THE 1973 Constitution guarantees and protects the fundamental rights of citizens, including children. Article 25(1) provides that “all citizens are equal before law and entitled to equal protection of law”. Article 25(2) provides that “there shall be no discrimination on the basis of sex alone”. Article 35 provides that “the state shall protect the marriage, the family, the mother and the child”.
Despite this express protection provided under the Constitution, laws pertaining to crimes against children exist in the most haphazard manner with no coherence with each other; the state continues to fail in protecting the children of this country.
The recent incident concerning Zainab Amin came as a stark reality for Pakistan to review the existing legislation with respect to children, with specific reference to child abuse. The existing law on child abuse in Pakistan is not satisfactory at all, as it leaves the victim at the mercy of the police, an agency that is responsible for looking after a variety of crime.
There is a need for urgent reforms not only in legislation but also with regard to its implementation, and that too through special legislation. The existing sections in the Pakistan Penal Code are not enough to create deterrence.
There is a need to harmonise laws pertaining to children
There is an acute dearth of an all-encompassing federal policy on the subject, but the government appears to have completely failed in dealing with the issue. The Child Protection Bill System Bill, 2014, brought with a view to protect child rights, was passed by the Senate in 2016, but continues to await the assent of the president to become law.
In matters concerning children’s rights, the provinces appear to have been more active and progressive than the federation itself. The Punjab Children Act, 1952, and the Sindh Children Act, 1955, were the first legislations to codify child-related issues in society into a proper statute. However, there still remains a need to legislate at the federal level to harmonise such laws.
Legislation at the provincial level plays a major role in preventing child abuse, if implemented effectively and monitored; but legislation at the federal level is needed in order to make legislation at the provincial level more effective.
There exists the need for a proper framework with regard to the admissibility of DNA evidence. The Sindh government recently announced plans to legislate in order to make DNA evidence admissible at the provincial level, something opposed by the Council of Islamic Ideology.
Due to different Islamic schools of thought, there is no consistency in Islamic dictates. According to the Shia, the age of puberty for girls is nine years and for boys 15, whereas for Sunnis, the age of puberty for girls is 15. There exists a strong need to interpret these Sharia laws and bring them into harmony with the legislation of the country.
The age of criminal responsibility in Pakistan, according, to Section 82 of the Pakistan Penal Code, reads as follows: “[T]he minimum age of criminal responsibility [is] at seven years”. Section 83 states that between seven and 12 years a child can only commit an offence when he has attained “sufficient maturity of understanding to judge the nature and the consequences of his conduct”.
The Juvenile Justice System Ordinance, 2000, further provides protection to all youth offenders, defined as persons under 18 years of age.
The legal age of sexual consent still remains unspecified. The Child Marriage Restraint Act, 1929, declares that marriage can take place over 18 years of age for a male and over 16 years for a female. Below these ages, marriage is punishable with a fine and imprisonment but the law does not invalidate the marriage. Hence, in Pakistan it is common practice that a male parent or guardian contracts the minor child in marriage without her or his consent. This again conflicts with Islamic injunctions as provided by the Shia school of thought as mentioned earlier, where the female attains puberty at the age of nine.
Article 11(3) of the Constitution lowers the age limit by prohibiting the employment of a child below the age of 14 in any hazardous employment. The Employment of Children Act, 1991, follows the definition of the Constitution and attempts to regulate the conditions of work for children under 14 years and to forbid their employment in harsh occupations.
Despite the 18th Amendment, there is a dire need for harmonising the laws on the subject throughout the country with the removal of all ambiguities. This menace requires a joint effort.
The writer is an advocate of the high court, practicing in Lahore.
Published in Dawn, January 29th, 2018