The idea of corporal punishment being a justified means to discipline children is well embedded within common disciplinary practices in our country.
According to a survey conducted by Bangladesh Legal Aid and Services Trust (BLAST) in collaboration with Save the Children International (SCI), an astounding 67% of parents support the use of physical punishment in school as a disciplinary method, and 79% confessed to beating their children at home.
In a more recent report, it was stated that 82.3% of Bangladeshi children below 14 have suffered either psychological or physical punishment.
The social acceptance and normalisation of corporal punishments blur our basic understanding of child abuse. It creates a sense of justification within the perpetrator and also the victim. It leads them to believe that the abuse has a greater disciplinary purpose, making the act to be justified, and non-deplorable.
Such social comprehension makes it difficult to morally police the act itself, thereby creating a gap for the government to intervene with framed legislation, criminalising, and penalising the acts of child abuse.
Legislations that challenge social norms and redefine grey areas need to have clarity and unambiguity in order to avoid confusion. In the last three decades, Bangladesh has made considerable efforts to build its legal foundation to deal with child abuse.
The legal position
Bangladesh, being a signatory to the UN Convention on the Rights of the Child, has enacted the Children Act, 2013. With the aim to curb child abuse and degrading treatment towards the children, this Act criminalises all forms of corporal punishment imposed on the children.
It further provides a maximum punishment of five years of imprisonment and/or fine that may extend up to Tk1 lac. The legal definition of children has also been changed from a person being under the age of 14 to 18 years old. It was a praise-worthy legislative effort to ensure that no child is subjected to torture and inhuman or degrading treatment.
However, the legislation failed to completely eradicate corporal punishments within domestic and institutional levels. Arguably, perpetrators may still escape liability for dispensing corporal punishments at home, alternative care settings, daycare, correctional institutions, etc.
Article 89 of the Penal Code 1860 provides a defence to the guardian or person having lawful authority for harming children under the age of 12 for the child's own benefit, when done so either in good faith, by consent, or when having an unsound mind.
This defence reinforces the ideas behind justifying corporal punishments. Inevitably, it creates a contradictory legal position between the statutes, limiting the development and also creating confusion within the law.
The Supreme Court of Bangladesh has tried to bring clarity to this matter. Their lordships in Writ Petition No. 5684 of 2010 held that dispensing corporal punishments at home, schools, and institutions are to be made unlawful and further stated that Article 89 of the Penal Code 1860 is only relevant to medical actions on children and not to corporal punishments in general.
Nonetheless, this ratio has not yet been given any legislative status to expressly abolish or repeal this defence. It is important to mention that in other jurisdictions with comparable Penal Code provisions, this article is still in force and interpreted as to provide the same defence.
Therefore, the defences under Article 89 should be abolished or declared to be obsolete. The abolition of Article 89 is long overdue and this defence of "justifiable assault" needs to be removed.
The harmful effect of corporal punishment
Psychologists have suggested that the benefits of corporal punishment outweigh any potential hazards and have concluded that corporal punishment is ineffective at best and harmful at worst.
It has been found that there is a link between corporal punishments and the development of negative traits in children, such as bullying, criminal activity, and domestic violence.
Physical punishment may also lead to severe emotional scarring that has an immense repercussion, such as anxiety disorder, depression, suicidal tendencies, drug abuse, alcohol dependency, lower self-esteem, and even becoming emotionally unstable.
It is imperative for Bangladesh to recognise these effects on an institutional level since the UN's Convention of Children Rights' primary purpose was to prevent such harmful effects on the children. The Children Act, 2013 will then not be limited to judicial application but will also influence public policy and depart from the status quo on public perception.
The awareness that corporal punishment is illegal in Bangladesh is very limited. Socially, this matter is still not seen as a serious threat to the children, let alone being widely stigmatised and condemned.
The consensus approach of enacting laws to prohibit such punishments will only have widespread effect when they will be regularly enforced. Legislation in itself does not guarantee deterrence unless it is coupled with active enforcement and similarly supported with constructive reforms.
The true effect of the Children Act, 2013 may only be seen when the enforcement agencies and the judiciary will manifestly rely on the law and develop the practice of using it as a tool to curb child abuse. Besides legal enforcement, social activism in making people aware of corporal punishment's cause and effect is also crucial in shaping public perception in general.
Alternatives to corporal punishment
There are many safe disciplinary methods that parents can use to help guide their children. The most significant method is to establish an open, honest way of communicating with children from a young age, so they become emotionally intelligent.
This enables children to communicate their emotions more positively and directly, which helps them build a strong healthy relationship and overcome challenging obstacles in their lives.
Making children aware of the consequences of their bad behaviours can also help, as it then becomes easier for them to understand why learning self-control is essential.
If children do not act cooperatively, inform them that they will have to give up something. However, do not take away something that is an essential need for them like food.
Giving children a time-out when misbehaving is a good practice, that way you give the child time to calm down and to reflect on their actions.
Rewarding positive actions can help manage the misbehaviour as well because it takes away the attention on the negative conduct and emphasizes the positive attribute. When parents are being attentive and praising children for good actions, it encourages them to behave positively.
Sadia Afroz Meem is a Barrister-at-Law from Lincoln's Inn.
Fahreen Sultan Labonno is a student at the University of London.
Arafat Reza is a journalist.
Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions and views of The Business Standard.