The Zainab Alert, Response and Recovery Act, 2020

Introduction

A new law is in the making. On 10th of January 2020, the National Assembly passed ‘The Zainab Alert, Response and Recovery Act, 2020’. It is likely to be passed from the Senate, and will ultimately get its assent from the President before it becomes the law check. The said law deals with very important subject of child protection. It deserves understanding before its implementation is evaluated. The instant write-up will state the characteristic features of the law and will then briefly analyze its implications and effects.

Origin

On 4th January 2018, a five-year-old girl Zainab was raped and killed in Kasur district of Punjab. The incident resulted in unprecedented hue and cry despite the fact that it was not the first and only type of incident of its kind. The whole nation reacted strongly against the tragedy. Media led the movement and kept fuelling attention to the ghastly act. Resultantly, in addition to bringing the culprit to justice, the incident initiated a debate to improve the old legal framework dealing with cases of children. The debate brought in discussion about AMBER Alert—an acronym for America’s Missing: Broadcast Emergency Response system. Americans had named the system after a nine-year-old girl Amber Hagerman from Texas, the United States. Zainab became a victim of crime of murder after abduction. The origin of the law may be borrowed from the United States but is the outcome of similar human tragedy.

Characteristic Features

The draft law, in its present form, is limited in its application and proposes to amend the substantive and procedural criminal law of Pakistan. The law may be summarized through the following points that are characteristic in nature:

1. Scope of the Law

The law is limited in its application. It is applicable to the Islamabad Capital Territory (ICT) only, and is not applicable to all the four provinces. The limited approach has been taken due to the abolishing of the concurrent list from the Constitution. An alternative view is that the law should have been extended to whole of Pakistan by extending it the benefit of Article 142 of the Constitution that treats the criminal law, the criminal procedure and evidence and concurrent subjects of legislation. There is a strong case to do so in the domain of human rights especially in view of the international law obligations undertaken by Pakistan in various human rights-related international treaties like the Convention for the Protection of Children, 1989.

2. ZARRA

The law proposes the establishment of Zainab Alert, Response and Recovery Agency of Missing and Abducted Children (ZARRA). The Agency will be headed by a Director-General to be appointed by the Prime Minister. The Agency will be essentially coordinating with other agencies like police to bring about the desired results. It will measure the problem of missing and abducted children by maintaining a database and by using the helpline, i.e. 1099. It is expected to work closely with the National Commission on the Rights of the Child (NCRC), established under the National Commission on the Right of the Child Act, 2017.

3. Complementary Nature of the Law

The draft law is not a stand-alone legislation; it is complementing another law styled as the Islamabad Capital Territory Child Protection Act, 2018. The supervision of the work of the ZARRA has been vested in the Advisory Board constituted under the ICT Child Protection Act, 2018.

4. Police and ZARRA

The draft law devotes as many as three provisions underscoring the importance of policing function in child-related cases.

First, the local police are duty-bound to inform every case of missing child or abduction to ZARRA. They are required to do so by filling in a prescribed form;

Second, the local police are required to keep providing latest status of the case to ZARRA;

Third, the omission on the part of police officers to record a report (First Information Report) has been criminalized and has been held punishable under the law. 

5. Enhancement of Punishments

The draft law proposes to enhance punishments related to the offences of kidnapping and abduction of children. The harsher punishments have been done by inserting new offences instead of amending the extant offences.

Analysis

The law is not the first and the last legislation on the rights of the children in the country. There are already more than a dozen laws on the statute book that claim to protect the rights of the children. The obligation of the state of Pakistan under international law, especially the Convention on the Rights of Children and other human rights-related instruments, also fortify the responsibility to protect the children. The problem, however, is that despite robust legislation, no separate resources are dedicated. For instance, in the draft legislation, the onus has been put on the police to report the matter without taking into account the legal duties in other statutes. Likewise, the difference of abduction and kidnapping, long kept in the jurisprudence, has been confounded without repealing the offences contained in Pakistan Penal Code. The laws related to children have often remained unimplemented. For example, the Juvenile Justice System Act, 2018, and the ICT Child Protection Act, 2018, have not been made fully functional. The police are the coercive arm of the law, and besides criminal law, there must be solutions within the social continuum that may be used to help and protect children, which have not been fully developed. Criminalizing police duties has been the trend in most of the latest pieces of legislation without stocktaking the reasons for non-performance of the duties by police. For example, the law has almost diminished the difference between missing and kidnapping of children by treating both in the same manner. The approach needs careful examination as there are many a case where the children run out of the houses and teenage boys and girls elope, and declaring such acts as crimes might have unintended consequences. Anyhow, on the preventive side, the law may contribute by making police more responsive to such complaints in future.

The author is an independent researcher

and has done his BCL from the University of Oxford. Email: kamranadilpsp@gmail.com