Summary of law reform necessary to achieve full prohibition

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

Article 89 of the Penal Code states that “Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person …” There are similar provisions in the Punjab Destitute and Neglected Children Act (article 35), the Sindh Children Act (article 48) and possibly other provincial laws. These provisions should be repealed and explicit prohibition should be enacted of all corporal punishment, however light, by parents and all persons with authority over children.

Legislation should be enacted which explicitly prohibits corporal punishment in all schools, public and private – issuing directives instructing teachers not to use corporal punishment does not amount to prohibiting corporal punishment. All judicial corporal punishment should be prohibited, including under Shari’a law and traditional legal systems, and all legal provisions authorising such punishment of children should be repealed. Explicit prohibition should also be enacted of corporal punishment as a disciplinary measure in all institutions accommodating children in conflict with the law. Explicit prohibition should be enacted in legislation applicable to all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 89 of the Penal Code (1860) states: “Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person …” This right is also confirmed in article 35 of the Punjab Destitute and Neglected Children Act (2004) and article 48 of the Sindh Children Act (1955).  

The National Child Policy adopted in 2006 recognises the right of the child to protection from corporal punishment but there is no prohibition in law. Provisions against violence and abuse in the Penal Code, the Punjab Destitute and Neglected Children Act, the Sindh Children Act, the Guardians and Wards Act (1890), and the Code of Criminal Procedure (1898) are not interpreted as prohibiting corporal punishment of children.

At a meeting of the South Asia Forum in July 2006, following on from the regional consultation in 2005 of the UNSG’s Study on Violence against Children, the government made a commitment to prohibition in all settings, including the home. Legislation is being drafted which would prohibit corporal punishment of children, but as at October 2009 it does not prohibit corporal punishment in the home.

Schools

Corporal punishment is lawful in schools under article 89 of the Penal Code (see above). A federal ministerial directive and ministerial directives in all Provinces have instructed teachers not to use corporal punishment but it is not prohibited in legislation. As at October 2009, legislation is being drafted which would prohibit corporal punishment in schools.

Penal system

Law reform has not yet effectively prohibited corporal punishment of children in the penal system. The federal Juvenile Justice System Ordinance (2000) prohibits corporal punishment of children under the age of 18 (article 12). All four provinces of Pakistan – Sindh, Punjab, Balochistan and the North West Frontier Province – have framed rules for implementing the Ordinance. The Juvenile Justice System Ordinance has been extended to the Federally Administered Tribal Areas (FATA) and the Provincially Administered Tribal Areas (PATA) but as at July 2008 it had not been implemented. FATA and PATA are subject to the Frontier Crimes Regulation (1901) that allows elders and leaders to administer justice according to Shari’a and tribal customs. The Taleban have set up permanent Islamic courts and a number of mobile courts in FATA, and order cruel punishments in criminal cases.

Corporal punishment as a sentence for crime was prohibited in the Abolition of the Punishment of Whipping Act (1996), but this does not apply in the case of hudood offences. Punishments for hudood offences under the Offence of Zina (Enforcement of Hadood) Ordinance (1979, amended 2006), the Prohibition (Enforcement of Hadd) Order (1979) and the Offence of Qazf (Enforcement of Hadd) Ordinance (1979) include lashing, stoning and amputation. Legislation also provides for the penalty of qisas, a punishment causing similar hurt at the same part of the body of the convicted person as s/he caused to the victim. The Penal Code states that no qisas can be ordered when the offender is a minor (article 337-M), but a minor is defined as a male under the age of 18 years (article 299), allowing for the punishment of qisas to be ordered for females. The Rules and Orders of the Lahore High Court allow for the whipping of young offenders.

The Abolition of Whipping Act did not repeal or amend the Prisons Act (1894) or the Prison Rules, which allow the superintendent of a jail to order up to 30 lashes (up to 15 for children under the age of 16 years) as a disciplinary measure. In the Punjab province, the Borstal Act (1926) permits its use on males in borstal institutions.

As at October 2009, we have yet to confirm that law reform proposals would prohibit all corporal punishment in the penal system.

Alternative care

Corporal punishment is lawful in other institutions and forms of childcare under article 89 of the Penal Code, article 35 of the Punjab Destitute and Neglected Children Act and article 48 of the Sindh Children Act (see above). As at October 2009, legislation is being drafted which would prohibit corporal punishment in all alternative care settings.

