Earlier this month, news broke on social media of the shocking death of Hunain Bilal. The teenager was, according to a police report of the incident, punched repeatedly, grabbed by his hair and slammed against the wall of his own classroom by his own teacher.
The brutal beating was administered, witnesses said, because Bilal "had failed to memorise his lesson".
His death was followed by an arson attack on Lahore's American Lycetuff school, where the incident had taken place. It was Bilal's fellow students themselves who allegedly set the fire — grieved and angered at his violent death.
The disturbing events of that day serve as a jarring reminder of our state's continued failure to protect our children. This becomes starker considering Pakistan is a signatory to the United Nations Convention on the Rights of the Child, which clearly prohibits corporal punishment within as well as outside schools.
Need for a dedicated law
The state's failure to protect our children stems from its inability to address corporal punishment effectively, be it through official policy or through a structured national narrative aimed at stigmatising and eventually outlawing violence against children.
Look at Punjab, where the incident happened, for instance.
“There is no specific, formal law in Punjab that criminalises all kinds of physical and mental torture against children," notes Iftikhar Mubarak, advocacy member of the Initiator Human Development Foundation (IHDF), a non-governmental group working for children's rights.
In the absence of a formal law, the provincial government has been trying to address the crisis armed only with a standing administrative order issued under the slogan of Maar Nahi Pyar (affection, not beatings).
The order was issued by the Punjab Education Department in 2005, under then-military ruler Pervez Musharraf’s regime.
According to Mubarak, the order binds government and private schools to taking disciplinary action against teachers found involved in inflicting physical or mental torture upon students. But that’s where the scope of the order ends: there is nothing else that directly identifies and criminalises corporal punishment in the province.
And instead of moving ahead and developing legislation to address the issue in a more specific manner, "the (Punjab) government continues to stick with the standing administrative order as a stopgap arrangement".
Punjab's Provincial Minister of Human Rights Ejaz Alam Augustine told Dawn.com that the fact that there is no formal law in Punjab against corporal punishment is, in fact, "the fault of previous governments".
He assured, however, that "the provincial government as well the opposition have now reached a consensus that they will legislate on the issue".
"A bill will be moved in the Punjab Assembly to end corporal punishment in educational institutes in the province," Augustine promised.
Till that bill (if and when introduced) evolves into an act of law, educational institutions in the country’s biggest province have to continue dealing with cases of corporal punishment in an ad hoc manner.
The rest of the country isn't faring all that better either.
Pakistan was among the first countries in the world to ratify the United Nations Convention on the Rights of the Child (UNCRC) on November 12, 1990. This essentially meant Islamabad had made a formal commitment to take all measures within its power to protect the rights of children as defined in the convention.
The reality has been far from ideal.
As stated earlier, there is, to date, no clear-cut, uniform state policy or law that outlaws the practice of corporal punishment across Pakistan both within schools and without.
Human Rights Commission of Pakistan co-chairperson Uzma Noorani underscores the need for the government to take remedial measures, including effective inspections of schools and to establish the bodies to take redressal measures. She notes that in case parents complain to the educational institutes’ management, the principals try to defend their staffers.
Pakistan did come close to passing such a law in a rare move in 2013, when the National Assembly ‘unanimously’ passed a bill to criminalise corporal punishment across the country.
Moved by MNA Attiya Inayatullah, the proposed law prescribed up to one-year imprisonment and up to Rs50,000 as a fine on the person found guilty of inflicting corporal punishment on children.
The bill was aimed at protecting the dignity of children as a human right. However, it could not become law due to a technicality.
Because the Lower House passed the bill on its second-last day of work, it could never make it to the Upper House. According to the National Assembly’s Rules of Business, a bill in the assembly must be passed at least a week before the session ends for it to make it to Senate.
"Inayatullah was sincere, but the timing wasn’t right," recalls Rana Asif Habib, president of IHDF.
Later on, a bill to outlaw corporal punishment was also submitted by lawmakers Marvi Memon and Leila Khan. However, nothing came of it.
