Iqbal Ahmed Detho
The debate around legislating child protection laws and creating institutional mechanisms has got sympathetic constituency both among public and policy makers after the gory incident of raping the children and making their videos in Kasur, Punjab.
Before this incident became public, Federal Government had moved a draft bill in the parliament for establishing National Commission on the Rights of the Child (NCRC), necessitated after the ratification of UN Convention on the Rights of Child (UN CRC) by Pakistan 25 years ago. After the passage of eighteenth amendment in 2010, child rights have become a provincial subject and Parliament can legislate only on such provincial subjects under article 144 (1). If one or more Provincial Assembly passes a resolution to the effect that Parliament may by law regulate any matter not enumerated in the federal legislative list, it shall be lawful for Parliament to pass an act for regulating that matter.
However, under the entry no. 3 and 32 of the Federal legislative list – I, it is the prerogative of the federation to enter into international treaties and agreements. Thus, compliance at the international level is also the duty of the federal government or state under international law. As per the, Vienna Convention on the law of Treaties (VCLT), 1969, Article 26, Pacta sunt Servenda “Every treaty in force is binding upon the parties to it and must be performed in good faith” (Principle of free consent and of good faith).
Earlier, the Government of Pakistan had established the National Human Rights Commission Act (2012), the National Commission on the Status of Women Act (2012), and proposed a draft for a National Commission on the Rights of Minorities, as necessitated by its international commitments under various treaties ratified and pledges made before becoming a member of the UN Human Rights Council in 2007 and its subsidiary bodies. Such rights bodies and commissions have also been formed at the provincial level in the wake of 18th Constitutional Amendment on the devolved subjects such as human rights, women rights, child rights, and minority rights, with the exception of Baluchistan Province i.e Sindh Human Rights Commission (2011), KP Child Rights Commission on Welfare and Development (2010), and Punjab Provincial Commission on Women Rights (2014).
The primary purpose of such commissions is to monitor the implementation of respective theme or group rights at domestic level through promotion and protection measures, which includes the legislative, administrative and judicial actions by the respective governments.
The establishment of such commissions, which are called National Human Rights Institutions (NHRI) in the human rights parlance, is the primary protection mechanism for the promotion and protection of human rights in the countries. The UN has devised principles on assessing and how to enhance the effectiveness of such institutions and outcome, which are known as “Paris Principles”. These quasi-governmental institutions can play an effective role in monitoring the human rights situation, investigating human rights violations, and conducting a dialogue between public and authorities on human rights issues but it can be remembered that such institutions cannot be alternatives to the judiciary providing a legal redress.
In the light of the Paris Principles, there are three main issues with regard to effective functioning of the proposed National Child Rights Commission in Pakistan, which the draft bill is not adequately addressing.
It can be tested on three parameters for autonomy. First, the enabling law for the establishing commission should create its own cadre of officers, as proposed in the draft bill, is vague, and should not be dependent on the other branches of federal government, such as acquiring of staff and seeking assistance of investigating agencies and subjecting those staff to disciplinary measures governed by Civil Servants Act.
Second is the appointment process of members of [the] commission, wherein the criterion laid down in the proposed Section 4(2) is by administrative committee under the Chairmanship of the Minister in-charge of the Ministry of Human Rights. Thus, the appointment process of members/chairperson of commission seems to be arbitrary and politicized and investing the powers in the hand of Minister, who is also the political nominee of a ruling party.
Provincial quota is proposed along with women and minorities’ representation, which denotes that it is a forum where minorities and women are given special representation where there are already such forums like NCSW and National Council on Status of Minorities. Here we need commissioners who can effectively work for promotion and protection of child rights. However, in Paris Principles it has been laid down that while selecting member’s non-discrimination principle be kept in mind.
Nominations and recommendations process should be more inclusive, transparent and fair by forming parliamentary committee consisting of opposition members, and input from civil society may also be invited.
Third is the fiscal autonomy. In theory it seems good that there will a fund and regular budget so that [the] commission will formulate its own plans and disburse funds at its disposal. The point of concern is that in bill it is not clearly spelling that parliament will make annual adequate allocation on regular basis and subsequent approval mechanism for the budget and subject to grants which can be reduced due to austerity measures or lack of adequate resources and swords of lapsable budget will compromise the fiscal autonomy [sic].
On looking at the functions and powers of the commission, it is revealed that most of the focus is on promotional aspect of its mandate and weak on protection aspect.
Raising awareness about child rights is necessary, but the efficiency can be judged from the level of responses to the alleged violations of child rights, particularly when committed by government authorities, or their complicity or failure. It is pertinent to mention that it is not only the violation of civil and political rights, such as sexual assault, pornography, and child marriages, but violations of economic, social, and cultural rights – right to food, right to education, right to health – should also be clarified.
In addition to that it is to be seen how much impact of recommendations on government officials and policies is felt. In proposed draft though it is vested with powers of suo moto and inquiry and one of the main reasons cited for non-compliance is that such commissions do not have the power to take sanctions so their recommendations and proposals are ignored [sic]. More importantly, it will be the political will and commitment to implement the mandate of commission [sic].
The Paris Principle 6 and 7 state that such commissions must maintain positive relationship and consultations with other bodies responsible for promoting and protecting human rights.
As draft bill is defining the relation between National Commission on Status of Women (NCSW) or National Human Rights Commission and other such bodies as ex-officio members [sic].
These issues must be addressed and considered in line with Paris Principles before this bill is tabled in the National Assembly and sent to Senate.
The rights of children cannot be protected or promoted unless there is a comprehensive legislation that defines these rights and an institution that ensures that it is implemented.
It is only when such fundamental steps are taken that any improvement in the lives of children can be seen and one that benefits them equally.
Iqbal Ahmed Detho is Child Rights activist and holds degree in Human Rights (M.Sc) from London School of Economics and can be reached at i_detho@yahoo.com
