ABSENCE OF LAW
CHILDREN CONTINUE TO FALL PREY TO SEXUAL ABUSE IN PAKISTAN
When the alleged rapist of seven-year-old Auz Noor was presented before a local magistrate, the 19-year-old termed the sexual assault an act of revenge.
In the quiet town of Kaka Sahib in Nowshera District, Noor left her home for Madrassah on a Saturday afternoon. When she did not return home hours later, the worried parents called in a search. As the locals wandered through the filed, her body was recovered from a water tank in a field meant for watering crops.
Medico-legal reports confirmed torture and sexual assault.
Reportedly, the suspects left the minor in the field when they heard about a search party looking for her. They were apprehended by the family, presented before a Tribal Jirga and subsequently handed over to the local police.
A police official in the investigation team told The Express Tribune, on conditions of anonymity, that the main suspect confessed to the rape and murder.
The confession, however, was not an ordinary occurrence.
Admitting to the sexual assault, the suspect revealed he orchestrated the rape to avenge his own honour. A few months ago, he told police, he was sexually assaulted by Noor’s maternal uncle. Noor, as it happens, was just collateral.
BEGINNING OF A LONG JOURNEY
Noor’s is not an isolated incident. The country has witnessed alarming number of sexual crimes against children in the past decade.
In 2015, a massive child pornography ring was unearthed in Punjab’s Kasur district. More than 400 videos of young boys engaging in sexual acts were used to blackmail their families. Child protection watchdog Sahil reported more than 3,800 cases of sexual abuse and violence against children in 2018.
At least 12 cases were reported within a miles’ radius in Kasur. One of the victims was a seven-year-old Zainab Amin – whose body was recovered from a garbage site in Kasur. The incident incited days of angry protests in her hometown and across the country. The conviction and subsequent hanging of the rapist brought collective relief to a nation not familiar with justice being dispensed. A year later, police were on the lookout for a serial killer behind the rape and murder of three boys in Chunian, Kasur.
The Zainab rape and murder case prompted debate on child protection laws, response and recovery of missing children with Prime Minister Imran Khan vowing to hold law enforcement agencies accountable.
In 2019, the Pakistan Tehreek-e-Insaf (PTI) government tabled the Zainab Alert, Response and Recovery Bill. The bill proposed setting up of an authority, Zainab Alert, Response and Recovery Agency (ZARRA) tasked to maintain a database of missing and abducted children.
A helpline, 1099, will set up to report and forward all cases to ZARRA. When a child is reported missing, the agency will activate alerts across the federal capital. All LEAs and public at large will be provided information such as the child’s physical attributes, habits, clothes.
The Pakistan Telecommunication Authority (PTA) will generate a message to all service providers regarding the child and the information will also be sent to all electronic and print media.
The agency will also introduce a mobile application allowing public access to the data regarding missing children.
The bill also proposes a Child Protection Advisory Board to ensure ZARRA performs its functions. The National Assembly Standing Committee on Human Rights added death penalty as the maximum sentence while 10 years imprisonment was the minimum.
After deliberations in the lower house of the parliament and suggestions from the Council of Islamic Ideology, the bill made it to the Senate Functional Committee on Human Rights late-January 2020.
The panel decided to incorporate jurisdiction of anti-terrorism courts to implement the across the country and not just the Islamabad Capital Territory as proposed by the bill.
It was reported that in committee discussions, Mustafa Khokhar of the Pakistan Peoples Party (PPP) stressed that the cases pertaining to the abduction and exploitation of children should be heard in ATCs.
Invoking Article 143 of the Constitution, Khokhar said the legislature should be implemented across the country. He added that the fourth schedule’s section 55 stated that the Parliament can enhance the jurisdiction of the courts apart from Supreme Court.
When Human Rights Ministry Secretary Rabiya Javeri Agha pointed out that the bill would have to be rewritten to be implemented across Pakistan, Khokhar asserted that the members would amend the bill and there was no need to send it back to the ministry to be redrafted.
Speaking to The Express Tribune, Senator Ayesha Raza Farooq emphasised respecting 18th Amendment. “The Centre should not interfere in provincial legislature. Instead the provincial governments should adopt the bill in the spirit of protecting children’s rights.”
Farooq said the ruling party was in a position to have the bill passed from provincial assemblies. “The PTI has majority in Punjab and Khyber Pakhtunkhwa and a coalition in Balochistan. They should work to get the bill passed by the provincial assemblies.”
Farooq believed the provinces should take ownership of the issue and adopt the Act in order to safeguard the wellbeing of the next generation.
Executive Director of Sahil Manizeh Bano said the bill, when simplified, ensured timely assortment of the missing child’s information. “It’s a technical mechanism – a procedure to follow in case of abduction and missing children. It is an alert bill.”
The legal framework pertaining to children’s welfare is spread out in different statutes: the Constitution, Pakistan Penal Code 1860, and other special laws passed by the federal and provincial governments.
Prior to the 18th Amendment, laws passed by the federation enjoyed national jurisdiction – all four provinces and the ICT. All federal laws on devolved issues, however, are de-facto applicable unless repealed by the provincial governments.
