Legal Rights of Children Under Laws of Pakistan
Many laws deal with the rights of children. It is necessary to shed light on the definition of a child, before dilating upon the topic at hand. According to Oxford Advanced Learner’s Dictionary (9th edition), a child is defined as,
“A young human who is not yet an adult.”
Section 3 of the Majority Act 1875 (pre-Partition of British India) states the age of a minor to be 18 years, while the age of a minor under a guardian to be 21 years. Keeping this in view, children’s rights categorically find mention, expression and place in the fundamental law of Pakistan, that is the Constitution of Pakistan under the Chapter on Fundamental Rights.
Article 11 of the Constitution unequivocally enshrines that,
“No child below the age of fourteen years shall be engaged in any factory or mine or any other hazardous employment.”
In this regard, worth mentioning is the federal Employment of Children Act 1991 which follows the definition of the Constitution and attempts to regulate the conditions of work for children under 14 years and forbid their employment in harsh occupations. The minimum age for employment in provinces is still 14 years in Khyber Pakhtunkhwa and Sindh, but has been raised to 15 years in Punjab. The minimum age for hazardous work remains 14 years in Balochistan and Islamabad Capital Territory, but has been increased to 18 years in Khyber Pakhtunkhwa, Punjab and Sindh. Be that as it may, the Children (Pledging of Labour) Act 1933 defines a child as a person under 15 years and states that any agreement to pledge the labour of a child shall be void.
Needless to say, the Constitution of Pakistan 1973 is the supreme law of Pakistan, as authoritatively held umpteen times by superior courts, and it will take precedence over the said law in respect of age.
Other laws dealing with child labour include:
- The Factories Act 1934.
- The West Pakistan Shops and Establishments Ordinance 1969.
- The Abolition Act 1992.
Furthermore, Article 25-A of the Constitution explicitly stipulates that,
“The state shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law.”
It goes without saying that this Article occurs in the Chapter on Fundamental Rights and was incorporated in the Constitution through the 18th Amendment. Regrettable as it is, neither the former Zardari government nor the incumbent Nawaz government has taken any meaningful step to date towards the implementation of the said Article despite being ordered many times by the Supreme Court of Pakistan to implement the same in letter and spirit. Since Pakistan is a member of the United Nations, it is worthwhile to reproduce here Article 26(1) of United Nations Universal Declaration of Human Rights (UDHR):
“Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory.”
Relevant to the rights of children in criminal proceedings is the Juvenile Justice System Ordinance 2000. Its declaratory provision/preamble, inter alia, lays down the purpose of this legislation as protection of children in criminal litigation, their rehabilitation in society and the reorganization of juvenile courts. Section 2(b) illustrates the meaning of child as,
“A person who at the time of commission of an offence has not attained the age of eighteen years.”
Section 12(b) elucidates that,
“No child shall be […] handcuffed, put in fetters or given any corporal punishment at any time while in custody.”
In addition to this, it expresses that,
“No child shall be awarded punishment of death, or ordered to labour during the time spent in any borstal or such other institutions.”
In so far as the Pakistan Penal Code (PPC) is concerned, section 82 of the Penal Code, as amended by the Criminal Law (Second Amendment) Act 2016 establishes the minimum age of criminal responsibility to be 10 years. Section 83, as amended by the Criminal Law (Second Amendment) Act 2016 declares that between 10 and 14 years a child can only commit an offence when he or she has attained sufficient maturity to understand and judge the nature and consequences of his or her conduct.
Additionally, the trade (selling and buying) of minors for the purposes of prostitution is forbidden by sections 372 and 373 of the same Code, which provide for fine and imprisonment of up to ten years (Note: these provisions had been omitted by the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, S. 19, but Schedule II to the Code of Criminal Procedure 1898 still contains the above-mentioned repealed sections of the Penal Code, as consequential amendments were not made when the above-mentioned sections were repealed. The offences mentioned in these sections are triable by a sessions court and an appeal from an order of the sessions court lies to the Federal Shariat Court). Apart from this, under section 364-A of the same Code, life imprisonment or capital punishment is awarded for kidnapping or abducting children under the age of 10 years.
The Child Marriage Restraint Act 1929 declares that a marriage can only take place over 18 years of age for a male and over 16 years for a female. It is worth noting that the Sindh Child Marriages Restraint Act 2013 has declared that a marriage can only take place over 18 years of age for both genders. A similar move by the federal government under The Child Marriage Restraint (Amendment) Bill 2017, however, was rejected by the Senate Standing Committee on Interior.
Drawing the strands of the whole discussion together, one can conclude that there is a plethora of laws, including the Constitution, dealing with children’s rights. The need of the hour is to implement them effectively and efficaciously in letter and in spirit, otherwise, these laws and fundamental rights serve only as ornaments in statute books devoid of any practical value.
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