Summary of law reform necessary to achieve full prohibition

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

We have been unable to identify whether or not the law explicitly confirms a right or duty of parents to administer “reasonable punishment/correction” to a child, but provisions against violence and abuse are not interpreted as prohibiting all corporal punishment. The near universal acceptance of corporal punishment in childrearing necessitates clarity in law that all corporal punishment is unlawful and the removal of all legal defences for its use. Explicit prohibition should be enacted of all corporal punishment by parents and others with authority over children.

The law should explicitly prohibit corporal punishment as a disciplinary measure in all institutions accommodating children in conflict with the law. Explicit prohibition should be enacted of all corporal punishment in 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 in the Child Abuse and Neglect Act (1991), the Domestic Relations Act (1966, amended 2002) and the Criminal Code (1966, amended 2005) are not interpreted as prohibiting corporal punishment in childrearing.

Schools

Corporal punishment is prohibited in schools by the Rules and Regulations of the Ministry of Education (1992), which define corporal punishment as “hitting, kicking, slapping or any other means of brutal punishment”.

Penal system

Corporal punishment is unlawful as a sentence for crime. It is not provided for in the Juvenile Procedure Code or the Criminal Code. The Constitution (1979) prohibits “inhuman and degrading treatment” and “cruel and unusual punishment” (article 6).

Corporal punishment is reportedly prohibited as a disciplinary measure in penal institutions under the amended Criminal Code (see the 2007 Concluding observations of the Committee on the Rights of the Child, below), but we have been unable to verify this. The Criminal Procedure Code and the Juvenile Procedure Code make no provision for corporal punishment.

Alternative care

Corporal punishment is lawful in other institutions and forms of childcare.

Prevalence research

None identified.

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee notes with appreciation the enactment of the following legislation:

d) amended Criminal Code, which prohibits the use of corporal punishment against children as a disciplinary measure in penal institutions.

“While noting that corporal punishment is prohibited in schools by the Rules and Regulations of the Ministry of Education (1992) and that it is unlawful as a disciplinary measure under the revised Penal Code, the Committee is concerned that it remains lawful in the family and that it is not formally prohibited in alternative care settings.

“The Committee urges the State party to:

1. explicitly prohibit all forms of corporal punishment in the family and in institutional settings and alternative care systems as a matter of priority;
2. sensitize and educate parents, guardians and professionals working with and for children by carrying out public educational campaigns about the harmful impact of corporal punishment, and promote positive, non-violent forms of discipline as an alternative to corporal punishment;
3. provide children with child-sensitive mechanisms to lodge complaints in case they are victims of violence, including corporal punishment.

“In this respect, the Committee recommends that the State party take into account General Comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment.”
(19 November 2007, CRC/C/MHL/CO/2, Concluding observations on second report, paras. 3, 41, 42 and 43)

"The Committee is concerned that the use of corporal punishment within the family, schools, other institutions, and generally within society is not expressly prohibited by law.

"In light of articles 19, 28 (2) and 37 of the Convention, the Committee recommends that the State party adopt appropriate legislative measures to prohibit the use of any form of corporal punishment within the family, schools and other institutions. It also encourages the State party to develop measures to raise awareness about the negative effects of corporal punishment and ensure that alternative forms of discipline are administered in families, schools and other institutions in a manner consistent with the child's dignity and in conformity with the Convention."
(16 October 2000, CRC/C/15/Add.139, Concluding observations on initial report, paras. 36 and 37)