More recently, in May 2018, the Parliament passed the Islamabad Capital Territory Child Protection Act to provide for protection and care of children from all forms of physical or mental violence, injury, neglect, maltreatment, exploitation and abuse.
However, it stopped short of directly or specifically prescribing a punishment for the perpetrator. Also, it is applicable only to children in care of the federal capital.
The role of provinces
Since the 18th Amendment, Islamabad has devolved certain subjects to the provinces and constitutionally empowered them to legislate on a wide range of matters.
Child protection and corporal punishment are among the areas that provinces can directly legislate on. They do not have to look to the federal government to extend protection to the children in their dominion.
However, Habib says, the provinces have either not addressed the issue or have not implemented formulated laws in letter and spirit.
“No specific law exists in Punjab, Khyber Pakhtunkhwa or Balochistan that outlaws the physical and/or mental torture of students at the hands of their teachers,” says Habib.
Sindh is the only province that has a dedicated law against corporal punishment (enacted in March 2017); but though the law exists, he says it is not being implemented in letter and spirit.
Why criminals go scot free
In the absence of dedicated laws and the respective governments’ failure to update existing laws, the issue is far from being effectively addressed.
Usually, an offence involving physical torture inflicted on a child by parents or guardians is dealt with under Section 89 (Act done in good faith for benefit of child or insane person, by or by consent of guardian) of the Pakistan Penal Code (PPC).
Mubarak explains that this section basically empowers parents, other guardians and teachers to use corporal punishment as a means to 'discipline and correct' the behaviour of a child under the age of 12. However, under this law, such punishment is required to be moderate and reasonable.
In case a 'punishment' inflicts serious injuries as defined in the PPC, the adult causing it can be booked under Sections 334 and 336 of the penal code and penalised in case of physical hurt. The penalty can also lead to imprisonment of the adult inflicting harm. However, cases of corporal punishment involving grievous harm are rarely dealt with under these two sections.
Mubarak says the only specific section that has recently been added to the PPC to address the issue to some extent is 328-A (Cruelty to a child), brought in through the Criminal Law (Second Amendment) Act, 2016.
This Section reads: “Whoever willfully assaults, ill treats, neglects, abandons or does an act of omission or commission, that results in or have potential to harm or injure the child by causing physical or psychological injury to him shall be punished with imprisonment of either description for a term which shall not be less than one year and may extend up to three years, or with fine which shall not be less than twenty-five thousand rupees and may extend up to fifty thousand, or with both.”
This section extends to all of Pakistan. Most recently, it was applied in the Tayyaba torture case, which had involved a child maid being physically and mentally abused by her employers.
The Islamabad High Court (IHC) had sentenced additional district and sessions judge Raja Khurram Ali Khan and his wife Maheen Zafar — the employers — to one-year imprisonment and Rs50,000 fine each for the crime of beating and burning the hand of the ten-year-old.
How legal loopholes have benefited accused
In most cases of corporal punishment in which the victim dies, complainants are usually persuaded to lodge an FIR under Section 322 of the PPC, which deals with qatl bis-sabab — manslaughter — as opposed to under the much more severe Section 302, which deals with qatl-i-amd — pre-meditated murder.
“The defence counsels always exploit legal loopholes by arguing that the act of the teacher was meant to the benefit the child and not intended to kill him/her. Subsequently, they manage an agreement between the accused and victim parties sooner or later, as punishment under Section 322 is much less severe and easily compoundable (compromisable),” says Habib. “In most of the cases, the parents end up pardoning the accused."
As the Hunain Bilal case goes to court, policymakers and activists should sit up and take note. This incident should mark the last time a child is harmed in a space where they should feel protected at all times. The way this case will be litigated, and precedents in similar cases before it, will provide valuable lessons to lawmakers looking to rectify this continuing inadequacy in our legal system.
It bears repeating that sound, comprehensive laws must be enacted without further delay to protect our children. Our lawmakers bear a heavy responsibility in this regard.