THE CHILDREN OF PAKISTAN:Law Reforms, National Plan of Action

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Lesson 17

THE CHILDREN OF PAKISTAN

Note: The text of this handout is excerpted from the publication titled: "State of Pakistan's Children -

2004" complied and published by the Society for the Protection of the Rights of the Child (SPARC) whose

Head Office is located in Islamabad and which publishes such an Annual Report each year.

SPARC is led by a group of volunteers who serve as its Board of Directors whose Chairman happens to be

the lecturer for this series.

Having completed over 10 years of existence under the able leadership of Advocate Anis Jillani, SPARC seeks

to monitor the condition of children with special reference to access to education, health and basic services as

well as their legal and social rights. Primarily functioning as an advocacy group, SPARC also does a limited

amount of service delivery work.

The handout focuses the attention of students on the need for Pakistan to bring its own laws and policies in

line with the UN Convention on the Rights of the Child and refers to comments made by the Geneva-based

UN Committee which deals with this particular subject.

Students are advised that if they wish to obtain further information about SPARC, they should contact

organization at: http://www.sparcpk.org, email: sparc@comsats.nt.pk.

There are several other organizations in Pakistan doing commendable work on behalf of children.

Excerpt:

Implementing the United Nations Convention on the Rights of the Child in Pakistan (UNCRC)

Pakistan signed and ratified the UNCRC effective December 12, 1990 and, earlier in the year in September,

co-hosted the World Summit for Children. The year 2004, also designated as the "Year of Child Welfare and

Rights" thus marks the fourteenth year of a major international commitment. Unfortunately, Pakistan's

progress towards meeting this obligation has been slow and measures required for implementation of the

UNCRC have been weak on all counts. The UN Committee on the Rights of the Child in its Concluding

Observations to Pakistan's Second Periodic Report, which was reviewed in 2003, made a number of

recommendations to improve upon the implementation status of the UNCRC.

Law Reforms

A UNICEF study of the implementation process initiated in 50 countries after the adoption of the UNCRC,

with particular focus on legal and institutional reforms at the national level, shows that the Convention has

been incorporated into the national legal framework of most of these countries. In some countries, it was

automatically integrated into the legal framework by existing constitutional principles, while in others; it was

incorporated into national law by legislation adopted specifically for this purpose. In some, there has been a

more gradual reform of different legislations concerning children, while some have only focused on the

design and implementation of programs, rather than law reform.

In Pakistan, international legal obligations can only become part of national law through enabling legislation

developed for this purpose. There have been no steps taken to incorporate the Convention into domestic

legislation. The existing legislative framework is inadequate and lacks harmonization with the provisions of

the UNCRC. Even specific laws for protecting children against violence and exploitation or for promoting

their rights are either not enforced, or poorly implemented. Then there are legal provisions that actually

discriminate on the basis of gender, and even condone violence against children. In addition, laws that are

enforced in the rest of the country are not de facto applied in the Northern Tribal Territories, and therefore

children living in these territories do not fully enjoy their rights. The Committee on the Rights of the Child

has reiterated in its recommendation that Pakistan should scrutinize carefully existing legislative and other

measures, both at the federal and provincial levels, with a view to ensuring that the provisions and principles

of the Convention are implemented throughout the territory.

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As a measure of compliance with the UNCRC, the Government of Pakistan, in 2003 initiated a process of

review of child-related laws in order to bring them into conformity with the Convention. A report on its

findings and recommendations is still awaited. This piecemeal approach to legislative reform, as adopted by

Pakistan, which only brings part of the national law into conformity with the UNCRC, will not provide the

protection that a national law, which incorporates the whole range of rights set forth in the UNCRC can.

The temporary repeal by the Punjab High Court of a juvenile justice related law is a case in point.

The only major step taken to enact legislation according to the UNCRC provisions was the promulgation of

the JJSO (Juvenile Justice Systems Ordinance 2000). The JJSO was hailed as an important breakthrough in

bringing a major law in conformity with international law, incorporating, as it did, many of the fundamental

principles for the administration of juvenile justice. In the past four years, even though the law was not

effectively implemented, it had begun to make a difference. There was increased recognition of the rights of

juveniles, due in great part to the efforts of the Society for the Protection of the Rights of the Child under its

project with DSC, and initial steps had been taken to conform judicial practices to the new standards.

