Dear friends,
We wish to share with you the following article from Qindeel Shujaat, pakistan.childrightsdesk.com.
Asian Human Rights Commission
Hong Kong
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An article from Qindeel Shujaat, pakistan.childrightsdesk.com, forwarded by the Asian Human Rights Commission
PAKISTAN: Khyber-Pakhtunkhwa Child Protection and Welfare Ordinance 2010: Two Steps Forward- One Step Back
An Ordinance, titled “The Khyber Pakhtunkhwa Child Protection and Welfare Ordinance 2010” (KPCP&WO 2010) was promulgated by the Provincial Government of Khyber Pakhtunkhwa last month. Although this Ordinance was promulgated on 9 June 2010, I came to know only when it was shared by Provincial Minister for Law and Parliamentary Affairs Arshed Abdulla, Minister for Information Mian Iftikhar Hussain and Minister for Social Welfare Sitara Ayaz through a Press Conference held on July 15 in Peshawar.
Beside one article which was published in one national daily on this development, I found it a bit strange that no one had taken notice of this very important Bill which was lying with the Provincial Assembly for last many years, and went through number of revisions, discussions and debates.
Initially I was quite pleased with what I had heard from the reports of press conference published by various national dailies. However, after going through the KPCP&WO 2010, I have mixed feelings. Some steps are taken in right direction and are progressive in nature. On other hand, there are issues that must be addressed if this law has to be implemented in true spirit. It is because the feedback given to the Ministry over last years was largely not incorporated. It must be noted that the session of the Assembly is now in-progress, and this Ordinance is on the agenda of Assembly for its approval and enactment before its expiry on 5 September 2010r.
I have done a quick reading of this 22 page Ordinance, and would like to share some of the major issues with this Ordinance. I am hoping if something can be done to address anomalies before it is tabled in the Khyber-Pakhtunkhwa Assembly.
KPCP&WO 2010 deals with both civil law[1] and criminal law[2]. One of the major achievements noted from Press Conference was that “Corporal Punishment completely prohibited and abolished”. Article 33 states that “Corporal Punishment stands abolished in all its kinds and manifestations and its practice in any form is prohibited as provided under section 89 of the Pakistan Penal Code.”… The punishment prescribed for this offence is up to six months imprisonment, fifteen thousand rupees or both.” There is another provision in the law Article 44 that protects children from cruelty. The second paragraph of Article 44 is worth reading, it states ” … provided that where some reasonable punishment, not corporal punishment, in good faith is administered to a child by the person having lawful control or protective care of the child as parents normally would do for the betterment of the child, it shall not be deemed to be an offence under this section” In simple words, any punishment given by parents, guardians, and others which are commonly practiced is schools, madrassas and institutional care are permissible because it is done for the betterment of the child.
First the Article 33 is contradictory in itself. “Corporal Punishment stands abolished….. as provided under section 89.” In contradiction to this, Section 89 of the Pakistan Penal Code (PPC, 1860) allows parents, teachers and other guardians to use corporal punishment as a means to discipline children under 12 years old. Secondly, it is unclear from the Ordinance as what ‘reasonable punishment to a child’ means. Although corporal punishment is reasonably defined under this Ordinance, but there is no clear distinction which can be made between “corporal” and “reasonable” punishment. Different researches on the matter have confirmed that corporal punishment is widely practiced in homes, schools, madrassas, orphanages, jails and parents, teachers and guardians use it as a tool to disciplining a child. It is a matter of grave concern that this law endorses corporal punishment, and it appears that the drafter of this Ordinance was not very clearer on concepts.
Another issue which I can see is with prescribed punishment for “Sexual Abuse” under this law. The definition of “sexual abuse” under this law covers many forms but does not explicitly define intercourse or penetration. It is a good provision on matters related to molestation because there are no laws in Pakistan that specifically deal with the abuse of male children or attempt to sexual assault not involving penetration. However if it involves penetration, the punishment for sexual abuse has been lowered down if the nature of crimes are of rape and sodomy. Article 53 says that “whoever commits an offence of sexual abuse shall be punished with imprisonment for a term which may extended to fourteen years and shall not be less than seven years” Whereas the minimum punishment for rape under Pakistan Penal Laws (PPC Section 376) is imprisonment not less than 10 years or more than 25 twenty five years and the offender is also liable to fine. There are different punishments under Pakistan Penal Code depending upon the nature of sexual abuse such as Unnatural Offences (Section 377), Procuration of minor girl (Section 366-A). Section 364-A of the Pakistan Penal Code, 1860 says that if any one kidnaps or abducts any person under the age of fourteen years to the lust of any person or to be put in danger of being subjected to the lust of any person that person shall be punished with death or imprisonment for life or rigorous imprisonment which can extend to fourteen years and the imprisonment cannot be less than seven years in any case. Further more sections 365-B, 366-A, 366-B, 367-A, 371-A, 371-B, 396-A of the Pakistan Penal Code, 1860 and section 3 (iii) of the Prevention and Control of Human Trafficking Ordinance, 2002 are relevant in this regard and cover offences of kidnapping/abduction/seduction or inducement for the purposes of compelling some women to marry against her will or using some one for illegal intercourse or unnatural offences or prostitution etc.
