Pakistan should establish an independent Children's Commission

Abdullah Khoso

Whether you look at the period before or after the 18th Constitutional Amendment in April 2010, there was and is no independent National Commission on the Rights of Children (NCRC) in Pakistan. Such a Commission would be able to monitor the implementation of the United Nations Convention on the Rights of the Child (CRC) – which Pakistan ratified 21 years ago – and respond to the child rights violations that continue to take place in various forms.

In the absence of an independent NCRC, it has been observed that child rights is in a very poor state, and coordination among the different bodies of the Government responsible for implementation and monitoring of child rights at the federal, provincial and territorial levels is inadequate, whether in relation to survival, development, protection or participation. There is also no entity responsible for following up on the Committee on the Rights of the Child’s (the Committee) recommendations on the implementation of the CRC.

In its Concluding Observations and Recommendations (October 2009) on Pakistan’s periodic CRC report, the Committee regretted that the NCRC, which was supposed to replace the National Commission for Child Welfare and Development (NCCWD), had not been established despite a Bill being drafted for that purpose in 2001. The Committee recommended Pakistan to establish an independent and effective monitoring mechanism in accordance with the Paris Principles and General Assembly resolution 48/134.

There seems to be a general perception that since there is already a NCCWD, a new NCRC would not be of any use. But the fact is that the NCCWD can do nothing which an independent NCRC can do. For that reason, there is a need to understand, first, why the NCCWD and current provincial institutions related to children cannot do this job, and, second, what has happened after the 18th Constitutional Amendment.

Through a National Assembly resolution in 1980, the NCCWD was established as an advisory body within the Ministry of Social Welfare and Special Education (MoSWSE). Unfortunately, as the NCCWD was established through a resolution it had no legal standing and was working with limited human and financial resources, as well as with limited powers to prevent and respond to violations of child rights in any form. In reality, due to the given limitations, the NCCWD was only able to address a few issues related to child protection in the broader framework of child rights.

After the 18th Amendment, the MoSWSE was devolved to the provinces, which resulted in the placement of the NCCWD under the Capital Administration Development Division (CADD) with a mandate to address only child protection issues in the rural and urban areas of Islamabad. In 2011, through a prime minister’s order the NCCWD was placed under the Ministry of Human Rights with the same mandate and limitations.

On the other hand, child rights organizations unsuccessfully pushed for the enactment of the NCRC bill, because it was believed that since the Concurrent Legislative List (CLL) was removed with the 18th Amendment, child rights had become a provincial matter due to child rights being mentioned in Section 5 of the CLL: “Marriage and divorce; infants and minors; adoption” (Section 5).

In 2010, the Law and Justice Division commented on the NCRC Bill, stressing that since child rights had become a provincial matter because of the abolition of the CLL and because there is no mention of child rights in the Federal Legislative List, the parliament cannot legislate for the whole of Pakistan unless one or more provincial assemblies pass legislation (as mentioned in Article 144 of the Constitution of Pakistan). However, parliament can pass legislation for the Islamabad Capital Territory. Consequently, the MoSWSE communicated with the Provincial Chief Ministers with the purpose of seeking resolutions from the provincial assemblies to support the NCRC Bill. The Khyber Pakhtunkhwa opposed the proposal and the other assemblies did not respond. By the time, MoSWSE was devolved.

After the 18th Amendment, only two provinces passed legislation related to child protection – one of the four key components of child rights – under which provincial-level child protection institutions were to be established. In September 2010, Khyber Pakhtunkhwa promulgated the Child Protection and Welfare Act; under the Act, the Child Protection and Welfare Commission was to be established. In June 2011, Sindh enacted the Sindh Child Protection Authority Act under which a Child Protection Authority was to be constituted. From the title of these laws, it appears that both merely deal with one out of four components of child rights. In addition to protection, the other three components are: survival, development and participation. These provincial laws and the institutions that have been established under them do not address the concerns of child rights organizations and the Committee, because neither law confers independent status on the institution. In addition, they do not have their own resources nor the ability to exercise their powers independently.

The NCRC Bill drafted some years ago also comes with a number of serious problems. If passed, the bill would not lead to the establishment of a genuinely independent NCRC. Therefore, the Government should immediately review, improve and pass the long-pending bill because child rights is still a matter concerning the federal government and by passing it minimum standards of child rights could be ensured across the country. The draft bill should be reviewed and improved in light of the following:

1) The NCRC should be independent and not part of any ministry, such as the ministry of women and human rights, because it would only end up as an extended department of the ministry and would not be able to discharge the duty independently; 2) The selection of the Chairperson and the members should be the prerogative of the Government, but it should be done through a colloquium in which the Government, leaders of the opposition, the Chief Justice of the Supreme Court and persons of eminence are part of the selection process; 3) The NCRC budget should be directly allocated through the parliament/national assembly; 4) The NCRC should submit an annual report to the central government and the central government should present the report to the parliament – in that way the Commission will be accountable to the parliament; 5) Powers of inquiry into complains should be clearly laid down; 6) The NCRC should not undertake projects but rather act as watchdog and safeguard the rights of children. 7) The NCRC should have direct linkages and a mechanism for coordination with the Human Rights Commission and other commissions in place.

The writer is a student of human rights, and can be reached at twitter @abdulkhoso