Prohibiting all corporal punishment in schools: Global Report 2011

Understanding prohibitionEffectively prohibiting corporal punishment in schools, as in other settings, means ensuring legislation states clearly thatcorporal punishment is unlawful and that the law does not include any provisions which authorise, or could be construed asallowing, any form of violence in the name of discipline or correction. Ministerial advice, policies and guidance may state thatcorporal punishment should not be used but they do not amount to prohibition and ultimately cannot be enforced; they arevirtually meaningless when the law itself provides for corporal punishment or includes legal defences for the use of force byparents and others. The only way prohibition is achieved is through lawreform.In some states there have been high-level court rulings againstcorporal punishment in schools. They are not sufficient in themselves toprohibit corporal punishment – there is always the possibility that futurerulings will reach different conclusions – but they can play a significant rolein moving towards law reform to enact explicit prohibition. The issuingof a high-level court judgment against corporal punishment provides astrong opportunity to promote changes in legislation, and sometimes thejudgments themselves require law reform. Significant rulings concerningcorporal punishment in schools have been made by high-level courts inBangladesh (2011), Nepal (2005), Canada (2004), Fiji (2002), South Africa(2000), India (2000) and Namibia (1991). For further information, seewww.endcorporalpunishment.org.Key elements of law reform to prohibit corporalpunishment in schools• Repeal all legal defences for the use of corporal punishment by teachersand others responsible for the care and education of children. Whenlegal provisions which confirm a right or duty to inflict “reasonablechastisement” or to use “reasonable” force for purposes of “correction”,etc are removed from legislation the criminal law on assault appliesequally to any assault on a child, including by teachers.• Repeal all laws or regulations authorising corporal punishment inschools and other education settings.• Enact explicit prohibition of corporal punishment and other cruelor degrading punishment in legislation applicable to all educationsettings – state-run and private schools, full- and part-time educationprovision, faith-based education, preparatory/nursery schools,primary schools, secondary schools, military schools, etc.• Ensure prohibition covers all forms of corporal punishment andother cruel or degrading punishment (see Committee on the Rightsof the Child definition, page 5). In some states, corporal punishmentin schools is considered synonymous with a particular form ofpunishment (such as caning in Malaysia, or paddling in the US) but“The details of some of the incidents[that we have considered] have stirredour conscience and left us feelingdistraught at the thought of parentsallowing their children to be beatenand teachers mercilessly beatingtheir pupils for small indiscretions….There cannot be any doubt thatcorporal punishment is detrimentalto children’s well-being and hasserious physical, psychological andemotional effects, as well as causingtruancy and dropping out of school.This in turn exacerbates the cycle ofilliteracy and poverty…. Article 28 ofthe Convention [on the Rights of theChild] is relevant to the issue beforeus and we have no hesitation to holdthat in the light of the Conventioncorporal punishment upon thechildren must be prohibited in allsettings including schools, homesand work places.”Bangladesh Supreme Court, Writ Petition No.5684, 2011research shows children are subjected to a wide range of assaults by teachers (see page 7). Prohibition must also cover noncontactphysical punishments (punitive physical exercises, forced positions, etc).• When provisions allowing protective restraint of students by teachers in exceptional circumstances are considered necessary,ensure they strictly limit the use of force and cannot be construed as justification for punitive/disciplinary assaults onchildren.No opportunity to achieve prohibition of corporal punishment in schools should be missed – for example, if other legislationaffecting the education system is being changed then prohibition of corporal punishment should be included in the reform. Buthuman rights require that children are protected from corporal punishment in all settings of their lives, including the homeand family. This is an immediate obligation and efforts to achieve prohibition in schools should be made alongside promotionof prohibition in the home and other settings.Laws which prohibit – and those which do notLaws prohibiting corporal punishment in schoolsTeaching methods and discipline in educationalinstitutions shall respect the rights and guarantees ofchildren and young persons and shall exclude all formsof abuse, ill-treatment and disrespect, and, accordingly,any form of cruel, inhuman or degrading punishment.Educational institutions are:1. Prohibited from using corporal punishment;2. Prohibited from using psychological punishments thatoffend the dignity of children and young persons.(Ecuador, Childhood and Adolescence Code 2003,articles 40 and 41)Children and adolescents have a right to receivecounselling, education, care and discipline from theirmother, father or tutor, as well as from their caretakersor the personnel from educational and health centres,shelters, youth detention or any other type of centres,that in no way represents an authorisation of any sortto these parties for the use of corporal punishment ordegrading treatment….(Costa Rica, Code on Children and Adolescents1998 amended 2008, article 24bis)1. No person may administer corporal punishment at aschool to a learner;2. Any person who contravenes subsection (1) is guiltyof an offence and liable on conviction to a sentencewhich could be imposed for assault.(South Africa, Schools Act 1996, article 10)Laws allowing corporal punishment in schools1. No person shall subject a child to torture or other cruel,inhuman or degrading treatment or punishment.2. No person shall subject a child to correction which isunreasonable in kind or in degree relative to the age,physical and mental condition of the child and which,if the child by reason of tender age or otherwise isincapable of understanding the purpose and fairnessthereof.3. The provisions of this section shall not be construedas prohibiting the corporal punishment of children insuch circumstances or manner as may be set out inthis Act or any other law….(Botswana, Children’s Act 2009, article 61)1. In the enforcement of discipline in public schools,assisted private schools and private schools degradingor injurious punishment shall not be administered.2. Corporal punishment may be administered where noother punishment is considered suitable or effective,and only by the principal, deputy principal or anyteacher appointed in writing by the principal for thatpurpose, in a manner which is in conformity with theguidelines issued in writing by the Chief EducationOfficer.3. Whenever corporal punishment is administeredan entry shall be made in a punishment book thatshall be kept in each school for such purpose with astatement of the nature and extent of the punishmentand the reasons for administering it.4. A person other than those mentioned in subsection (2)who administers corporal punishment to a child onthe school premises is guilty of an offence and liableon summary conviction to a fine of one thousanddollars.(Dominica, Education Act 1997, article 49)1. If any person who has attained the age of fifteenyears and has the custody, charge or care of any childor young person under that age, wilfully assaults,ill-treats, neglects, abandons, or exposes him, orcauses or procures him to be assaulted, ill-treated,neglected, abandoned, or exposed in a manner likelyto cause him unnecessary suffering or injury to health(including injury to or loss of sight, or hearing, or limbor organ of the body, and any mental derangement),that person shall be guilty of a misdemeanour, andshall be liable to imprisonment for five years…4. Nothing in this section shall be construed as affectingthe right of any parent, teacher, or other person,having the lawful control of a child or young personto administer reasonable punishment to him.(Solomon Islands, Penal Code 1963, article 233)Laws protecting from violence but not prohibitingcorporal punishmentIn many states, laws protect children in schools fromviolence and abuse, or state that relations between pupilsand teachers should be based on mutual respect or thatchildren’s honour and dignity should be respected, butthey do not explicitly prohibit all corporal punishment(see table on page 10). Sometimes these provisions existalongside legal defences for the use of “reasonable”punishment/correction of children. These defences mustbe repealed. In other states, laws explicitly prohibit onlycorporal punishment which causes harm or injury. As theCommittee on the Rights of the Child underlines, the lawmust be clear that all corporal punishment is prohibited,however light (see page 5).12 Prohibiting all corporal punishment in schools: a global reportGlobal Initiative to End All Corporal Punishment of Children13