Prevalence research

A participatory study by Save the Children, UNICEF and Government of the North West Frontier Province in three districts of NWFP – Peshawar, Hangu and D.I.Khan – revealed that corporal punishment is widely used to discipline children in homes and educational institutions. A total of 155 consultations were undertaken, using participatory research techniques, with 3,582 children aged 6-14 years from government and religious schools, 86 consultations with 1,231 parents, and 86 consultations with 486 teachers. Not one child reported never having received corporal punishment. Cumulatively, the children identified 28 types of punishment used in homes and 43 in schools. The most common punishments at home were hitting with an object (shoe, brick, iron rod, knife, etc), smacking, kicking, punching, hair-pulling and ear-twisting. The most common in schools were smacking, hitting with an object, hair-pulling, ear-twisting, and awkward and humiliating physical positions. About 43% of all punishments identified were reported by children in government primary schools, about 30% in government middle schools, 10% in government high schools, and 16% in private schools. Corporal punishment at home and in schools was more frequent the younger the child. There were no significant gender differences – boys and girls were subjected to similar frequencies of punishment. Corporal punishment in homes was reported as being inflicted most frequently by immediate family members such as parents (20.22%), grandparents (24.04%) and older siblings (18.91%) and uncles and aunts (27.31%), followed by close relatives such as cousins and in-laws. Neighbours, village elders, tutors, housemaids and other relations were reported as less frequently beating children. Corporal punishment in schools was most commonly inflicted by the teacher and students assigned discipline duties in the school (49.6%), including class monitor, commander, and assembly commander. Senior students were also frequently reported to be hitting younger children (14.7%). (April 2005, Disciplining the Child: Practices and Impacts, Save the Children/UNICEF/Schools and Literacy Dept, Government of NWFP)

An interview study of 300 parents in Lahore found 83% of parents reporting that they used corporal punishment, mostly slaps or kicks. About 3% reported using sticks, belts and other implements. (Ahmad, F. & Najam, N. (n.d.), “Physical punishment: parental use, attitude and its intergenerational transmission”)

A survey by the Pakistan Paediatrics Association and UNICEF, the results of which were published in March 2003, showed that more than four out of five children were vulnerable to physical abuse from parents, elders and teachers, with boys more likely than girls to suffer physical abuse. (Cited in Human Rights Commission of Pakistan, 2004, State of Human Rights 2003)

In research involving 4,200 school going children aged 5-16 in 18 districts and 3 agencies (tribal areas) of North West Frontier Province found a high prevalence of corporal punishment in the home, using a structured questionnaire, all respondents said that they were physically punished at home. The types of punishment experienced included slapping on the face (54%), slapping on the back (29%), hitting with a stick (16.6%), kicking (12.3%), pulling hair (11%), hitting with another object (2%), and shaking (1.1%). For boys, punishment was most commonly inflicted by fathers (78%), followed by mothers (42%) and elder brothers (47%). For girls, mothers most commonly inflicted the punishment (74%), following by fathers (60%), elder brothers (44%) and elder sisters (21%). Reasons given included being naughty (47% boys, 41% girls), playing (18% boys, 25% girls), disobeying adults (37%, 16%), making noise (12%, 12%), forgetting an important task (8%, 4%), and weakness in studies (22%. 25%). The punishment was rated as “very severe” in 17% of cases, “severe” in 52% and “mild” in 31%. (NCCR, 2001, Violence against children in the family and in schools: Submission by NGOs Coalition on Child Rights - Pakistan (1) to the CRC Day of General Discussion, 28 September 2001, NGOs Coalition on Child Rights/UNICEF)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee welcomes the State party’s commitment to eradicate corporal punishment in all settings, as demonstrated with the incorporation of the prohibition of corporal punishment in the National Plan of Action for Children and directives issued in all provinces. The Committee is however deeply concerned that corporal punishment is currently lawful under section 89 of the Penal Code of 1860 and extensively used as a disciplinary measure in home, schools, and alternative care settings and that it is still used in the penal system despite its prohibition through the JJSO.

