law called the Juvenile Justice System
Ordinance (JJSO), 2000, provides protection to children in conflict with law. It gives guidelines
and procedures for treating a child from the time of arrest till his/her rehabilitation in the
community and realty provides to involve all the relevant stakeholders in this process. Initially it
encourages the system (police and judiciary) to keep a child away from the detention (lock ups
and jails) and in this regard the Ordinance gives provisions of releasing a child on bail in bailable offences and release the child on probation. It also suggests decreasing the imprisonment if
the court considers the imprisonment unnecessary.
The age of criminal responsibility
Unfortunately, the age of criminal responsibility in Pakistan is 7 in Section 82 of the Pakistan
Penal Code 1980, which is very low. However, the Ministry of Human Rights is pursuing for the
enactment of the Child Protection (Criminal Law) Amendment Bill 2009, which suggest
increasing the age from 7 to 12 years.
Foreigner Juveniles in India and Pakistan
In principle the juvenile justice law should apply to all children irrespective of the nationality but
in Pakistan and Indian foreigner children who come in conflict with law are not treated according
to the juvenile laws of both countries.
Each year Pakistani and Indian Border and Maritime forces catch many children along with adult
fishermen in the Arabian Sea for violating or trespassing demarcated borders, and also from dry
land porous borders. Foreigner children are treated like adults by the criminal procedural courts,
and given the same sentences as the adult foreigners are given. According to juvenile laws of
both countries, an action/offence carrying six month sentence is bail-able and upon conviction, a
child would be released on probation, but are not. All accused foreigner children should be
provided free legal aid at the expense of the State, but are not. Being juveniles, these children do
not receive or enjoy any legal rights given in the juveniles laws of both countries. Whereas,
according to the United Nations Convention on the Rights of the Child (UNCRC), detention of
these children should have been a last resort. When once their minor imprisonment/sentences and
also additional (which they have to go through is against the fines which they cannot pay because
they do not have money in either Pakistani or Indian jails) sentences are expired. Then both
1

This brief report is submitted with the Office of the High Commissioner for Human Rights by the Institute for Social Justice
(ISJ) Pakistan for 2013 theme access to justice for children. The ISJ is thankful to Abdullah Khoso for drafting this report.
2
UNDP Pakistan One United Nations Programme
3

http://tribune.com.pk/story/569426/child-rights-state-of-children-dismal-and-deteriorating/

[2]

The Institute for Social Justice (ISJ) Pakistan: www.isj.org.pk, [email protected], 00923350515076

countries start with counselor access/service which usually takes about four to five months,
which implies that they would be in detention centers for about 11 months minimum, more than
the sentence they are awarded by the criminal courts. Children caught by border agencies belong
to extremely poor working class and fishing communities. They lack resources to pursue cases
without some help from the States whereas both countries (Pakistan and India) 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. 4
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 redtapism.5
But in all these affairs, the positive practice is, there is continuously legal and other support by
the NGOs to these children which also include advocacy for the release of foreigner juveniles at
the time of arrest in minor cases like poaching in the Sea or border crossing without valid
documents. In this regard, governments provide spaces to NGOs and human rights activists to
make necessary arrangements for the release and repatriation of foreigner children.
These NGOs have been demanding from both countries to devolve/set up mechanism to address
the issues of foreigner juveniles and the UN may propose special Rules/Protocols for the
foreigner children in other countries prisons. Those Protocols should emphasis on the following
point:
-exiting arrested foreigners children should immediately be released and repatriated to
their countries (India, Pakistan else);
-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) upon verification
of their abodes; and
-those children who have been awarded sentences, three months before the completion of
their sentences, children may be provided counsellor access so that they may be
repatriated to their country upon completing their sentences;
-the deprivation of liberty should be a last resort for every child irrespective of the
nationality;
-foreigner juveniles should be provided legal assistance and legal protection and should
be considered or have the right to be innocent and the childs arrest should not be
considered the final proof of his criminal status; and,
-the child should be granted bail and released on probation.
The child protection and welfare act 2010
The provincial government of Khyber Pakhtunkhwa has enacted the Child Protection & Welfare
Act 2010 which provides procedures or guidelines to protect a child who is at risk. The Act
defines a child at risk: a child in need of protection who; (i) is at risk, including an orphan, child
with disabilities, child of migrant workers, child working and or living on the street, child in
4

Pakistan Institute of Labour Education & Research, Detained Fishermen: Trapped in a political game between Pakistan and
India, www.piler.org.pk/newfisherman01.pdf.
5
supra note 180.

