Eliminating corporal punishment: A Far Cry for Bangladesh?
MD. ASHIQ IQBAL and AURIN HUQ explore the legal and social barriers to the elimination of corporal punishment.
Corporal punishment: Legal settings at the global and local levels
Any state, aspiring to development on both economic and social fronts, must take on the responsibility for the development and safety of its children. Violence against children, in any form, must be eliminated by the state. One 'legalised' form of violence against children has been corporal punishments in different settings (home, school or any other) around the globe in all states, rich or poor. However, since the latter half of the 20th century, measures have been taken in different states to bring an end to corporal punishment, responding to the growing concern that allowing corporal punishment deprives the children of human rights to safety unlike an adult who are protected by law. Numerous researches also gave input to the growing concern that corporal punishment hampers proper development of a child, physical and psychological. To mention a recent one, Prof. Victoria Kang Lee of the University of Toronto studied 63 children in kindergarten or first grade at two West African private schools. According to their findings, "executive functioning" is one area of child development that suffers the most from corporal punishment. Children in a school that uses harder punitive measures are likely to demonstrate much worse performance in activities like planning and abstract thinking than children in a school that avoids corporal punishment and relies on alternative and softer measures like time-outs.
As the above study and findings from many others suggest, an insensitive and punitive approach to child 'discipline' could leave a long-term damaging impact on a child's intelligence and practical functioning in real life interactions. Consequently, children in such environments may be at risk for various behavioural problems. Clearly, both from the perspectives of the act of violence and the detrimental impact on child's future that corporal punishment involves, it is not just a socio-cultural issue but a human rights one. In recognition to this, the international community acknowledged the need to protect the human rights of the children, and incorporated states' responsibilities towards the issue in the legal settings of global governance. In 1989, the General Assembly of the United Nations adopted the Convention on the Rights of the Child (CRC), which has since been ratiﬁed by 193 member States. Of all the rights encompassed in the Convention are those that relates to the protection of a child from all forms of violence. From the Article 19 of the Convention:
* State parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”
* Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identiﬁcation, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”
As such, to comply with international law on human rights, states must prohibit corporal punishment by law. Bangladesh, one of the early ratifying countries of the Convention, has much to celebrate in the fact that it is one of the 33 countries of the world at present that has legally prohibited corporal punishment in all settings. The basic principles regarding child protection has been drawn by the Constitution of Bangladesh itself as it (Article 27,28 and 31) recognises the fundamental right to equality before the law and equal protection of all citizens by the law. As the Constitution ensures that 'the state shall not discriminate against any citizen in any ground, it lays down the general principles regarding the protection of children from discrimination including physical or mental assaults, as with the adults. The Constitution also allows the state to make special provision in favour of children (Article 28).
Within the legal framework of the country, there are over 35 laws seeking development and protection of children from negligence, cruelty, exploitation and abuse. To mention a few, the Children Act, 1974 is the principal law that seeks to ensure care, protection and treatment of children through empowerment of children and imposes these responsibilities to the state. The Penal Code, 1860, along with dealing with issues such as child trafficking and others, seeks child protection from different forms of sexual assault and harassment. The Bangladesh Labour Act, 2006 deals with the issue of child protection in the workplaces. Also to harmonise child protection laws with the global framework, particularly the CRC, the Children Act is now under review and the new draft of the Children Act was approved by the Cabinet in 2010 which now awaits enactment by the parliament.
However, it was only in the year 2011 a direct legal ground was achieved to act against corporal punishment in the country when a High Court Judgment was given acknowledging corporal punishment as a violation of human and constitutional rights of the children and banned such activities. Based on this judgment, the Ministry of Education formulated the “Guidelines regarding Prohibition of Physical and Mental Punishment in Educational Institutions 2011” that defines physical and psychological punishments and prohibits all sorts of corporal punishments in all educational institutions across the country.
The abovementioned legal framework depicts that the Constitution of Bangladesh does not support the practice of corporal punishment in principle. But it is still a regular practice at many schools of the country. Surprisingly there are several laws of our country that have kept the provision of corporal punishment.
There are about eight laws in our Constitution that legalises whipping and caning on children --The Whipping Act, 1909, The Railways Act, 1890, The Cantonment's Pure Food Act, 1966, Suppression of Immoral Traffic Act, 1933, The Prison Act, 1884, The Borstal Schools Act, 1928, Children Rules, 1976 and The Code of Criminal Procedure, 1898. Though these laws are rarely used for judgment, the provision of this kind of contradictory punishment system creates a negative image about the national legal system and Constitution. Recently, the law commission has been submitted with a proposal to annul these legislative provisions of whipping and caning on children to end all ambiguity regarding corporal punishment.
Prohibition is not elimination. In spite of having such legal framework, a glance at the daily newspapers is enough to get an idea of the current scenario of corporal punishments in the country. There are recent incidents of sexual harassment of students by their teachers that took place in renowned educational institutions of the capital city as well as inhuman torture by madrasa teachers in the name of religious guidance. Other than these extreme cases, punishment giving is practised at schools in other forms like psychological, financial and other physical punishments that involve less cruelty.