Child Trafficking is punishable under this Ordinance. Unfortunately it does not address internal trafficking, and only cover situations where children are trafficked into or out of Pakistan.
This Bill provides basis for establishment of a Child Protection and Welfare Commission, Child Protection Units, Child Protection Institutes, Child Protection Court, Child Protection Fund and appointment of Child Protection Officers. The Commission may constitute a Committee as it deems necessary for any purpose for the implementation of this Ordinance.
The Section “Definitions” defines “Child at Risk” and cover broad range of children who are in need of protection, which include “orphans, child with disabilities, child labourer, street children, children in conflict with law, children who are living in extreme poverty, beggars, children living in a brothels or with prostitutes, etc.
Juveniles who come in contact with the law fall in “Child at Risk” category but this law fails to address the needs of such children. In powers entrusted to the Commission, Article 4(o) identifies one of the functions of the Commission is to revise the minimum age of criminal responsibility to a nationally acceptable level. At a moment, the national acceptable level is too low at seven years of age. It can be hoped that the Government of Pakistan will raise the minimum age of criminal responsibility to 12 years of age. Part VII deals with “sentencing of a Child” which seems irrelevant to the context of this law. Article 31 states ” a child above the age of twelve and below the age of fifteen, when convicted may be asked to perform a community service through probation office” If the offender is above the 14 years of age, up to half of the imprisonment prescribe for the offence may be given. A child can also be fined provided that there shall be no imprisonment in default of the payment of the fine. Article 32 says that a child above the age of fifteen and below the age of eighteen when convicted shall be treated in accordance with the provisions of Juvenile Justice System Ordinance 2000.
One can derive from above provisions that there are four slabs devised age-wise for children who commit any offence. These slabs are from ages 7 to 12, 12 to 14, 14 to 15 and 15 to 18. This law is silent for children who are above 7 years of age and less than 12 years. Article 61 says that the provisions of this Ordinance shall have an over-riding effect unless any other law provides higher protection for children. No doubt, these slabs provide comparatively higher protection than our existing criminal system for juvenile convicts. It is unclear which court will take the cognizance, i.e. Child Protection Court (to be established under this law) or Juvenile Court (yet to be established in Khyber-Pakhtunkhwa). Child Protection Court defined under this law is primarily dealing with matters of custody, whereas the role and relation with Juvenile Court is not properly established in this Law. Article 31(2) provides that the Court may order the fine to be paid from the Fund if a child is destitute, without parental care and/or his parents or lawful guardians are incapable of making payments on his behalf.
This Ordinance also mentions under functions of the Commission to coordinate with National Commission on the Rights of the Children (NCRC). So far, this Commission is not established at the Federal level waiting for the enactment of NCRC Bill.
This Ordinance has repealed the West Pakistan Vagrancy Ordinance 1958 and North West Frontier Province Orphanages (Supervision and Control) Act 1976. The repeal of Vagrancy Ordinance is welcomed. It is because the Vagrancy Act had authorized Police officers to take children into custody on charges of vagabondism. The repeal of North West Frontier Province Orphanages (Supervision and Control) Act 1976 does not make any difference because it was not implemented. Rules were not framed. and the Board was not constituted for issuing and monitoring orphanages. Thus it is very relevant that Rules and Regulation for this newly enacted Ordinance must be formed at earliest. Minimum standards and system of child protection should be integral part of Rules.
The Government should constitute the Commission, and notification of the members should be made. There will be six members from civil society on this Commission which must be carefully selected based on their experiences and knowledge of child rights.
These were some burning issues that I wanted to highlight. There are more issues with custody and maintenance of children in this law, and need a closer review of each and every provision.
[1] Civil law deals with the disputes between individuals, organizations, or between the two, in which compensation is awarded to the victim.
[2] Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses.
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