Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, penal institutions and alternative care settings.

We have been unable to establish whether or not a “right” to administer “reasonable punishment” or similar is confirmed in written legislation, but legal provisions against violence and abuse are not interpreted as prohibiting all corporal punishment in childrearing. The near universal acceptance of corporal punishment in childrearing necessitates clarity in law that all such punishment is unacceptable and unlawful. Explicit prohibition should be enacted of all forms of corporal punishment, however light.

Explicit prohibition should be enacted in relation to all institutions accommodating children in conflict with the law and all alternative care settings, including public and private day care, residential care, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Provisions against violence and abuse in the Penal Code, the Constitution (1996) and Act No. 06/PR/2002 on the promotion of reproductive health are not interpreted as prohibiting corporal punishment in childrearing. As at November 2010, a draft Family Code, draft Child Protection Code and draft amendments to the Criminal Code were under discussion.

Schools

Corporal punishment is unlawful in schools under article 113 of Law No. 016/PR/06 on the education system, which prohibits physical ill-treatment and all other forms of violence and humiliation.

Penal system

Corporal punishment is unlawful as a sentence for crime under Act No. 07/PR/99 (1999) concerning criminal procedures for children aged 13-18 years and Act No. 04/PR/98 on the organisation of the judiciary. The Constitution (article 18), the Penal Code (article 247) and Act No. 06/PR/2002 prohibit torture and degrading and humiliating treatment.

There is no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions. Article 9 of Decree No. 269/PR/MIS/IGSP/95 (1995) on the Code of ethics of the national police states that the use of force should be limited to what is strictly necessary and commensurate to the goal to be achieved, and article 10 prohibits violence and inhuman or degrading treatment against persons under the responsibility of the police, but there is no explicit prohibition of corporal punishment.

Alternative care

Corporal punishment is lawful in alternative care settings.

Prevalence research

None identified.

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“While the Committee welcomes the fact that corporal punishment has been forbidden in schools, it notes with concern that children are still subjected to corporal punishment in schools, particularly Koranic schools. The Committee also notes with concern that corporal punishment remains lawful in the home, in alternative care centres and as a disciplinary measure in penal institutions.

“The Committee recommends that the State party explicitly prohibit by law corporal punishment in all settings, including in the family, in all forms of schools, alternative childcare and places of detention for juveniles, and implement those laws effectively. It also recommends that the State party intensify its awareness-raising campaigns in order to promote the use of alternative forms of discipline in a manner consistent with the child’s human dignity and in accordance with the Convention, especially article 28, paragraph 2, taking into account the Committee’s general comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment.”
(12 February 2009, CRC/C/TCD/CO/2, Concluding observations on second report, paras. 45 and 46)

“The Committee is concerned about the use of corporal punishment in families, schools and other institutions. It is concerned about existing legislation that allows the use of corporal punishment in families and correctional facilities, and particularly concerned about its continued use in some religious schools in spite of legislation banning corporal punishment in schools. The Committee encourages the State party to review its policies and legislation in order to eliminate corporal punishment as a method of discipline, and to improve enforcement of the legislation banning corporal punishment in schools. It recommends that the State party conduct awareness-raising campaigns to ensure that alternative forms of discipline are administered in a manner consistent with the child’s human dignity and in conformity with the Convention. Finally, the Committee encourages the State party to seek international assistance and advice to overcome traditional social and religious attitudes regarding corporal punishment.”
(24 August 1999, CRC/C/15/Add.107, Concluding observations on initial report, para. 25)