June 19, 2013 | 09:11 AM (BD Time)
19 June, 2013 Wednesday
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Comprehensive children justice system in Bangladesh
Justice M Imman Ali:
The most important aspect of a 'justice system for children' is our realisation that children have rights equal to all other (adult) human beings and maybe a few more in addition, which only they enjoy. It is only relatively recently that justice givers across the globe recognised the relationship between the child and the law. The end of the 19th century saw the renaissance of child rights as an entity in itself; courts began to recognise that children's rights need to be protected. In the beginning of the 20th century separate laws and courts began to develop specifically with the protection of children and their rights in focus. This country first had the benefit of the Bengal Children Act, 1922. Since the early years of our independence, we have the Children Act, 1974, which is an all embracing statute beneficial to children and was promulgated as a direct manifestation of Article 28(4), in Part III [Fundamental Rights] of the Constitution, which allows discriminatory laws to be made in favour of certain citizens, including children. The Act covers the rights of children in different aspects of their lives and their well being, including when they are neglected, victimised or are alleged to have committed any criminal offence. For a brief history, reference may be made to State Vs Md. Roushan Mondal, 59 DLR 72.
In the last hundred years many international instruments have been formulated by the United Nations, some dealing with child rights in part and some exclusively dealing with children. Most notable among these is the Convention on the Rights of the Child (CRC) which was adopted in 1989 and has been ratified by 193 countries of the world, all apart from USA and Somalia. In the preamble of the CRC we find reference to the United Nations Declaration of the Rights of the Child, 1959, which indicated, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth." It is with this view in mind that several other international instruments have been formulated by the United Nations, including the Beijing Rules, Riyadh Guidelines, Havana Rules, and Tokyo Rules. These instruments provide guidelines as to how children should be dealt with when they come into contact with the law, either as offenders, being in need of care and protection, victims or witnesses. Equally important is the fact that numerous organisations, many under the auspices of the United Nations, have endeavoured over the years to bring to meaningful fruition to the aims and goals of those international instruments, and in particular to ensure that the provisions of the instruments are incorporated into domestic laws thereby ensuring the rights of children within every country. In this respect, the Courts have also been active, as may be seen from the decisions of our High Court Division.
By now it is universally recognised that children are a vulnerable group, being physically weaker and mentally immature, whose interests are needed to be protected.
Now let us consider the present children justice system in the context of Bangladesh where about 45% of the 160 millions population comprises children and 56% of these children live below the poverty line of $1 per day disposable income. The Children Act 1974 was a unique piece of legislation drafted with a vision to cater for different categories of children, but being 36 years old it is in need of updating in line with the CRC.
Plight of children
The problem faced by children throughout the world is that they are small in size and treated by adults in a demeaning manner. We would not hesitate to lift our arm to strike a child, whereas we would think twice before considering a blow on someone our own size, and certainly we would avoid any altercation with a heavyweight. Consciously or unconsciously we discriminate in our behaviour towards our own children as compared with other children. Children of the rich and mighty are viewed with some degree of respect, whereas the marginalised children are viewed with distrust and disdain. We are always more caring towards our own off-spring, and not so towards the beggars, street children and those who strive long hours in our homes (domestic child workers).
Over the years it has been realised that children are children, not small adults. They are to be nurtured and guided. There is a notion that because of their tender years children do not have full control over their impetuous actions nor the mental maturity to realise the consequences of their conduct. Unlike adults they are unable to weigh up the pros and cons and are susceptible to act impulsively without considering the gravity of their decision or the likely end result. Hence it is incumbent upon those who deal with children to protect them in all respects. If children deviate from the norms as perceived by society in general, or if they become hapless due to family circumstances, or if they become victims of crimes perpetrated upon them, then it becomes their inalienable right to get protection and succour by every means so that they can return to normalcy.
In spite of the efforts of many, including the High Court Division, very little has been done in Bangladesh to incorporate the provisions of the CRC into the domestic law, even after twenty years have elapsed. The new Children Act, 2010 is now in the process of being placed before Parliament. It remains to be seen whether the new law will result in the implementation of all the beneficial provisions of the CRC.
PROBLEMS FACED: Poverty Trap Denial of Education
1. Parents cannot afford to send their children to school, which causes illiteracy and limits the children's potential to improve the family's income and future well-being.
2. Children are required to work, which negates their ability to acquire education, which would lead to better job and earning prospects.
3. Lack of education means less choice in employment, thus leading children into hazardous and exploitative work, including bonded labour and servitude.
4. Uneducated parents do not value the need for education and think only of the immediate need for family survival. Inevitably the cycle of illiteracy is put in motion.
Thus free education promised by the government becomes illusory.
Quality of Life
1. Poor income of the parents results in malnourished, diseased and challenged children, who then become a burden on the family.
2. In an attempt to ameliorate their financial condition, parents resort to sending children away from home to work. Many end up trafficked to distant parts of the country and sometimes abroad into situations of exploitative labour/prostitution. Some never return.
3. Inability to provide food and shelter and instability in the home leads to parents forcing girls into early marriage and causes boys, in particular to leave home.
4. Children become classified as vagrants, which is essentially a 'status offence' and therefore contrary to the Constitution.
5. The young girl forced into early marriage suffers from lack of education and faces the burden of bringing up a family for which she is ill-equipped physically and mentally. This often leads to breakup of the marriage and consequent destitution of another family with children growing up in abject squalor.
6. Children from broken/disrupted families become 'street-children'. They become vulnerable and open to seduction and exploitation by criminal gangs. They end up being pick-pockets, petty thieves and graduate to serious and persistent offenders.
7. The quality of life leads to further marginalisation leading to despondency, addiction to drugs leading to the vicious cycle of crime.
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