|Volume 5 Issue 12| December 2011|
ZAHEDUL I KHAN
Rights and Protection of Our Children: Where Do We Stand?
A boy of the age of 12, injured in the blast of a hand-bomb in the classroom in a school in the capital has been formally charged by the police as his fellows told that they saw the boy with a hand-bomb-like plastic container. The police termed the boy as 'oporadhi' in the charge-sheet and claimed that there was no bar to call him so under the law. The question is whether the boy is an 'oporadhi' ('criminal' or 'offender'?), or a victim? On another occasion, a boy, 14 years of age at the time of arrest, was awarded the death penalty in July 2001 by a Tribunal for the offence of raping and murdering a girl. All of his appeals were unsuccessful, with the Appellate Division on February 23, 2005 refusing to review its earlier appellate order. In order to save the life of the boy, Bangladesh Legal Aid and Services Trust (BLAST) challenged the law under which the several courts awarded and maintained the death penalty. The High Court Division declared unconstitutional the provision of mandatory death penalty under a special statute of 1995 but upheld the punishment reasoning that, while exercising its constitutional jurisdiction it could not 'adjudicate' upon "the punishment awarded by the competent Court” (BLAST v. Bangladesh (2010) 30 BLD (HCD) 194). One may ask -- have the child's human rights been protected? Or, can a child be given the death penalty under a special law not providing for mandatory death penalty?
Nonetheless, many would have a sense of complacence that the state of children's human rights is not too worrying, compared to the alarming rate of violence and discrimination against women or the breach of human rights of those forcibly disappeared or killed in cross-fire. The failings in the protection of our children are, however, condemnable at any rate. Children in Bangladesh are often exploited not only by strangers (e.g., the employer/trafficker), but their rights are breached by the establishment, legal-judicial systems, and, surprisingly, even by members of the family. Recent reports have shown, for example, that school children in many areas are routinely subjected to serious corporal punishment such as whipping in flagrant breach of the constitutional ban of torture and degrading punishment. Many children are also reportedly trafficked out of the country or pushed into the brothels or maimed or crippled for the purpose of begging within the country. Every year, many children, girls and boys alike, become victims of commercial and non-commercial sexual exploitation or abuses, sometimes at the hands of close relatives.
A great number of children are entrapped within the net of labour. Some are employed in severely hazardous work for very little wages or without any payment. The state of rights of children who work as domestic workers is no less bleak. The unfortunate children whom we mockingly call 'street children' are deprived of the very basic amenities -- food, education, homes -- and do live virtually a sub-human life in a state of utter non-freedom. When it comes to the case of female children, they are more vulnerable to discrimination, exploitation and violence.
By adopting the Constitution with an entrenched bill of rights enforceable through the court as back as 1972, we often claim to stay ahead of others including the global community in protecting the children's human rights. There is no denying this progressive mindedness, but we now lag behind many others in protecting the children, "the future" of our nation. Both the Constitution of Bangladesh and the country's premier child rights statute, the Children Act 1974, date back to the UN Convention on the Rights of the Child 1989 (CRC), the Magna Carta for children. The CRC ushered in a new justice-based approach to children and provided for a legal regime for their protection and development. The CRC provides that every state which is a party there to has a duty to "undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized". Duty of state parties with regard to economic, social and cultural rights is to undertake such measures to the maximum extent of their available resources. Bangladesh ratified this nearly universal Convention in 1990, but has not yet incorporated the Convention-provisions into its domestic legal system.
The Constitution's fundamental rights are largely in line with the CRC-provisions but it lacks a clear recognition of the children's rights to be protected and treated with dignity for their over-all development. It also does not obligate the state to guarantee social, economic and cultural rights of the children. This is not to deny the state's role in implementing the free education scheme for children up to a certain age. The Act of 1974, although it is underpinned by the principle of the best interest of children which is the foundational norm of the CRC, contains many provisions that are incompatible with the CRC, demeaning the human dignity and worth of children. One notable example is the provisions allowing the victimised, destitute and homeless children as well as other children needing special care to be committed to 'certified institutes' which are the virtual prisons. In a similar vein, the newly passed Vagrants and Shelter-less People (Rehabilitation) Act 2011 encourages and allows the detention in 'shelter homes' of street/homeless children or children found in begging. Belying the objective of rehabilitation as the title portrays, the new statute does not really provide for the rehabilitation of children needing care. These provisions are in no way protective of children but rather may expose them to abuse.