“The Committee recommends that the State party, as a matter of urgency:

a) repeal section 89 of the Penal Code of 1860 and explicitly prohibit all forms of corporal punishment in all settings;

b) set up an effective monitoring system in order to ensure that abuse of power by teachers or other professionals working with and for children does not take place in schools and other institutions ; and

c) introduce public education, awareness-raising and social mobilization campaigns on harmful effects of corporal punishment with a view to changing general attitude towards this practice and promote positive, non-violent, participatory forms of child-rearing and education.

“The Committee ... is deeply concerned at reports of violence, ill-treatment, corporal punishments, sexual abuses, and illegal detention within madrassahs....

“The Committee recommends that the State party: ...

c) ensure the protection of children from maltreatment within madrassahs through the establishment of an adequate monitoring mechanism; ...

e) take into account the Committee’s general comment No. 1 (2001) on the aims of education”
(2 October 2009, CRC/C/PAK/CO/3-4 Advance unedited version, Concluding observations on third/fourth report, paras. 47, 48, 80 and 81)

“The Committee is deeply concerned that the State party’s Penal Code (sect. 89) allows for corporal punishment to be used as a disciplinary measure in schools and at the fact that corporal punishment is widely practised, especially within educational and other institutions and within the family, many times resulting in serious injuries. The Committee is further concerned that, despite the 1996 Abolition of the Punishment of Whipping Act, whipping is still used as a sentence for Hadood crimes.

“The Committee recommends that the State party, as a matter of urgency:

1. repeal section 89 of the Penal Code of 1860 and explicitly prohibit all forms of corporal punishment;
2. abolish the sentence of whipping, under any circumstance or law;
3. undertake well-targeted public awareness campaigns on the negative impact of corporal punishment on children, and provide teachers and parents with training on non-violent forms of discipline as an alternative to corporal punishment.

“The Committee … remains deeply concerned that:
g) the code of conduct for teachers does not prohibit corporal punishment, nor does it deal with the problem of violence against children in school.

“The Committee recommends that the State party:
i) take proactive measures to eliminate violence against children in schools, notably by including in the code of conduct for teachers the prohibition of corporal punishment and by limiting the role of school counsellors to those functions that help the pupil and revoking their disciplinary functions.”
(27 October 2003, CRC/C/15/Add.217, Concluding observations on second report, paras. 42, 43, 60 and 63)

“… the Committee notes the non-compatibility of certain areas of national legislation with the provisions and principles of the Convention, including the punishment of flogging and the death penalty and life imprisonment for children below the age of 18.

“The hope is … expressed that … the State party will take into account the Committee’s concerns, particularly its recommendations with regard to the abolition of flogging and capital punishment for children under the age of 18….”
(25 April 1994, CRC/C/15/Add.18, Concluding observations on initial report, paras. 12 and 23)

Committee on the Elimination of Discrimination Against Women

“The Committee notes with concern that violence against women and girls persists, including domestic violence, rape and crimes committed in the name of honour. The Committee is especially concerned about the Qisas and Diyat law, which allows for the victim of violence or his/her heir to determine whether to exact retribution (Qisas) or payment of compensation (Diyat) or to pardon the accused, thus providing impunity for perpetrators of violence against women, especially perpetrators of crimes committed in the name of honour. The Committee notes with concern the lack of data on all forms of violence against women in the report.

“The Committee urges the State party to accord priority attention to the adoption of a comprehensive approach to address all forms of violence against women and girls, taking into account the Committee’s general recommendation 19 on violence against women. The Committee calls on the State party to ensure that the Qisas and Diyat law has no application in cases of violence against women, especially crimes committed in the name of honour, and to adopt the Bill on Domestic Violence, within a clear time frame, in order to ensure that women and girls who are victims of violence have access to protection and effective redress and that perpetrators of such acts are effectively prosecuted and punished. The Committee also recommends gender-sensitive training on violence against women for public officials, in particular law enforcement personnel, the judiciary and health service providers, to ensure they are sensitized to all forms of violence against women and can adequately respond to it. The Committee also calls on the State party to include, in its next report, data on all forms of violence against women disaggregated by rural and urban areas.”
(11 June 2007, CEDAW/C/PAK/CO/3, Concluding observations on initial/second/third report, paras. 22 and 23)