International Human Rights Safeguards and Standards
International law has established a comprehensive framework setting standards for the protection of children against abuse, neglect and exploitation. It also the lays down essential standards for the juvenile justice system in order to protect the rights of children in the administration of justice. Though the primary framework of protection is provided under the Convention on the Rights of the Child ratified by Pakistan, Article 24 of the ICCPR and Article 10(3) of the ICESCR seek to protect the rights of a child as well. While Article 24 of the ICCPR grants every child “the right to such measures of protection as are required by his status as a minor, on the part…the State”, Article 10(3) of the ICESCR requires that States “set age limits below which the paid employment of child labour should be prohibited and punishable by law” and protect children from “economic and social exploitation”.
For a summary of the framework established by the CRC please refer to Figure 2.5 in Section 2 of this Guide.
In addition, Pakistan has also ratified two Optional Protocols to the CRC, including the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in Armed Conflict (25 May 2000), ratified on 7 November 2016, and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (25 May 2000), ratified on 5 July 2011.
The Convention on the Rights of the Child, in Article 1, defines a child as a person below the age of eighteen years, unless, under the law applicable to the child, majority is attained earlier. The Committee on the Rights of the Child, the monitoring body established under Article 43 of the Convention, continues to encourage States to review their laws and increase the age of adulthood to 18 universally. The Committee has identified four provisions of the Convention which highlight the general principles of protection of children. These include the non-discrimination, best interests of the child, survival and development, and the right to express his or her views.[1]
The Convention also outlines provisions on various areas within the criminal justice system, including protection from specific offences committed against children such as violence, child labour, trafficking and sexual exploitation, and protections afforded to children within the juvenile justice system including detention, punishment, and rehabilitation.
Article 19 of the Convention requires all States to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, sexual abuse, neglect or exploitation. Article 32 protects against child labour by requiring States to take measures to protect the child from economic exploitation and hazardous work, and also provide for a minimum age for admission to employment, appropriate regulation of hours and conditions of employment, and penalties to ensure implementation of the laws. The Convention also requires parties to take all measures to prevent the use of children in the illicit production and trafficking of such substances in Article 33. Protection from sexual exploitation and abuse is provided in Article 34 of the Convention, which also includes protection against child prostitution and child pornography, while Article 35 protects against the abduction of, the sale of or traffic in children.
With regard to the juvenile justice system, the relevant provisions include Article 37 on detention and punishment, and Article 40 on juvenile justice. Article 37 provides protection against torture or other cruel, inhuman or degrading treatment, and explicitly protects against the imposition of the capital punishment or life imprisonment without possibility of release on children. On arrest and detention, the Convention protects against arbitrary or unlawful deprivation of liberty, and states that the arrest, detention or imprisonment of a child must be in conformity with the law and shall be used only as a “measure of last resort and for the shortest appropriate period of time”. Moreover, it grants the right of the child to maintain contact with his or her family through correspondence and visits unless it is not considered in the child’s best interests. Article 37(d) grants the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of liberty before a court or other competent authority.
For the administration of juvenile justice, Article 40 of the Convention provides general human rights guarantees of a fair trial to children accused of infringing the penal law, such as treatment of children consistent with their dignity and worth, right to the presumption of innocence, right to privacy, right to be informed of the charges against him/her, and the responsibility of the State to establish a minimum age of criminal capacity. It further requires the States to have the matter determined “without delay” by a competent, independent and impartial authority or judicial body. It further protects the child against forced confessions, and extends rights including the right of appeal and the free assistance of an interpreter if needed. The failure to provide these rights to children, as highlighted by the UN Committee on the Rights of the Child “has very negative consequences for the child’s harmonious development and seriously hampers his/her reintegration in society”.[2]
Other than this, General comment No. 24 (2019) on children’s rights in the child justice system states that children below the minimum age of criminal responsibility must be provided with assistance and services according to their needs, by the appropriate authorities, and should not be viewed as children who have committed criminal offences. Furthermore, if there is no proof of age, the child is to be given the benefit of the doubt and not held criminally responsible.[3] Moreover, it states that a child who does not have a birth certificate should be provided with one promptly and free of charge by the State, whenever it is required to prove age. It also recommends that the laws should contain a wide variety of non-custodial measures and should expressly prioritize the use of such measures instead of depriving the child of his liberty, which is a measure of the “last resort for the shortest appropriate amount of time”.
Moreover, the General Comment outlines that the reaction to an offence should always be proportionate not only to the circumstances and the gravity of the offence, but also to the personal circumstances including age, lesser culpability, circumstances and needs, as well as mental health. It also states that a comprehensive child justice system requires the establishment of specialized units within the police, the judiciary, the court system and the prosecutor’s office, as well as specialized defenders or other representatives who provide legal or other appropriate assistance to the child.
Pakistan has also ratified the International Labour Organization’s (ILO) core Conventions relating to child labour. This includes the Minimum Age Convention 1973 (No. 138), ratified in 2006 by Pakistan, after which Pakistan specified the minimum age for admission to employment or work as 14 years in its declaration as required by the Convention. Pakistan also ratified the Worst Forms of Child Labour Convention 1999 (No. 182) in 2001, which aims to protect children against the worst forms of child labour including child trafficking, selling children for prostitution, child pornography, and other illicit activities including the production and trafficking of drugs, as well as work which is likely to harm the health, safety or morals of children.
Other international human rights law instruments include Guidelines for Action on Children in the Criminal Justice System recommended by the Economic and Social Council Resolution,[4] which recommends specific targets including the effectiveness of birth registration programmes, independent panels to review existing juvenile justice laws, legal assistance programmes, easy access to detained children by relatives etc., an independent body to monitor conditions in custodial facilities, and for trainings and education in human rights to be provided to all those responsible for children in the criminal justice system including the police, judges, prosecutors, health personnel and prison officers.
Another regional instrument dealing with trafficking in children and women for prostitution is the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, to which Pakistan is also a signatory.[5] It defines a child as a person under the age of 18 years, and requires State parties to take effective measures to ensure that trafficking in any form is an offence under their respective criminal law with appropriate penalties while taking into account aggravating circumstances. It also requires State Parties to the Convention shall grant to each other the widest measure of mutual legal assistance in respect of investigations, inquiries, trials or other proceedings.
Other than this, some international and regional instruments of child rights include SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia; the Stockholm Declaration and Agenda for Action, 1996 against Commercial Sexual Exploitation of Children; the South to South Cooperation on Child Rights 2010; the Yokohama Global Commitment, 2001 against Commercial Sexual Exploitation of Children; the Third World Congress against Sexual Exploitation of Children and Adolescents Rio De Janeiro, 25 – 28 November 2008; and the South Asia Initiative to End Violence Against Children (SAIEVAC).
[1] CRC, ‘General Comment No. 5 (2003): General Measures of Implementation of the Convention on the Rights of the Child’ 27 November 2003, UN Doc CRC/GC/2003/5, para 12
[2] UN Committee on the Rights of the Child (CRC), General Comment No. 10 (2007): Children’s Rights in Juvenile Justice, 25 April 2007, CRC/C/GC/10.
[3] CRC, ‘General comment No. 24 (2019): Children’s Rights in the Child Justice System’, UN Doc. CRC/C/GC/24 (2019)
[4] Guidelines for Action on Children in the Criminal Justice System Recommended by Economic and Social Council Resolution 1997/30 of 21 July 1997
[5] SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, available at: http://un-act.org/wp-content/uploads/2015/11/South-Asian-Association-for-Regional-Cooperation-SAARC-Convention-on-Preventing-and-Combating-Trafficking-in-Women-and-Children-for-Prostitution.pdf