When provincial autonomy was strengthened in 2010, child welfare in terms of legislative, financial and administrative competence was devolved to provinces. The Centre’s legislative powers were limited to defence, currency, foreign affairs, etc.
Consequently, the provincial assemblies were empowered to legislate on issues related to social welfare, youth affairs, health and education.
Although Pakistan ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1989, it has failed to set up the obligatory national commission on child’s rights.
The fate of the National Commission on Rights of Children (NCRC) has been in limbo since the bill was first introduced in 2001.
The Ministry of Social Welfare had initiated a number of legislatures including National Commission on the Rights of Children Bill 2009, Child Protection Criminal Law Amendment Bill 2009, Charter of Child Rights Bill 2009, Prohibition of Corporal Punishment Bill 2010 and the Child Marriages Restraint (Amendment) Bill 2009.
But the promulgation of the 18th Amendment deferred the bills.
The NCRC was eventually taken up and passed by the National Assembly in 2015 and the Senate in 2017. Despite the passage of more than two years, the commission is yet to see light of the day.
With extensive coverage on the matter, journalist Ikram Junaidi explained that the delay was more precautionary than indifference. Speaking to The Express Tribune, Junaid said the NCRC bill had gone through various parliamentary panels over the years but one thing one common between all: all members wanted to be thorough.
“They wanted to ensure the legislature was perfect – it could not be abused by anyone.”
In theory, the commission has the power to hold inquiry into “violation of child rights and recommend to the relevant agency or department initiation of proceedings in such cases”.
It is also responsible for examining “all factors that inhibit enjoyment of rights of child, for example, violence, abuse and exploitation, trafficking, torture, pornography and prostitution and recommend appropriate remedial measures”.
Bano, however, pointed out that the country already has children’s complaint offices. “They can be incorporated into the commission.”
LOOPHOLES TO THE RESCUE
The amended Article 142(b) empowers the Centre to legislate on criminal law, procedure and evidence while Article 25(3) empowers the State to make special provisions for the protection of women and children. The Article 143 gives the Parliament authority over provincial assemblies. On the other hand, Article 144 allows Centre to legislate with the consent of provincial assemblies.
Speaking to The Express Tribune, human rights lawyer and member of ICT Child Protection Advisory Board Sharafat Chaudhry explained that Article 142 gives the federal government exclusive power to make laws specified in the federal legislative list. “Anything related to a minor i.e. a child is a devolved subject hence not included in the list.”
Human rights lawyer Jibran Nasir pointed out that the bill will have to be redrafted and tabled once again since the current ZARR Act 2020 applies specifically to ICT “by its own definition given within the act.”
Nasir said while the lower house was empowered to make penal laws, the Zainab bill included an authority that will work with the police.
Elaborating Article 25(3), Chaudhry said the Centre has the power to create special laws that specifically address issues pertaining to women and children “in particularly for their protection – which is generally interpreted as criminal law”.
Chaudhry said the ZARR Act 2020 can be applicable nation-wide only if the provinces empower the federation through a resolution under Article 144 of the Constitution. “Otherwise, a federal law will not be applicable in provincial territories.”
“A classic example of this is the Hindu Marriage Act 2017,” he continued. “The federal law is applicable in Punjab, Balochistan and Khyber Pakhtunkhwa as their respective assemblies empowered the Parliament through Article 144 to legislate. Sindh, however, did not.”
The lawyer explained that in matters of dual jurisdiction, the federal law prevails over provincial law.
Bano emphasised that the agency and advisory board were “unnecessarily structures” that would burden the national exchequer. She recommended the government should instead empower an existing authority such as the human rights ministry or the police. “We overstrain governance with new structures all the time.”
Meanwhile, the Pakistan Muslim League-Nawaz (PML-N) senator reflected that renaming the bill would mirror its relevance across all provinces.
“Naming it after Zainab restricts it to a case and thereby a province i.e. Punjab,” she said. “Besides, it would be painful for the victim’s family if her name is constantly revoked.”
Chaudhry suggested that if the federal government wishes, it could amend the sentences for crimes related to child abuse by amending the PPC. “Those will definitely be applicable throughout Pakistan.”
Lawyer-turned-politician was on the same page as Chaudhry as he recalled the 2017 amendment in PPC passed by the August House to address endemic problem of child abuse and tightened laws concerning child pornography, exposure of children to seduction and child sexual abuse. Nasir reasoned that the provinces didn’t have to pass the laws in that case. He stressed that it would be appropriate to wait for the provinces to make their own laws in line with this one [ZARR Act 2020].
Although the law is essentially an alert system that establishes contact between public and private institutions, but it lacks classification of key issues such as time and complaint.
Where the bill requires the police to inform the agency within two hours after a complaint is lodged, it does not specify the time requirement for the lodging of the complaint itself. The definition of a complaint too remains unclear. The bill also does not specify the criteria to issue an alert.
If the Centre and the provinces reach an understanding on the matter, a common alert system with a nation-wide helpline and database could ensure swift response and recovery of a missing child.
An alert system can only be meaningful if the capacity and reach is nation-wide.