THE Khyber Pakhtunkhwa Assembly early this week enacted the Child Protection and Welfare Act, 2010, through which various child-related offences have been declared penal offence for the first time. The law was first introduced as an ordinance which was promulgated by Governor Owais Ahmad Ghani on June 9, which was subsequently extended after expiry of its three-month constitutional life by the provincial assembly on Sept 6.The enactment of this law was a longstanding demand of the civil society groups especially the NGOs working on child rights. In Punjab, an almost identical law, The Punjab Destitute and Neglected Children Act, was enacted by the assembly in 2004. The law enacted by the Khyber Pakhtunkhwa government is almost on the same pattern but with various improvements in Punjab's law. Different government departments including the provincial social welfare and law departments have worked for over two years to give final shape to the law.
For the first time, the issue of privacy of “child at risk” has been addressed in a provincial legislation. Section 24(1) of the law states: “No report in any newspaper, magazine or news sheet of any assessment regarding a child at risk under this act shall disclose the name, address or school or any other particulars, which lead to the identification of the child at risk nor shall any picture of the child at risk be published: provided that for reasons to be recorded in writing, the authority holding the assessment may permit such disclosure, if in its opinion such disclosure is in the interest of the child at risk.”
Under sub-section (2) of section 24, a person contravening this provision should be punished with fine which may extend to ten thousand rupees.
Although, there is mushroom growth of electronic media in Pakistan, but the provincial government has not included the visual-media in this provision, which is considered a major flaw.
This provision of the provincial law is almost replica of the Juvenile Justice (Care and Protection of Children) Act, 2000, of India. However, in the Indian law the visual media is included in almost an identical provision. Similarly, in India the said provision has been implemented and there are various instances when courts had taken notice of the violation.
Another shortcoming in the law is about child protection court. Instead of establishing a separate court for child protection, section 15 of the provincial law provides that the government may in consultation with Peshawar high Court notify different courts of sessions as child protection court under this act. Similarly, the high court may confer powers of the court for a local area upon a sessions judge or an additional sessions judge.
Civil society groups believe that the regular courts have already been overburdened and assigning them more responsibilities would not be in the interest of justice.
Apart from other important things in the ordinance, the provincial government has also expressed the resolve to implement laws related to inhuman customary practices and child marriages. Section 30 of the Ordinance states: “Protection against child and discriminatory customary practices shall be provided in accordance with federal laws in vogue on the subject.”
Presently, the law dealing with child marriages is the Child Marriage Restraint Act, 1929, which has not been implemented in any of the provinces. The said law defines a “child” as a person who, if a male, is under 18 years of age, and if a female, is under 14 years of age. Section 8 of the said Act provides that no court other than that of a magistrate of the first class shall take cognizance of, or try, any offence under this act.
The recently passed law has also declared various anti-child acts as penal offences for the first time. These offences include; child pornography, children sexual abuse, sale in child organ, corporal punishment, child begging and child trafficking.
Following the promulgation of this ordinance, if a person is found guilty of dealing in organs of a child he or she is liable to be sentenced to death or imprisonment for life and shall also be liable to fine up to one million rupees. Similarly, whoever involves himself in child trafficking within Pakistan shall be punishable with imprisonment for life or imprisonment not less then 14 years.
Corporal punishment is also now an offence punishable up to six months of imprisonment or with fine up to Rs50,000 or both. Moreover, the offence of child sexual abuse carries punishment up to 14 years imprisonment and fine up to Rs1 million. Similarly, the offence of child pornography carries punishment up to seven years imprisonment and minimum sentence of three years with fine of Rs500,000.
The law also provides for establishment of a Child Protection and Welfare Commission to be headed by the provincial minister for social welfare. The secretaries of different departments including social welfare, finance, local bodies, home, law and primary education would be its members. Apart from government officials, six members would be appointed from the civil society out of which three should be women.
Under the law child protection unit would be set up on district level and the district social welfare officer would be its in-charge.
Legal experts believe that from time to time different laws were introduced for children in different fields, but the same have not been implemented. They added that the present ordinance should not meet the same fate and the government should give priority to its implementation.
Moreover, although over three months have passed since the law was first introduced as an ordinance, but still the provincial government has not established the bodies and institutions given in the law including the child protection commission, child protection unit, child protection institutions and offices of child protection officers.