[3]

The Institute for Social Justice (ISJ) Pakistan: www.isj.org.pk, [email protected], 00923350515076

conflict with the law and child living in extreme poverty; (ii) is found begging. 6 In order to
address needs of the child at risk, under the Act the child protection institutions, centers and
commission have been set up which are being run by the officials trained in the field of child
protection.
Cooperation with NGOs
It is encouraging to learn that government departments such as police, prison, labour, education,
health and judiciary have wholeheartedly welcomed NGOs and sought support in helping
children (juveniles and victims) to access justice. Without cooperation of the prison department,
NGOs can access children inside prisons and provide them legal and other necessary support.
Measures taken to address specific obstacles/ barriers faced by children in access to justice
Initially juvenile courts were set up right after the enactment of the JJSO but later on were closed
due to non-availability of funds and other complications. CSOs are continuously demanding
(advocating and campaigning) for the establishment of juveniles courts in at least in the
provincial headquarters and within provinces at regional level. The advocacy/campaigns are
continued.
However due to continuous follow up by the CSOs, district courts have notified panel of lawyers
in about 27 districts of Pakistan as is provided in the JJSO and its Rules for providing free legal
assistance to needy children at the expense of the state, however, these panel of lawyers are not
active due to no budgetary allocations for the panel of lawyers by the authorities.
The Prison Administrations in all provinces have encouraged CSOs to work inside prisons to
treat/rehabilitate children victims of drug abuse and provide legal aid to needy children. Across
the country in almost all prisons in Pakistan, CSOs have access to meet children and help them to
improve their life inside the prison and also to get released on bail, probation or else.
In order to address the issue of foreigner juveniles, Pakistan and Indian have not taken any
measures to address issues foreigner children face in accessing justice.
Systems in place to channel complaints by children, including helplines, school system,
social services, police stations, health systems
The Sindh Police with the support of the UN agencies have established special karo kari (honor
killing) cells in Sukkar, Naushero Feroz, Khairpur and Ghotki districts, and set up victim support
helpline (111-123-588) for victims of all ages. It has also arranged special trainings for senior
police officials dealing with honour killing cases. NGOs like Sahil and Madadgar NGOs have
also set up helplines for victim children. But most of these initiatives are project based which
should be integrated with the states departments frameworks.
SPARC NGO had established the child rights desks at five different police stations for the
protection of victim and accused children by providing access to all necessary legal and other
support. NGOs also established the Police Children Protection Centers were in Peshawar and
Quetta cities for the providing care, protection and support to children at risk. These centers and
6

Section 2 (e) of the Act

[4]

The Institute for Social Justice (ISJ) Pakistan: www.isj.org.pk, [email protected], 00923350515076