Unfortunately, this one and only positive step suffered a major setback by the Lahore High Court judgment

of December 6, 2004, which struck down the JJSO on grounds of it being unconstitutional, unreasonable and

impracticable. The UNCRC was cited as a major justification for JJSO's enactment and its continuity; and

the Court expressed its inability to enforce and conform to the principles of the Convention as it said

UNCRC is not part of the domestic law of the country. The Bench also ordered the abolition of juvenile

courts and transfer of all cases pending with them to the ordinary courts of competent jurisdiction in the

Punjab. The Bench was critical of the concessions given in different sections of the law, in particular those

pertaining to the abolition of death penalty and the introduction of the new ceiling of age. The move, which

ironically came in the "Year of Child Rights and Welfare", indicates the level of awareness regarding the

provisions of the UNCRC and government's international obligations as well as the gap between

internationally accepted principles and local legislation.

On a subsequent appeal to the Supreme Court filed by the Society for the Protection of the Rights of the

Child, the Supreme Court suspended the judgment of the Punjab High Court, thus reviving, till the final

conclusion of the hearing by the Supreme Court on the petition, the validity of the JJSO.

Independent Human Rights Institutions for Children

Establishing independent children's rights institutions is considered a reflection of government's commitment

to achieving effective implementation of the UNCRC. A number of countries, following ratification of the

UNCRC have made progress on this front and have set up, through law, such independent monitoring

structures, in the form of a children's ombudsman, children's commissioners or focal points within existing

national human rights monitoring structures.

The UN Child Rights Committee expressed its concern at the lack of an independent monitoring structure in

Pakistan, with a mandate to regularly evaluate progress in the implementation of the Convention, and that

would also be empowered to receive and address individual complaints of violations of the rights of the child.

The Committee recommended the establishment of an "independent and effective monitoring mechanism in

accordance with the Principles relating to the status of national institutions for the promotion and protection

of human rights (the Paris Principles, General Assembly resolution 48/134) and taking into account the

Committee's general comment number 2 on the role of independent human rights institutions, ensuring that

it is provided with adequate human and financial resources, and which should be easily accessible to children.

It should have a mandate to monitor the implementation of the Convention as well as to receive and address

complaints from children, and do so in a child-sensitive and expeditious manner.

What is a National Plan of Action?

A National Plan of Action is a statement by a government of the key issues for children in that country. It

indicates how the government will:

Keep the promises it made at the United Nations General Assembly Special Session (UNGASS), and

who is responsible for doing so.

Adopt the goals of the UNGASS to make them relevant to the specific reality and needs of that

country.

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Develop specific national goals and targets which can be measured to see how far they are being

achieved.

Take practical steps to achieve the goals and targets.

Build these goals and targets into other policies, plans and programs.

Find the money and other resources to achieve the goals and targets.

Check on the progress it is making towards the goals and targets.

Work with other stakeholders, such as children and NGOs.

Once National Plans of Action have been prepared they will be implemented, i.e. put into action.

Over time, they will need to be monitored to ensure that they are achieving what was planned.*

* National Plans of Action for Children involving Children and Young People in their Development.

www.savethechildren.ca/specialsession.

National Plan of Action

An important step towards the implementation of the UNCRC is the development of comprehensive

national plans of action, linked with the goals agreed upon at the World Summit for Children and the

UNGASS on Children. At the UNGASS, world leaders committed to meet the unfinished agenda of the

World Summit for Children, and agreed on a number of goals to be met by 2010. These goals set

intermediate targets and benchmarks in line with the Millennium Development Goals agreed upon in 2000 at

the Millennium Summit.

Following the Special Session, countries were expected to prepare, as `a matter of urgency' national plans of

action for children with a set of specific time-bound and measurable goals and targets. The 190 governments

represented at the Special Session agreed that all this work should be completed `if possible by the end of

2003'.

The governments also committed to implementing the national plans of action through consideration of such

measures as:

Putting in place, as appropriate, effective national legislation, policies and actions plans and allocating

resources to fulfil and protect the rights and to secure the well-being of children.