The ban on corporal punishment merely provided us with the stick of the protection umbrella to support on-the-ground measures in forming the roof of it. In the absence of such measures, ground realities do not reflect any significant changes since the banning of corporal punishments. Notwithstanding some positive impacts, what it has led to is a denial of the existence of corporal punishments, particularly in the school setting by the authorities. A very recently conducted survey by the Bangladesh Legal Aid Service Trust (BLAST) and Institute of Informatics and Development (IID) “Violence against Children in Education Institute Settings” indicated towards such a situation. While an overwhelming majority of the students (77.1%) confirmed the existence of some sort of punishment in the educational institutions -- physical, psychological or financial, only 34.9% of the teachers acknowledged these incidents. On the contrary, the awareness level about Corporal Punishment Act is impressively high among the students (82.3%), teachers (96.1%) and even the parents (72.9%). These two contradictory results reflect the reality that in spite of the existence of a law, we, as a nation, are least inclined towards coming out of our very own social practice of corporal punishment which has turned into a (misguided) necessity for child-rearing.
The social practice of corporal punishment has largely originated from our country context where children are generally encouraged to keep their opinions to themselves and parents take on the control in making major decisions on behalf of their children and prefer to keep their children busy with study or work. This process of child-rearing hampers their capacity development to form independent opinions and participation in decision-making. Another fact that hinders children's opinion development is unquestioned obedience which is synonymous with showing respect to elders in our society. This eventually leads to the belief that elders do everything for the welfare of the children around them. These two are the underlying reasons for the acceptance of punishments and reluctance about complaining against teachers in both parents and students. The abovementioned survey thus disclosed 79.9% of the guardians of having a system of punishment at home which ultimately develops this psychology of acceptance. Another psychology prevailing in the society is “I was punished for so many reasons in my childhood; so getting my children punished cannot be the wrong way”. Positively, we can expect the scenario to change soon, as the children are gradually empowered to protect themselves from such unlawful acts by both their teachers and parents.
Md. Ashiq Iqbal and Aurin Huq are researchers at the Institute of Informatics and Development (IID). The arguments made in this article, however, may not necessarily reflect the institution's view.From the survey results, only about 11% of the acts of punishment by the teachers are reported by the parents to the school authorities when they are informed about it by their children. On the other hand, the majority of parents, teachers and school committees mentioned that a system of reporting to the school/madrasa authority is in place. It may thus appear puzzling why they tend not to report such incidents to the school authorities. From the survey responses it is found that a fear of a negative impact on the student's academic and social life at school is a major factor for non-reports by the parents. Overall these fears appear to be more prominent in case of schools than madrasas. The other major reason is that the parents did not feel the necessity of reporting, again reflecting the acceptance of corporal punishment in the social context of Bangladesh. Therefore the awareness campaign on corporal punishment should simultaneously focus on penal action against the teacher or school staff using corporal punishment, protection of the student as well as on the negative impact of corporal punishment on child development.
Another widespread psychology in our society is that the madrasas are always ahead in the practice of corporal punishment. But surprisingly the “Violence against Children in Education Institute Settings” survey revealed higher extent of punishments in schools than madrasas whereas no significant difference was observed about the overall awareness level on the legality of punishments among madrasa (78.6%) and school students (84.8%).
Considering the loopholes in the act and also to ensure implementation of it, a draft child protection policy is in progress to be passed as a guideline for the school authorities and school personnel. This draft has shed light in process of dealing with situations at school, when any incident of corporal punishment takes place.
The best way to protect children is to empower them to secure themselves from all kind of abuse. They need to be guided to develop their self-esteem, confidence, independence of thought and the necessary skills to cope with possible threats to their personal safety both within and outside the school. Therefore, the government should include necessary training in the curriculum to facilitate the children to practice their rights.
Redesigning the teachers' training programme is also essential as they are the main caregivers to children outside the family context and have regular contact with children in the schools. Their training curriculum should focus more on alternative methods of handling children rather than punishing. They should be made aware of their responsibility to ensure that arrangements are in place to protect children and young people from harm. But approval of corporal punishment gives them the license to act out of temper. Therefore, the teachers' training should include a segment particularly on non-violent child handling methods.
Awareness building programmes are something that needs to be done more rigorously and very carefully without hurting the typical sentiment of people that they have been holding close to their heart but at the same time transmitting the message that corporal punishment hinders the child development process. Along with the provision of the law, the objective of child welfare should be highlighted more to promote the use of the law and consequently reduce corporal punishment at school settings.
Another established fact that needs to be communicated is the close association between school drop-out rates and existence of corporal punishment at schools. In a country like ours where literacy rate still needs a significant rise, we cannot afford more dropouts resulting from the existence of corporal punishment. Therefore the government should undertake necessary measures to pressurise the school authorities to eliminate the system of punishment and thus remove the fear of school from the children.
Any legal system takes a long time to bring about a change in a social practice and so will the ban on corporal punishment. Being only in its second year, it has created little visible impact on the social practices. However, an impressive and a growing level of awareness of the legal support for children against physical and psychological punishments is already evident among all the stakeholders. Therefore, an increased level of intervention from the government as well as the civil society can minimise this transition period and if this happens, eliminating corporal punishment may not prove to be a distant cry.
Md. Ashiq Iqbal and Aurin Huq are researchers at the Institute of Informatics and Development (IID). The arguments made in this article, however, may not necessarily reflect the institution's view.