desks were closed when findings were ended, unfortunate these initiatives could not be made
integral part of the police departments.
In light of the study findings, the Sindh police undertook measures to improve police officials'
efficiency while handling cases of honour killing,
Recently the federal ombudsman has appointed the Commissioner for Children but unfortunately
the Commissioner has limited powers to address children complaints related to the federal
agencies, and also the Commissioner cannot take any steps against the culprits, the only mandate
of the Commissioner is to forward childrens complaints to the concerned departments.
The role of Ministry of Human Rights Pakistan and within it the national commission for child
welfare and development (NCCWD) is considered to be important institution but yet these have
not enforced their mandatory powers to curb crimes against children by effectively dealing with
childrens complaints and issues.
Participation of children in judicial processes (criminal, civil and administrative)
The Khyber Pakhtunkhwa (KP) Child Protection and Welfare Act, 2010, states that the Child
Protection Court (CPC) shall inform the child at risk of the situation and obtain his views before
making an order in respect of his custody and care. 7 This law does not apply in other provinces;
therefore, there is no set legal procedures for taking childrens views on the matters affecting
them.
Legal assistance for children
NGOs like SPARC have constituted their panel of lawyers in each targeted districts of Pakistan
for providing free legal aid to children. In the first place, these panels try to bring out the child
out of the detention centers on bail and then defend the rights of the child in the trial court. Each
lawyer member of the panel signs a contract with SPARC for providing legal assistance to the
child until the child gets justice, s/he would also not receive any fee/funds from the child or
his/her family. SPARC from 2008 to 2011, had provided free legal aid to more than 1780
children across the country. Sahil NGO in Adiala Jail Rawalpindi, SEHER in Balochistan and
Rehai in Camp Jail Lahore are also helping children to access justice without any legal fees.
However, these NGOs usually pay nominal fees to lawyers for the necessary expenses of the
documents.
The provincial Government of Sindh had allocated Rs220 million for the Committee for Welfare
of Prisoners and the Legal Aid Office for providing legal aid to needy and poor women and
juveniles. The Legal Aid Office being run by a retired Judge of the Supreme Court has
established local offices in various cities in this regard. Each child and women upon reaching in
the prison is interviewed and being asked to provide legal assistance.
Access to justice for child victims
According to a statement issued by a group of NGOs working in Pakistan, 8 CDWs are in millions
in Pakistan but there is no exact account of their numbers because of no survey on the issue.
7

Section 16 (2) of the Act 2010

See at http://www.isj.org.pk/statement-the-unending-plight-of-child-domestic-workers-in-pakistan/

[5]

The Institute for Social Justice (ISJ) Pakistan: www.isj.org.pk, [email protected], 00923350515076

These children are continuously sold, exploited, abused, sodomized, tortured and killed. It is
unfortunate that no other occupation in Pakistan has resulted deaths of children than child
domestic labour. The statement reveals that from January 2010 to June 2013, about 41 cases of
CDWs are reported in the media and by civil society organizations. Of these children, 19 died
due to severe torture inflicted on them or were poisoned to death by their employers. In this
regard, CSOs have launched unending campaign and demanding to ban child domestic labour. In
order to address the issue of child domestic labour, the provincial governments are considering to
ban it.
The provincial labour department in Khyber Pakhtunkhwa has established Legal Aid Service
Unit (LASU) in the Child & Bonded Labour Cell to provide legal assistance to labourers subject
to bonded labour.
According to Sahil NGO, there is surge in the child sexual abuse cases: 1,839 in 2008, 2,012 in
2009 and 2,595 in 2010.9 In 2011, 2303 cases and in 2012, 2788 child sexual abuse cases were
reported in the newspapers. In 2012, average eight children a day were abused and 71 per cent of
the children who suffered abuse were girls. The age group most vulnerable to sexual abuse
among girls and boys was 11 to 15 years. 10 Moreover, child victims and their families suffered
through the criminal justice system whereas there are no programs, policies or systems in place
to help victims of abuse seeking justice. 11 Sahil NGO has also been providing legal support
victim children and their families. By 2012, Sahil has provided legal aid to 558 children. Sahil
has 37 referral lawyers in 18 districts of Pakistan. Also SPARC NGO has panel of lawyers in
about 50 districts of Pakistan which provide legal support to victim children of abuse and
exploitation.
The transnational parental child abduction is gradually becoming common issue in Pakistan.
Although Pakistan has not ratified the Hague Convention on the Civil Aspects of International
Child Abduction, 1980, but Pakistani higher courts ruling and decisions are encouraging which
have returned children to their country of origin who were brought by their parents to Pakistan. 12
The CSOs are demanding the government of Pakistan to ratify the Hague Convention and also
allocate funds for victim children and their families; take extra measures for the protection of
victim and witness children and their families; ban child domestic labour and declare it a form of
slavery; and ban internal trafficking and place mechanism to address it.

Sahils Cruel Numbers of 2008 and 2009, 2010

10

http://tribune.com.pk/story/520476/sexual-abuse-protection-to-vulnerable-children-stressed/

11

Sahil (2008, 2009, 2010 and 2010) Cruel Numbers; Islamabad, Pakistan.

12

http://www.isj.org.pk/policy-research/pakistan-and-the-hague-convention-1980/