File photo of one of the victims of the Kasur scandal. Arif Ali—AFP
Justice Mohsin Akhtar Kayani of the Islamabad High Court has penned a laudable judgment aimed at protecting the rights of children across Pakistan
On Jan. 23, 2022, the Islamabad High Court ordered the federal government to amend the Prevention of Electronic Crimes Act, 2016 (PECA) to increase the punishment for child pornography from the current seven to 20 years in jail.
The court upheld the sentence of Shehzad Khaliq, who was given 14 years in jail and ordered to pay a fine of Rs. 1 million by a lower court for recording children in compromising positions, but noted that the punishment mandated under law was insufficient. Apart from the seven years’ imprisonment for child pornography under PECA, the Pakistan Penal Code allows for up to 14 years’ imprisonment for the offense.
It is laudable that Justice Mohsin Akhtar Kayani of the Islamabad High Court has stepped forward to sound the needed alarm about a crime that is gradually taking hold of major cities across Pakistan. He should be praised for recommending that Pakistan’s laws against child pornography be brought in line with international standards, with his 24-page judgment noting that “the victim child should not be produced in court with the accused and the statement should be recorded through a video link.” He also calls for all proceedings in such cases to be held in camera.
Law against infernal photography
The case that compelled the judge to pull up the legal procedures relating to child pornography dates back to Aug. 25, 2019, underlining the years of suffering faced by the victimized family. Around 22,800 photos and 839 videos were recovered from convict Shehzad’s mobile phone. According to the Federal Investigation Agency, dozens of cases against child pornography were registered in the past year, with the majority on the basis of information received from the United States, which is apparently a major market for this evil commerce.
In 2016, Pakistan criminalized child pornography, making the offense punishable with seven years in prison and a fine of Rs. 0.7 million. The new amendment, Criminal Law (Amendment) Bill 2015, also criminalized child trafficking within the country. The initiative came after the country was rocked by a major pedophilia scandal in August 2015, when it was revealed that hundreds of pornographic videos of children from Hussain Khanwala village in Punjab province had been recorded and circulated online. Cases were registered in Gujranwala and Faisalabad, too.
Violation of the child
The proliferation of child pornography in Pakistan is especially troubling considering the state already restricts access to any adult content under several legal provisions. A ban on internet websites containing pornographic material has been in place since November 2011, with all major pornography websites inaccessible in the country.
In 2016, it was reported that the Government of Pakistan ordered Internet Service Providers to block more than 400,000 websites containing pornographic content. Three years later, around 800,000 additional websites containing pornographic content were banned by the Pakistan Telecommunication Authority on the order of the government.
In July 2019, Human Rights Minister Shirin Mazari said that Pakistan was ranked as the country with the largest number of child-pornography viewers. Addressing the launch of the Child Protection Campaign in Islamabad, she said the menace affected all strata of society. She explained that incidents of child abuse were increasing and that Pakistan was No. 1 in terms of child pornography, adding that it was shameful that “we call ourselves Muslims.” She suggested that a campaign should be launched at the school level to sensitize students to the menace.
Victimizing for pleasure
In a TV appearance in 2019, the FIA’s cyber-crime wing chief said that child pornography is now a business. “Those involved in the crime are linked to international child pornography rings. In July 2019, around 2,384 websites containing child pornographic content were blocked by the PTA,” he added. Similarly, PTA Chairman Aamir Azim Bajwa stated that Pakistan was in touch with Interpol to ban obscene material related to children. He said that authorities did not find any evidence to suggest that these materials were being uploaded in Pakistan, adding that people here were viewing such content through virtual proxy networks. The chairman further stated that PTA had blocked around 11,000 proxies and was working on methods to supervise VPN.
In the United States, one of the major markets for Pakistan’s child-abusers, the first federal law banning for-profit production and distribution of child pornography was the Protection of Children against Sexual Exploitation Act of 1977. In response, a U.S. Supreme Court decision allowed the prohibition of child pornography even if it did not meet the obscenity standards established in the three-prong test. Congress passed the Child Protection Act of 1984; broadening the definition of child pornography and criminalizing all kinds of child pornography trafficking. The 1986 Meese Report found child pornography was a cause of serious harm. This led to the passage of the Child Sexual Abuse and Pornography Act of 1986, which increased penalties for repeat offenders.
Similar increases of penalty are now being recommended by Justice Kayani.
Laudable advice
In his ruling upholding the sentence of Khaliq, Justice Kayani wrote: “In such a scenario, this Court is convinced that the learned Trial Court has properly appreciated the evidence and rightly awarded the sentence of 14 years to the appellant with a fine of Rs. 1 million in terms of Section 292-C PPC, and five years in terms of Section 292-A PPC, though this Court is of the view that the sentences should run consecutively with other offenses in such type of cases due to its severity and effect on public at large, especially the vulnerable segment of society minors, as well as while considering the gravity of crime on the principles laid down in earlier cases.”
There were further measures of appropriate conduct introduced by the Court: “It is also important to notice that there is no need to call the victims of child pornographic offense or victim of sexual offenses to the Court if the evidence is based upon video, I.T. Data, mobile data, or any information system, etc, and the same are available on record and confirmed by the Forensic Science Agency unless compelling circumstances emerge to the satisfaction of the trial Court, in exceptional circumstances only.” For already-traumatized children forced to travel to courts and face down their abusers, this is a much-needed initiative that is long overdue.
The neglected Pakistani child
Pakistan established the National Commission for Child Welfare and Development (NCCWD) on Dec. 16, 1979 through a parliamentary resolution. In 1991, under the then Ministry of Health and Social Welfare, it became an advisory body to the Government of Pakistan on matters related to children. After the Ministry of Social Welfare and Special Education was devolved to provincial governments, the NCCWD was transferred to the Capital Administration & Development Division to function in the federal capital. In 2011, it was placed with the Ministry of Human Rights with the approval of the prime minster. Now, it is working under the ambit of the Ministry of Human Rights.
The NCCWD must take account of how Pakistan behaves towards children, especially those living in conditions of poverty and vulnerable to elements that their poor parents cannot defend against. Most of the harm is done to them through child labor when the child is away from home and in the care of a master whose behavior is not under observation. When a child is given in servitude there is no contract and, in some cases, no emolument and no protection against heat and cold. In Pakistan, many parents even behave irresponsibly towards their own children by denying them lifesaving polio drops to ensure their health. A Pakistani child grows up under very hostile conditions. The IHC judgement is a step toward making their lives a bit more secure.