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Pakistan (Islamic Republic of)[1] [print]

Last edited: December 2005

 

Summary and Analysis

 

Pakistan ratified the Convention on the Rights of the Child on December 12, 1990. At the time of ratification, Pakistan made a general reservation that the provisions of the CRC shall be interpreted according to the principles of Islamic Laws and values. The reservation was withdrawn on July 23, 1997. Conventions are not enforceable in Pakistan until there is enabling legislation making them law of the land. Pakistan has not introduced any such law in regard to the CRC and therefore the Convention can not be invoked in the courts.[2]

The provisions of Article 12 of the Convention do not have specific comparable provisions in Pakistani law. Pakistan is a federative republic in which every province has separate legislation on issues of family law and child welfare in addition to the federal legislation. There is no mechanism to unify the legislation and thus different provisions apply in the different province.[3] In addition, being an Islamic republic, the Shari'ah (Sunnah interpretation) has great influence on these legal areas.[4] 

 

The Constitution of Pakistan states that the people will be guaranteed fundamental rights, including the freedom of expression. Article 19 of the Constitution also guarantees every citizen the right to freedom of speech and expression. Protection of marriage, family, mother and child is an acknowledged principle of policy under Article 35 of the Constitution.

 

The Guardian and Wards Act empowers the court to hear the child's opinion in guardianship and custody cases, if the child is capable of articulating his preferences. The court, however, is required to keep the best interests of the child in view, and it will reconcile these two requirements in case of conflict. The Act does not state the age of the child that will be capable of expressing his preferences but there were cases where a child at the age of 10 was heard in court. The court is not obliged to ascertain from the minor his wishes.[5]

The guardian is appointed at the request of any person desiring to take custody of the child, or the request of any relative or friend, or that of the district magistrate of the area where the child is ordinarily residing. All parties interested in the welfare of the child can participate in these proceedings and be heard.[6] 

However, there is no similar provision in other proceedings. According to Islamic law, the parents or guardians decide what the best interest of the child is and the child is unable to take a stand on any important decision affecting his life.[7]

According to the state's report to the Committee on the Rights of the Child, the law interferes in family matters only when the family breaks down and then the law gives preference to the next of kin, or the extended family, in granting responsibility for the guidance of the child. The law imposes criminal penalties for the neglect of the child.[8] 

 

The National Commission for Child Welfare and Development (NCCWD) is the body responsible for implementation of the Convention in Pakistan. The commission consisted of some national expert committees, one of them for the protection of rights of children (including juvenile justice, family environment, abuse, neglect, exploitation and child labor).[9]

 

Recently, the Punjab province entered new legislation to establish protective proceedings; The Punjab Destitute and Neglected Children Act 2004[10] replaced The Punjab Children Ordinance, 1983. The new act includes provisions for the establishment of the Child Protection and Welfare Bureau, court proceedings (in Child Protection Courts) to deal with children that suffer from, among other things, neglect by their parents or guardians. The new act does not have a specific provision to allow the child to be heard in these proceedings.

The Punjab government also has a Provincial Advisor for Child Rights, Dr. Faiza Asghar, who is also Chairperson of the Child Protection Bureau.[11] Nevertheless, there is no indication that the Child Protection and Welfare Bureau has started to operate.

 

Sources of Law (In Order of Authority)

 

Constitution

 

The Constitution [12]

 

Article 19.

Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relaffons with foreign States, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence.

Article 35.

The State shall protect the marriage, the family, the mother and the child.

Statutes

 

The Guardian and Wards Act, 1890 [13]

Article 17. Matters to be considered by the Court in appointing guardian

 

(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(5) The Court shall not appoint or declare any person to be a guardian against his will.

 

Article 24. Duties of guardian of the person

 

A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.

 

Article 39. Removal of guardian

 

The Court may on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely :-

(a) for abuse of his trust;

(b) for continued failure to perform the duties of his trust ;

(c) for incapacity to perform the duties of his trust;

(d) for ill-treatment, or neglect to take proper care, of his ward;

 

Additional Links and Sources

 

Sardar Muhammad, The Guardians and Wards Act (VIII of 1890) & The Majority Act (IX of 1875), P.L.D Commentary, 1992.

 

Hakim Amir, Comprehensive Manual of Family Laws in Pakistan, first edition, 1999.

 

http://www.pakistanlawyer.com Pakistan lawyer

http://www.pak.gov.pk/ - The government of Pakistan

http://www.ljcp.gov.pk/ - The law & justice commission of Pakistan

http://punjablaws.gov.pk/ - Laws of Punjab province

http://www.sparcpk.org/ - Society for the Protection of the Rights of the Child

 



Endnotes

[1] This page is also available as a .pdf Document, and Word Document.

[2] Society for the Protection of the Rights of the Child, Child Rights in Pakistan, http://www.sparcpk.org/CRs-CRs%20in%20Pakistan.htm.

[3] Shaheen Sardar Ali and Baela Jamil, The United Nations Convention on the Rights of the Child, Islamic Law and Pakistan Legislation: A Comparative Study, December 1994, p.162.

[4] For more information on the legislation og Pakistan, see http://www.foreignlawguide.com/ip/flg/Pakistan.htm.

[5] Shaukat Mahmood and Nadeem Shaukat, The Guardians and Wards Act and The Majority Act, fifth edition, 1993. p.68-69.

[6] Second Periodic Report, U.N. Doc. CRC/C/65/Add.21, ¶185, available here, and also as .pdf Document, and also as Word Document.

[7] Shaheen Sardar Ali and Baela Jamil, supra note, p.60.

[8] Second Periodic Report, supra note 5, ¶164.

[9] Government of Pakistan, Women Development Division, National Commission for Child Welfare & Development, at http://www.pakistan.gov.pk/divisions/ContentListing.jsp?DivID=20&cPath=185_191_399_404.

[10] The Punjab Destitute and Neglected Children Act (Pb. Act XVIII of 2004), available at http://punjablaws.gov.pk/laws/472.html, and also here, and also as .pdf Document, and also as Word Document.

[11] Pakistan Times, Punjab CM Orders Steps to End Beggary, at http://pakistantimes.net/2004/10/09/national5.htm.

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