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), the Khyber Pakhtunkhwa Child Protection and Welfare Ordinance (articles 33 and 44) and possibly other provincial laws. These provisions should be amended/repealed to ensure that no law can be construed as providing a defence for the use of corporal punishment on children. 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Shari’a law and traditional legal systems, and all legal provisions authorising such punishment of children should be repealed.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 and in 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 …” There are similar provisions in article 35 of the Punjab Destitute and Neglected Children Act (2004) and article 48 of the Sindh Children Act (1955). The Khyber Pakhtunkhwa Child Protection and Welfare Ordinance (2010) prohibits corporal punishment “in all its kinds and manifestations” but it states that this is “as provided under section 89 of the Pakistan Penal Code 1860” (article 33) and allows for “reasonable punishment” by parents (article 44); the definition of corporal punishment (article 2) covers only that which reaches a certain severity.

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 UN Secretary General’s Study on Violence against Children, the Government made a commitment to prohibition in all settings, including the home. In July 2010, a Child Protection Bill (2009) was referred by the National Commission for Child Welfare and Development (NCCWD) to the interior ministry. The Bill prohibits corporal punishment of children (articles 58 and 59) but its application to “light” corporal punishment is unclear. In January 2010, a Prohibition of Corporal Punishment Bill (2010) was laid before parliament which would prohibit corporal punishment in education and care settings but not by parents in the family home. As at March 2011, a Domestic Violence Bill was under discussion. In May 2011, a Child Welfare and Protection Bill was under consideration in Balochistan which would prohibit corporal punishment in children’s homes but did not address other settings; in November 2011, a Balochistan Corporal Punishment Bill had been drafted which would prohibit it in education institutions and possibly in care settings.

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. The Prohibition of Corporal Punishment Bill (2010) would prohibit corporal punishment in all education settings.

Penal system

Corporal punishment is lawful as a sentence for crime. Article 12 of the Juvenile Justice System Ordinance (2000) states that no child may be given corporal punishment while in custody, but it is not clear that this prohibits corporal punishment of children not given a custodial sentence. The Ordinance states that it is “in addition to and not in derogation of any other law for the time being in practice” (article 14), and it is not in force in all areas of the country.

The Abolition of the Punishment of Whipping Act (1996) prohibits whipping as a sentence under any law but it does not apply to the Federally Administered Tribal Areas (FATA), where children may be sentenced to whipping under articles 6 and 12 of the Frontier Crimes Regulation (1901). The Act also states that it does not apply to hadd offences (article 3). Some laws against hadd offences were amended in 2006 but they continue to punish these offences with corporal punishment and are applicable to children from the onset of puberty. Whipping is provided for in article 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance (1979), article 5 of the Offence of Zina (Enforcement of Hudood) Ordinance (1979), articles 3, 4, 8, 11 and 25 of the Prohibition (Enforcement of Hadd) Ordinance (1979) and articles 17 and 21 of the Offences Against Property (Enforcement of Hudood) Ordinance (1979). The Execution of the Punishment of Whipping Ordinance (1979) requires the involvement of medical personnel, ensuring the punishment does not result in the convicted person’s death, being present at the punishment, and intervening if necessary. Article 9 of the Offences Against Property (Enforcement of Hudood) Ordinance provides for the punishment of amputation – of the right hand for the first offence, the left foot for the second; the amputation must be carried out by an authorised medical officer, who must be of the opinion that it would not cause the death of the convicted person (article 9).

The Penal Code and the Code of Criminal Procedure provide 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.

Corporal punishment is lawful as a disciplinary measure in penal institutions. The Juvenile Justice System Ordinance (2000) prohibits corporal punishment of children in custody (article 12), but as noted above it does not override all other laws and is not in force throughout Pakistan. Article 46(12) of the Prisons Act (1894) provides for whipping as a punishment for prison offences by male prisoners. The prisoner must be certified fit to receive the punishment by a medical officer (article 50) and the whipping should be inflicted “with a light rattan not less than half an inch in diameter on the buttocks, and in case of prisoners under the age of sixteen ... in the way of school discipline, with a lighter rattan” (article 53(2)). In the Punjab province, the Borstal Act (1926) permits corporal punishment on males in borstal institutions (articles 33 and 36).

Alternative care

Corporal punishment is lawful in alternative care settings 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). The Prohibition of Corporal Punishment Bill (2010), and possibly the Child Protection Bill (2009), would prohibit corporal punishment in all alternative care settings.

Prevalence research

In a survey carried out by the Society for the Protection of the Rights of the Child (SPARC) in 2011, 76% of parents were in favour of corporal punishment and believed it was “necessary to correct children’s behaviour”. (Reported in The Peninsula, 7 October 2011)

A study by Save the Children, UNICEF and Government of the North West Frontier Province (now Khyber Pakhtunkhwa) in three districts of NWFP found 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)

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)

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 by 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 homes, schools, and alternative care settings and that it is still used in the penal system despite its prohibition through the Juvenile Justice System Ordinance (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 attitudes 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 punishment, sexual abuse and illegal detention within madrasas and of madrasas being used for military training, as well as instances of recruitment of children to participate in the armed conflict and terrorist activities.

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

c) ensure the protection of children from maltreatment within madrasas 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.”
(15 October 2009, CRC/C/PAK/CO/3-4, 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)

Universal Periodic Review

Pakistan was examined in the first cycle of the Universal Periodic Review in 2008. No recommendations were made concerning corporal punishment of children. Examination in the second cycle is scheduled for 2012.