The state must ensure the protection of children from corporal punishment through proper enforcement of law
Children’s rights are human rights. Every child has a right to respect and dignity. This is not only because they are future adults, but also that they are human beings. They must enjoy the fundamental rights enshrined in constitutional provisions and international commitments.
Pakistan ratified the United Nations Convention on the Rights of Child (UNCRC) in 1990. By signing this convention, the state took upon itself the obligation of discouraging religious, cultural, customary or traditional practices inconsistent with children’s fundamental rights. Article 19 of this convention addresses violence against children. It emphasises that state parties must have proper laws in place to prohibit violence. It also requires states to implement administrative, social and educational measures to protect children from all forms of violence, both physical and mental, falling under Article 19. The article states, “States parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”
The UN Committee on the Rights of the Child, in its concluding observations on the fifth periodic report of Pakistan, strongly urged the state to “eradicate and prohibit all forms of corporal punishment.” Similarly, The UN Committee against Torture in its concluding observations pressed the issue and recommended that Pakistan take “the necessary legislative measures to eradicate and explicitly prohibit all forms of corporal punishment in all settings, as they amount to torture and cruel, inhuman or degrading treatment or punishment, in violation of the convention.”
In 2016, lawmakers responded to the issue of cruelty to children through a criminal law amendment bill by inserting Section 328-A into the PPC, which criminalises cruelty to a child. However, there is a need to also amend Section 89, which serves as a defence for these accused of cruel punishment and abuse in the name of discipline or good faith.
In 2016, lawmakers responded to the issue of cruelty to children through a criminal law amendment bill by inserting Section 328-A into the PPC, which criminalises cruelty to a child. However, Section 89, which serves as a defence for those accused of cruel punishment and abuse in the name of discipline or good faith, has yet to be amended.
It is pertinent to mention here that our apex courts are also vigilant in this matter. The Apex court laid a test in the Tayyaba case by determining when an act would result in “cruelty to a child.” Islamabad High Court was pleased to hold in a writ petition by Zindagi Trust that “Corporal punishments are not in consonance with the constitutionally guaranteed right of inviolability of dignity notwithstanding Section 89 of the Pakistan Penal Code, 1860.” Recently, a judge of Lahore High Court, Justice Shahid Jamil, has taken notice of some recent incidents of corporal punishment in schools in Lahore and Muridke in a writ petition Syed Miqdad Mehdi vs Government of the Punjab and sought a report from the government. The honourable court was informed that the government has drafted a bill to prohibit corporal punishment in the Punjab.
It is encouraging that the government of Khyber Pakhtunkhwa has banned corporal punishment by introducing Section 33 of The Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010. which 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, 1860”. The Sindh government has banned corporal punishment through excellent legislation, The Sindh Prohibition of Corporal Punishment Act, 2016. The Government of Balochistan banned corporal punishment in schools through a directive issued in 2010, and The Balochistan Child Protection Act 2016 bans all forms of physical violence. A private member’s bill introduced by a member of an opposition party was also passed with the support of treasury benches members. This legislation, known as The Prohibition of Corporal Punishment Act, 2021, has nullified the effect of Section 89 for Islamabad Capital Territory. It says, “Notwithstanding anything contained in Section 89 of the Pakistan Penal Code, 1860 (Act XLV of 1860) and any other law and regulation for the time being in force, corporal punishment of children by any person is prohibited.”
It is the state’s responsibility to ensure the protection of children from corporal punishment through proper enforcement of these laws.
Unfortunately, comprehensive legislation to deal with the issue of corporal punishment in the province of Punjab is still missing. The Punjab government banned corporal punishment in provincial (public and private) schools in 2018 through the notification dated 23-01-2018, following the orders of honorable chief justice of the Lahore High Court in a petition. Corporal punishment is also prohibited under Section 16 of the Punjab Free and Compulsory Education Act, 2014, but the law is yet to be notified for implementation.
The writer is a children’s rights activist and a law practitioner in Lahore. He Tweets as @miqdadnaqvi