Child Rights and 18th Amendment

By Arshad Mahmood

THE situation of child rights in Pakistan demands immediate attention and action by parliament and the government to legislate for child protection, ban child domestic labour and put in place a comprehensive National Child Protection Policy.
Unfortunately, progress on the proposed National Child Protection Policy, the Criminal Laws Amendment Bill 2009 and a few other bills came to a halt following the passage of the 18th Amendment earlier this year. In May 2010 the National Commission on the Rights of Children Bill 2009 was sent back to the ministry of social welfare and special education by the law and justice division on the sole ground that parliament cannot legislate on the subject of children after the 18th Amendment. As a result the future of various bills and policies concerning children has become uncertain.
The Concurrent List has been deleted by the 18th Amendment, which has created confusion within the relevant ministries, departments and among other stakeholders on the legislative competency of the federal legislature and existence of coordination mechanism at the national level on the subject of children.
Article 25(1) of the constitution enshrines the foundational concept of legal equality of citizens and holds that “all citizens are equal before law and are entitled to equal protection of law”. Article 25(3) of the constitution recognises the special right of protection for children due to their vulnerability and states “nothing in this article shall prevent the state from making special provision for the protection of women and children”.
Further, Article 37(e) stipulates in relevant parts that the state shall “make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex.…”
Furthermore, according to amended Article 142(b), the federal legislature has the power to make laws with respect to criminal law, criminal procedure and evidence. On the authority of these articles it can be argued that, notwithstanding promulgation of the 18th Amendment and the consequent legislative devolution to provincial assemblies with regard to child welfare matters, the federal legislature cannot be prevented from making special provisions for children and from enacting legislation relating to children`s rights.
In addition to the constitutional obligations of the state towards children there are also international obligations of the state being party to international treaties. Pakistan has ratified a number of UN and ILO conventions; Article 4 of the UN Convention on the Rights of the Child that Pakistan ratified on Nov 12, 1990 made it obligatory on the state parties to take all appropriate legislative, administrative and other measures for the implementation of the rights enshrined in the convention.
The Committee on the Rights of the Child in its general comment No 5, `General Measures of the Implementation of the UN CRC, 2003` says that “when a state ratifies the Convention on the Rights of the Child, it takes on obligations under international law to implement it”. In para 40 of the GC 5 it has been stated that “the committee has found it necessary to emphasise to many states that decentralisation of power, through devolution and delegation of government, does not in any way reduce the direct responsibility of the state party`s government to fulfil its obligations to all children within its jurisdiction, regardless of the state structure”.
GC 5 clearly spells out that the federal government is responsible for fulfilling its obligation irrespective of the devolution and structure. The committee, in its concluding observations of 2003 as well as of 2009, has stressed on the need to legislate for the protection of child rights.
Pursuant to item no 3 in part I of the Federal List, “external affairs; the implementation of treaties and agreements…” is within the legislative realm of the federal legislature. Further, a new item (no 32) has been introduced under the 18th Amendment in part I of the Federal List mentioning the terms `international treaties`, `conventions` and `agreements` etc. This also enables the federal legislature to enact laws on subjects covered by international treaties, conventions and agreements.
However, there is a need to create clarity about this among the stakeholders (federal ministries and provincial governments) as presently even the law and justice division is raising objections to legislation which is in line with our international obligations, based on the assumption that the federal legislature cannot legislate on the subject.
Some fundamental rights which we believed would be taken care of but were ignored in the 18th Amendment include the Frontier Crimes Regulation and amendments in Article 247 (Administration of Tribal Areas) of the constitution. The 18th Amendment is silent on the issue of bringing any reforms in Fata. As a result, the status of child rights in Fata in the light of our constitutional and international obligations will remain a question mark.
The growing incidence of violence against children reminds us of the importance of legislation and mechanisms for the protection of children`s rights. Can the state and civil society protect children? Is it all about resources or poverty of will that has resulted in growing incidents of violence?
The Implementation Commission for the 18th Amendment should play its role; clarify the unnecessary confusion created by various ministries with reference to competence of the federal legislature to legislate about child rights in light of the state`s constitutional and international obligations. This will lead to the immediate adoption of a number of child-related laws that have been in the pipeline for years.

Published in Daily Dawn on October 03, 2010

http://www.dawn.com/2010/10/03/child-rights-and-18th-amendment-by-arshad-mahmood.html