“Children never stop needing their mommies; children never stop needing their daddies”. The child is father of an adult. The child is an abridged adult with rights which cannot be abridged. The Child is a person for all practical purposes. The child observes, thinks and imitates or reacts to happenings around. The child is a person. Either at home or school, the child is subjected to disciplinary practices while, child should be part of those processes. If the indiscipline of the child could be complained, ascertained and responded to, then where is the way to find and establish the indiscipline of the adults? The discipline is not taught, it is learnt. The text books give information. The communication through teaching is imparting education. To attain wisdom, an abundant amount of common sense has to be added to education, which then includes discipline. Discipline is an attitude, character, responsibility or commitment. The discipline is basically internal, while the attempt to impose it would be an external process. One has to internalize the process of education and discipline. Discipline and education go together in letter and spirit1.
The Child’s education is mostly from observation and imitation. Their participation depends upon their developing capacity, which again depends upon the surroundings and family. Information is a prelude of participation. If child does not have sufficient information he cannot effectively participate. Such participation should be meaningful. One has to talk in terms of chances rather than rights as the child does not and cannot know how to participate2.
1 The Convention on the Rights of the Child, 1989.
2 Shahdeen Malik, The Children Act, 1974: A Critical Commentary, 1st ed. (Dhaka: Save the children UK, 2004), p. 73
Without participation the discipline within him will not develop. Right to drive, he may have. But a chance to drive, he may not get. It may be like giving a discourse in driving without putting him in driver’s seat. The main purpose of the thesis is to furnish a true and specific feature of the scenario of children rights in different countries. The study examines the situations and the problem of child rights and try to redress from this situation by implementation of a legal enforcement mechanism which shall be analyzed on the basis on how much of these measures have been effective in preventing the children rights relating problems in our local arena. The main aims and objects of this study are to collect the comprehensive, reliable and descriptive information about the situation of the violation of the children rights and the protective organs and their activities also. We can realize that the protection of child rights in different countries to raised awareness on this matter and to motivate the community against it. We can also identify the laws, policies and programs of the different organizations that are worked in connectivity with protection and care of the violation of children rights in all over the world3.
GENERAL CONCEPT :
Definition of Child:
Law makes a distinction between a child and an adult. This distinction is based primarily on the age of the child and the purpose of a particular law. Thus a person is child who is under 16 years of age (The Children Act 1974)4. The Majority Act of 1875 describes a person to be a child below 18 years5. According to Vagrancy Act 1943 a person below the age of 14 is a child6. The Bengal Children Act 1922 (repealed) defined a child as a person who is below 14 years. In India the Orphanages and other Charitable Homes (Supervision and Control) Act 1960 gives a definition of a child. For this law child means a boy or girl who has not completed the age of 18 years. Again a child is differently described in the Children Act 1960 in India. According to this act a child means a boy who has not attained the age of 16 and a girl who has not attained the age of 18 years. In defining child in addition to age, gender is also taken into consideration7. According to the Child Marriage Restraint Act 1929 a child is a person below the age of 21 in the case of a male while it is 18 for a female8. Under Muslim law a child obtains majority when he attains puberty. A child is assumed to have attained puberty on the completion of 15 years9. According to Hindu law, now in existence in Bangladesh a child attains majority after the completion of 15 years. The most agreed upon definition of a child based on age can be found in the United Nations Convention on the Rights of Children 1989.10
4 The Children Act, 1974.
5The Majority Act, 1875.
6 The Vagrancy Act, 1943.
7 The Indian Children Act, 1960.
8 The Child Marriage Restraint Act, 1929. S.2(a)
9 A.A.A Fyzee, Outlines of Mohammadam Law, 4th ed. (Oxford University Press, 2005) p.153
10 United Nation Convention on the rights of Children, 1989.
All persons below the age of 18 are unequivocally designated as children in this U.N. Convention of Children which is a ‘Magna Carta’ for the children.
Categories of Child:
Children are categorized in different ways in law. A victimized child is one against whom an offence has been committed. When parents or guardians cannot control a child he is known as an uncontrollable child. There is also a category of child who is referred to as youthful offender i.e., child under 16 years of age found guilty of an offence. The neglected and destitute children are other categories found in children’s laws. The meaning of neglect is culture specific. However the neglect is the failure to exercise the care that the circumstances justly demand. It embraces willful as well as unintentional disregard of duty. It is not a term of fixed and measured meaning. It takes its context always from specific circumstances and its meaning varies as the Context surrounding circumstances change. The reference to destitute child along with neglect is not much seen in child welfare Laws11. It is found in the Children Act, 1974 in Bangladesh. It may merely mean a child having no fixed abode, no resource to survive, no one to maintain and lacks supervision by responsible persons or authorities. The terms ‘child abuse’ hardly occur in Bangladesh laws relating to children. The concept is latent in the laws relating to children. The rights of abused child are yet to be recognized in Bangladesh laws in precise terms because its nature and meaning is hardly known to the people12. Most of the families raise a number of children whom they cannot support properly. However in social policy literature the concept of child abuse is found. It consists of treatment that is harmful to the health and safety of the child. An abandoned child is a child who is deserted, unclaimed or born out of wedlock13 .
11 Scott Elisabeth, The Legal Construction of Childhood, University of Virginia School of Law Research project, working paper No. 00-18, 2000, p. 15.