The Act of 1974 provides for a number of rights-enhancive provisions, prohibiting the death penalty and imprisonment for life to children. It provides for separate trial of the children coming in conflict with the law and other protective provisions for children both in conflict and in contact with the law. Shortly, it sought to introduce a rights-based approach in the juvenile justice system. However, there exists a gap between the norms in statute and the level of protection the children receive. Despite legal prohibition and earlier court actions, for example, many children are still incarcerated in prisons and that too is alongside the adult criminals -- some of them being detained in the name of 'safe custody'. As seen above, the courts still pronounce death penalty for children despite the legal ban, while the Jail Code allows restraining of prisoners including children with bar fetters (danda bery). (A court held in 2007 that putting prisoners under bar fetters is not unconstitutional: ASK v Bangladesh (2007) 15 BLT (HCD) 48). Some laws such as the Whipping Act 1909 and the Code of Criminal Procedure categorically legitimise the canning of 'uncontrollable' children or 'juvenile offenders', in clear breach of not only the international human rights standards but also the Constitution of Bangladesh. Also, children's right of dignity, privacy, and reputation is rarely honoured by concerned actors. For example, the media often publish the names and details of both victimised children and children in conflict with the penal law.
Other statutes, most of them being of colonial origin, concerning or bearing upon children seek to protect the children. However, the real-life experience of children, as mentioned, is quite different. Despite the laws and policies regulating child labour, a significant number of children (around 6 million as per recent reports) are employed in industries, factories, shops and other risky occupations. While we accept the reality that child labour cannot be outlawed through the law alone, let alone overnight, it is undeniable that working children need to be protected and those who are in extremely worst labour should be withdrawn and alternatively rehabilitated.
On the whole, the legal system, however, is deficient in protecting our children. In some areas, the laws are discriminatory and fall far behind the international norms. The Constitution, although it provides for the legal template for the protection of children without using the term 'children' therein, lacks a positive duty for affirmative state actions for the amelioration of lives of children. Rights of the children with disability or of aboriginal children are not adequately addressed and protected. Although the principle of best interest of children supposedly underlies the legal regime concerning children, many statutes either do not promote or are in clear negation of the children's interest and welfare. As the first two examples shown at the outset show, the criminal justice processes provide the most spectacular example of children's best interest being neglected. Sometimes child victims become re-victimised and suffer from the ills of the system, and the existing system provides hardly any remedy against legal abuses by state agencies. Also, the existing laws do not have in place a system of proper care, maintenance and upbringing of children. Similarly, some of traditional customary practices and rules under personal laws, such as that of parental maintenance duty, also fall behind the globally agreed standards.
A Child is not a smaller version of an adult, but rather an independent legal personality. That the law treats children differently than adults is mainly for the sake of their development. It is not a matter of kindness for the state or society to do something for the 'welfare' of the children. Modern legal regimes are not only based on the principle of welfare of children, they also enact individual and state responsibility vis-à-vis them. Lives and interest of children should have 'first call' on society's concerns, and it has been society's duty to protect the children from any harm, insecurity, under-development and injustice. Appropriate legal interventions are needed to adequately protect the children. Clearly, there are many rooms for improvement in the country's legal regime. Particularly, the CRC has to be fully internalised in Bangladesh with an entrenched guarantee of the children's right to be protected and cared and to be entitled to social and economic development.
Needless to say, law is not the only solution; it is part of a package of efforts -- legal, social, administrative, ethical, financial/economic and cultural. The culture of negligence and ignorance to children must be done away with and an integrated approach to the child's development should be in place. There is an urgent need to make every one aware of his or her legal and moral duty in promoting and protecting the rights of children. In children lies our common future. As the children from around the globe made it clear in a presentation to the UN in 2002, the children is also our "present". We are duty-bound to build a world fit for the children, in which they will be able to realise their self-dignity, estimation and fuller development.
Dr. Ridwanul Hoque is an associate professor of law at the University of Dhaka.
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