Children, Legal Loopholes and Constitutional Rights

by Advocate Ammara Farooq Malik, Partner AFMalik Law.

Citation: Malik, Ammara Farooq (2020), Children, Legal Loopholes and Constitutional Rights, Lahore: AFMalik Law Legal Review, https://afmalik-law.com/legal-loopholes-in-child-safety/

Children (minors) are defined under section 299(j) of Pakistan Penal Code 1860 (“PPC”) as those who are below the age of 18. They have an inalienable right to life and education under articles 9 and 25-A respectively, under the Constitution of the Islamic Republic of Pakistan 1973. The recent incidents of sexual harassment at some private schools in Lahore has highlighted the gross violation of these fundamental rights of children under the Constitution and the lack of requisite laws to hold schools accountable for the protection of children on their premises.

Children are vulnerable and need special care and protection, much more in comparison with adults and this is ensured under Article 25 and Article 25 A of the Constitution of the Islamic Republic of Pakistan 1973.

Under the United Nations Convention for the Rights of the Child 1989, ratified by Pakistan in 1990, Article 3 (1) provides that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” It further states that 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

The “competent authority”, in this case is the Punjab School Education Department.  And despite Pakistan having been a signatory to the UNCRC 1989 since more than thirty years now, it has failed to provide the requisite policies for the ‘safety’ of children on school premises. Safety includes the guarantee of right of life and the enjoyment of life under Article 9 of the Constitution.

The issue of safety of children at school and sexual harassment arose when during 27.6.2020 to 2.7.2020, several allegations of sexual harassment and institutional bullying were reported on social media and in the media by young students and alumni of various private schools in Lahore. Many young students alleged systemic violence within the supposed safe premises of their own school for years. The incident was then taken notice of by the Ministry of Education.

What this incident has highlighted is the depravity and degeneration of the society where teachers may be found to prey on their young students in ‘school’. A “school” has been defined under the Punjab Private Educational Institutions (Promotion and Regulation) (Amendment) Act 2017 under section 10) “school” as “A school, by whatever name called, preparing students for pre-primary, elementary, high, higher secondary, O-Level, A-Level, General Certificate of Secondary Education , Human Scale Education or any other similar system of education; or Any other institution imparting vocational, commercial, technical or other specialized education leading to a certificate recognized by the Government or a Board of Education; or An institution for Special Persons.”

The existing law for child protection vide Pakistan Penal Code (PPC) is under section 292 A: Exposure to seduction, section 292 B: Child pornography, Section 292 C: Punishment for child pornography and section 328 A: Cruelty to a child;  which do not allow children to report sexual harassment on school premises.

With the advancements in education modes online, it is imperative to ensure that special laws be created to ensure the safety of children in schools and in online classes, wherein clear policies and guideline are laid down highlighting measures for the protection of children, specifically safeguard from sexual harassment and ‘bullying’ that can have an adverse effect on the mental health of the children.

The international organization Kids Rights Foundation has placed Pakistan at the 151st position in the global Child Rights Index of 181 countries. Some of the neighboring countries of South Asia, with similar socio-economic background, are now placed at a comparatively enhanced standing in child rights index. With Bangladesh at 108th, India at 117th, Myanmar at 133rd, and Nepal at 136th, it is alarming for Pakistan to be placed at a much lower position. This is proof of the poor performance of government and transpires that policy makers and state machinery in Pakistan still have much to do for the welfare and rights of children.

The incidents highlighted arose because there were no uniform sexual harassment policies for children in schools, where children could safely confide their problems to adults on school premises. The closest existing law on the matter covers remedies under the Protection of Women at the Workplace Act 2010 which under section 3, introduces the system of an inquiry committee which shall consist of three members, of which one must be a female. This inquiry committee shall be set up by any organization or company which receives a complaint from a worker regarding harassment.

According to section 8 of the statute, women also have the option to complain directly to the Ombudsperson. However this law covers redressal for female adults and at the ‘workplace’ whereas what is required is a defined standard of protection  for children (minors) within schools. The protection of women and children cannot be compared. One deals with adults capable of giving consent whereas the latter deals with minors who cannot give consent.

Under the Protection Against Harassment of Women at Workplace Act (2010), sexual harassment is defined as “Any unwelcome sexual advance, request for sexual favors or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes, causing interference with work performance or creating intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply with such a request or is made a condition for employment.”

Unfortunately because of new ways for minors to be exploited especially post Covid 19 outbreak and education moving online, there are loopholes in existing legislature and no clear provincial policies or frameworks exist to cover such areas of child protection such as safeguard from sexual harassment on school premises, on online schools or safeguard from mental torture.

Legal frameworks and/or legislation is essential to cover issues of this serious a nature that may arise in the future as well in other private as well as public schools. A closer look can be had at the Sexual Harassment Policy of the Higher Education Commission, however that too deals with adults and not children.

Schools though private entities are regulated by the Punjab School Education Department and can be checked to comply with basic standards of safety, psychological well being and child protection.

There is no clear policy or law that can check schools for being violative of ‘welfare of the child’ principles and having sexual harassment cases on its premises.

It should be the responsibility of schools that are taking high fee in the name of quality private education, to provide safe premises to the students which are free of any sexual harassment and mental abuse.

“Life” of a person does not mean only vegetative life, life requires fulfillment of the highest attainable standard of health, which includes mental health, and is one of the fundamental rights. Article 25 provides that all citizens are equal before the law and are entitled to equal protection of the law. Article 37 of the Constitution of the Islamic Republic of Pakistan 1973 provides promotion of social justice and eradication of social evils.

Thus the Punjab School Education Department must be pushed to ensure the rights of children under the Constitution of the Islamic Republic of Pakistan 1973 and under ratified UNCRC 1989, by checking schools for the protection of children against sexual harassment incidents on school premises.

In view of the above, AFMalik Law and SEPLAA Foundation sent recommendations to this effect to the Punjab School Education Department.

Following which, the SEPLAA Foundation collected several parents, teachers and school owners to form the ‘Concerned Citizens for Child Protection’ (which later became the ‘SEPLAA Child Rights Think Tank’), since many concerned citizens were apprehensive about the safety and healthy mental development of children at private schools wherein schools are required to be harbours of safety for children.

Even before the requisite law can be enacted, high quality private schools can set the bar high for others to follow, by including sexual harassment and online safety policies at their own premises.

Further clips of legal discussions on the matter, can be viewed on Dr. Maria Zulfiqar’s show here.

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