THE shocking rape-murder of little Zainab earlier this year was preceded by the exposure of a massive child pornography ring in the same district in 2015. We reacted with similar horror then, but the culprits have yet to be punished. Such crimes take place in all countries, people might say. But incident rates vary vastly depending to a large extent on which country has enacted good laws.
Laws in Pakistan are drafted in English, the standards of which have steadily deteriorated. We get by mostly with the use of cut, copy and paste functions. Drafting is an art that requires excellent command of the language and adherence to certain principles of legalese. In legislation, not even a punctuation mark can be changed unless through amendment once it has been passed by parliament. Keeping this in mind, imagine a law such as the Employment of Children Act, 1991, which refers to the Convention on the Rights of the Child as a US — not UN — convention. To date, the convention continues to be wrongly attributed.
In 1952, Punjab passed a child rights law that would come into force when so notified by the provincial government. In 31 years, this notification was never issued. In 1983, it was replaced by the Punjab Children Ordinance — with a similar condition — and again the notification was never issued. It was only in 2004 that a law passed by the Punjab Assembly was enforced, although only gradually.
Despite being on the statute books for 14 years, the law has failed to protect the province’s children.
The Punjab Destitute and Neglected Children Act, 2004 repealed the Punjab Children Ordinance, 1983 (No XXII); the Punjab Youthful Offenders Ordinance, 1983 (No XXIII) and the Punjab Supervision and Control of Children Homes, Act 1976 (No XVI). The PDNCA came into force at once, but stated that it “shall take effect in such areas and from such date as the government” may notify. This act is now the primary child rights law in the province.
But, despite being on the statute books for 14 years, it has failed to make a dent in improving children’s conditions in Punjab — because of problems with the law. The PDNCA has been drafted in such a fashion as to make it impractical and thus unenforceable.
The PDNCA established the Child Protection and Welfare Bureau, with its management vested in a board chaired by the chief minister. The board can set up a fund in order to carry out the CPWB’s purpose; set up child protection institutions; and oversee prosecution of offences under the act. The CPWB is responsible for appointing child protection officers, mainly to rescue neglected and destitute children and be able to produce them in court, for which the officers can seek police assistance.
A “destitute and neglected child” is defined as a person under the age of 18 “who is found begging; or is found without having any home or settled place of abode, and without any ostensible means of subsistence; or has a parent or guardian who is unfit or incapacitated to exercise control over the child; or lives in brothel or with a prostitute”; “is being or is likely to be abused or exploited”; “is beyond parental control”; “is at risk owing to disability or child labour”; has lost one or both parents, or has been abandoned by his parent or guardian; “is victim of an offence ... his parent or guardian is convicted or accused of”; “is imprisoned with the mother or born in jail”.
Millions of children in Punjab can thus be categorised as “destitute and neglected”. So what has the law, the CPWB and the provincial government done for their welfare? The CPWB can establish child protection units anywhere in Punjab, and “delegate its powers and functions to a local government” or NGO. It can recognise any other institution as a child protection unit. All children’s homes established and functioning under the repealed Punjab Supervision and Control of Children Homes Act, 1976 are deemed under the PDNCA to be child protection institutions.
Initially applied only in Lahore, by early 2018, child protection units under the PDNCA have been established in Rawalpindi, Multan, Faisalabad, Gujranwala, Sialkot, Dera Ghazi Khan and Kasur. It need hardly be said that a single unit per district cannot handle every case within its jurisdiction.
The act also requires the government to establish child protection courts that have the power to order for a child to be produced in court; grant custody to a suitable person or institution; issue search warrants for a child; and order parents to provide for maintenance of their child in protective custody. So far, the government has been able to establish only one such court, which sits within the CPWB’s premises in Lahore. Sessions courts in other districts were notified to act as courts under the PDNCA in 2011, but these courts lack the expertise required of such specialised courts.
Ostensibly, such a court, upon receiving information that a child is destitute or neglected, can issue a warrant for the child to be produced. A child protection officer appointed under the PDNCA can take such a child under the age of 15 into custody, and produce him within 24 hours. But, in practice, there are too few officers in Punjab for much benefit to come of this. Once produced, the court may order that the child be admitted into child protective services or require the submission of suitable surety for the child’s safety. Again, few children have actually benefited from this provision.
As for punishments for offences under the PDNCA, a person who keeps a child in unauthorised custody; subjects him to cruel treatment; employs him for begging; gives him intoxicating substances; or exposes him to sexual abuse, prostitution or other immoral conditions is punishable with imprisonment extending to three years or a fine of up to Rs50,000, or both.
These are hardly punishments that can deter people who have harmed or seek to harm children. And, as a result, children all over Pakistan continue to suffer, as we continue to light candles and pass resolutions condemning such crimes.
The writer is an advocate of the Supreme Court.
Published in Dawn, February 12th, 2018