Establishing or strengthening national bodies, such as, independent ombudspersons for children,

where appropriate, or other institutions for the promotion and protection of the rights of the child.

Developing national monitoring and evaluation systems to assess the impact of our actions on

children.

The UN Committee also recommended that this process should be completed as soon as possible and that

necessary measures, including budget allocation, review of legislation, monitoring and evaluation, be taken to

fully implement the Plan of Action. It also recommended that a child-rights based approach be adopted in

the new National Plan of Action.

In order to develop Pakistan's plan of action, a national-level Expert Committee was established, through a

notification number 4-1/2002-NCCWD dated September 12, 2002, to lead the process and also to look into

the causes as to why the first NPA became redundant early in its implementation course. It was further

hoped that the revised NPA would be a document developed through a participatory decentralized process

given the rights based framework, and the new realities of devolution. Almost three years have passed since

the UNGASS; the previous NPA lapsed almost five years ago, and the new National Plan of Action remains

to be finalized. Till the end of 2004, a year after the deadline, a draft was shared with stakeholders for review

but the Action Plan remains to be officially adopted. The draft NPA is a vast improvement on the previous

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one and also includes provincial and regional plans, with targets, indicators, responsibilities as well as

budgetary requirements. Annual reviews and a final assessment at the end of year 2015 are also factored into

the NPA.

Permanent Institutions Responsible for the Implementation of the UNCRC

There is a vast range of mechanisms and institutions within governments with the responsibility to coordinate

efforts for the implementation of the UNCRC, including children's units in the offices of heads of state or

government; committees and commissions for children; departments for children's rights; ministries for

children and/or youth; and national councils for children and the rights of the child.

In Pakistan, the NCCWD (National Commission for Child Welfare and Development) acts as the advisory

body to the government and works under the Federal Ministry for Social Welfare. It is in charge of policy

making, implementation of policies for the welfare and development of children in Pakistan, and for

coordinating activities relating to the implementation of the Convention. The NCCWD has provincial

chapters and following devolution, district level commissions are being set up. These Provincial and District

Commissions however, have limited financial, material and human capacity, and rely on financial support

from international and bilateral donors. The UN Committee has recommended that the government take

measures to strengthen coordination among the different bodies of the Government at the federal, provincial

and local government levels and to ensure that the intended Pakistan Commission for the Welfare and

Protection of the Rights of the Child is provided with adequate financial and human resources.

The Government of Pakistan had announced its intention to establish the Pakistan Commission for the

Welfare and Protection of the Rights of the Child, which is intended to replace the existing NCCWD. There

has been no development on this matter.

Allocation of Resources to Ensure the UNCRC Implementation:

Implementation of the UNCRC and achieving the goals set out in the NPA require the allocation of

significant additional human, financial, and material resources. Pakistan's social indicators relating to children

speak of the persistently low budgetary allocations, far below the internationally recommended standards for

developing countries, to critical sectors of education and health. In the education sector, Pakistan spends

2.2% of its GDP whereas Unesco recommends 4% of GDP for the education sector. In the health sector,

the government spending has only recently been increased to 0.9% of its GDP. The expenditure on health

per capita is $16, out of which the government spends only $4. The WHO recommends $36 for a package of

essential health services. How these meager resources are spent is also a matter of concern: equitable

distribution of resources is of essence in a rights-based approach to development. In Pakistan, the rural and

remote areas of the country remain deprived of many essential social services. The flexibility allowed by the

UNCRC's Article 4, which refers to `maximum extent of available resources' has become a ready excuse for

justifying poor performance in this area.

Despite the commitments made by the State Party (i.e. Pakistan) at the fifty-ninth session of the UN

Commission on Human Rights to invest liberally in the health, education and development of children, the

UN Child Rights Committee expressed its concern at the limited resource allocations for children, and at the

modest portion of the budget that is allocated for social activities, such as health and education. The

Committee noted that not enough attention has been paid to allocating budgetary resources "to the maximum

extent of ... available resources" for the implementation of the Convention and recommended that the State

Party give priority to increasing budget allocations for children, ensuring a judicious distribution of the

resources between different fields, and paying particular attention to enhancing the budget allocations for

social activities, in particular health, education and child development.

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