Prioritising child rights
I still remember media reports about a debate in 2012 in the National Assembly about the failure of the provinces to pass legislation safeguarding child rights following the 18th Amendment whereby child rights became a provincial subject. A parliamentary caucus was established then to look into the situation and make recommendations. It is worth pointing out that the federal legislature, too, had failed to pass legislation for the areas that fell under its jurisdiction, such as Islamabad Capital Territory (ICT) and Fata.
It is heartening to note, however, that the civil society, including the Child Rights Movement of Pakistan, continued to put pressure on the government through its consistent advocacy engagements at various levels, particularly in the aftermath of the Kasur child abuse scandal, to finally pass the long-awaited Criminal Laws (Amendment) Act 2016. The new legislation is important as it has improved protection of children in accordance with Pakistan’s constitutional obligations as well as its obligations to the UN Convention on the Rights of the Child (UNCRC) and its Optional Protocols on the sale of children, child prostitution and child pornography. The new amendments have touched on increasing the minimum age of criminal responsibility, protection of children from cruelty and from exposure to obscene and sexually explicit material, and criminalised child pornography and internal trafficking. It has rightly been stated in the Statement of Objects of the Act that “The safeguards provided in this Act will go a long way in protection of all children”.
For further clarity, I will briefly review the changes made to the Pakistan Penal Code (PPC). The age of criminal responsibility has been increased from seven to 10 years under Section 82 of the PPC. Similarly, Section 83 reads: “Nothing is an offence which is done by a child above seven years of age and under 12, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion”. Under Section 83, the word ‘seven’ has been replaced with the word ‘ten’ and the word ‘twelve’ has been replaced with the word ‘fourteen’. The judge is given discretionary power to decide the level of maturity. This means that the police cannot arrest or file an FIR against someone less than 10 years of age. However, in cases where a child is between 10 to 14, the police can arrest the accused after the filing of an FIR, and it will be up to the court to decide if the child should be given the benefit of Section 83 or not.
Similarly, Section 292-A, 292-B and 292-C have been added after Sector 292 of the PPC to protect children from exposure to obscene and sexually explicit material. Section 292-A states whoever seduces a child by any means whatsoever with the intent to involve him in any sexual activity shall be punished with imprisonment or a fine, or with both.
Section 292-B has defined and criminalised child pornography while Section 292-C details punishment for child pornography.
A new section — 328-A Cruelty to a Child — has been inserted, which protects children against willful assaults, ill-treatment, neglect, abandonment or an act of omission or commission that results in or has the potential to harm or injure the child physically or psychologically. It is a positive development that cruelty to a child has been made a criminal offence.
Section 369-A deals with the trafficking of people. Section 377-A, dealing with sexual abuse, has been added to the PPC, where sexual abuse has been defined and strict punishments have been introduced.
The struggle for child protection doesn’t stop here. The implementation of the above-mentioned legislation is a journey in itself. Pakistan is notorious for being a graveyard of laws. There is a need to create widespread awareness of these laws among stakeholders, as well as the enforcers of the criminal justice system, particularly the police, judiciary and lawyers. Civil society and the media must also be brought into the loop. It is strongly recommended that the age determination mechanism be refined as Section 82 and 83 and the JJSO in some cases largely depend on it. I would like to call upon the federal legislature to enact all other pending bills about children, including the National Commission on the Rights of the Child Bill, the ICT Child Protection and Welfare Bill, the Child Marriages Restraint (Amendment) Bill, the Prohibition of Corporal Punishment Bill and the Juvenile Justice System Bill.