12 Dr. Borhan Uddin Khan and Muhammad Mahbubur Rahman, Protection of Children in Conflict with the Law in Bangladesh, 1st ed. (Dhaka: Save the children UK, 2008), p. 78.
CHILDREN’S RIGHTS IN BANGLADESH:
Children’s rights and Laws in Bangladesh:
Children have rights as members of society. This has been recognized by international community in recent times. As a signatory to U.N. Declaration on the Rights of the Child in 1990, there is an upsurge of awareness of rights of children in Bangladesh that has been reflected in its laws and social programs.
In Bangladesh, it has been observed, that state action through legislation concerning children has been evolved from protection oriented to right oriented laws. At present laws embodying social policy towards children embrace many aspects of their lives. These laws in turn mirror society’s views on children14.
Social Attitude towards Children:
Children’s social status has changed overtime. Noticeable Osophical and legal points of view regarding them found currency in times. The traditional view regards parents as a natural proctor of their children. Parents were considered to act in the interest child. Children have little rights of their own. The protective holds that society has regulatory and interceptive role to protect children in situations where parental care is inadequate. State’s protective role with children found its origin in the English common law doctrine of parens patriae. This doctrine authorized English courts to see the guardianship of minors in property. The English courts gradually enlarged its jurisdiction in other areas of children’s interest coming in conflict with the law15.
14 Abdul Halim, Constitution, Constitutional Law & Politics Bangladesh Perspective, 3rd ed. (Dhaka: CCB Foundation 2006), p. 53.
15 Children and minor Delinquents: 39 (199), British Joarnal of Criminology, 240, at p.241.
Thus Juvenile Courts emerged in the protective role of children leading to a separate judicial mechanism in the criminal justice system. This view regards that children have independent legal rights and does not rely on parents or guardians or the state to act in their interest. Again there appears another view that emphasized stronger role for parents in caring children. It is described as a nontraditional view. It showed the resurgence of neo-traditional thinking challenging the desirability of state’s protective role and children’s rights movement. At present there is a view that children have rights of their own against authorities and parents that has found international acceptance. The idea of state protection of children combined with children’s right appears to be a proper description of the social policy towards children in Bangladesh16.
Children’s right to care and protection:
The rights of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral, and social development” 171n our country the family attends to care and protection of the children. In the extended family, the duties and responsibilities of parents are shared by other members of the family. The well-being and welfare of the children is a matter of general concern. The child gets love, affection, security and sense of belonging in the framework of the family. While the extended family systems are still prevalent in rural areas to some extent, it is weakening and disintegrating in urban areas and even in rural areas under the pressure of changes. Everything needed by the child could be provided by the family or the local community which was integrated. But with urbanization, industrialization, progress in communication, changes in the economic, political and educational arenas, the families as well as the community became unable in respect of resources, knowledge and experience to give all that a child needs for proper growth and development. Life has become more complex and strains on the family have become more severe today18. The family is surrendering many of its child-rearing functions to other institution.__________
17 Convention on the Rights of the Child, 1989, Art. 27.
18 The Daily Star (1st March, 2010).
It is the birth right of a child to be born to parents who love and care for him, to live with his family in a home that protects him and provides for his growth and development. Parents have also the right and responsibility to provide care, protection arid guidance to children. Family plays the key role in sharing the environment in such a way that the child utilizes all the available opportunities for realizing his latent potentialities through guidance, regulation, selection and inhibition. It is the family which protects him from the outside evil by manipulating the environment. The family feeds the child, provides him with shelter, clothes, and schooling. Home is the child’s first school. There is no substitute for the child’s own house. So, institutional care is not a substitute but is desirable only in the absence of home and normal family. Institutional care is prescribed for children who are deprived of normal home care because of divorce, death of parents, desertion or extreme cruelty. The main objective of the orphanage is to give educative treatment for development of healthy personality and adjustment. It offers a setting which combines social control, protection, reeducation and rehabilitation. It is to be remembered that the orphan has come to this institution not by choice, but under compulsion. But he needs to have a feeling of belonging, love, affection and acceptance. The service of an institution has to be developed in the lights of the needs of the children19.
The care and protection of the destitute children in orphanages dates back the great holocaust of this country the Bengal famine of 1943 which necessitated the passage of Orphanages and Widow’s Homes Act, 1944. The Act was a reflection of the social situation that prevailed during the post famine period. The Act was enacted for the purpose of supervision and control of the functions of the Orphanages, widow’s home and marriage bureaus that came into existence following that famine. The necessity for bringing this Act into existence was expressed in the words of a distinguished Woman member of then Bengal Legislative Assembly: “For some time there had been some public agitation regarding traffic in destitute women and girls as a result of the famine.___
19 Forum, a monthly publication of The daily Star, October 2009, vol. 3.
There are in existence a good number of institutions which carry on clandestine traffic in women and girls. They manage to evade detection as their nefarious activities are conducted under the cover of institutions so camouflaged as to give an appearance of social and philanthropic establishment”20.
According to this Act no person can open or carry on an orphanage, a widows’ home or marriage bureau without license. An orphanage, under this Act, refers to an institution where orphans are kept or intended to be kept and an orphan designates a boy or girl less than 18 years of age who has lost his or her father or has been abandoned by his or her parents or guardians. The District Magistrate (Deputy Commissioner) on an application in a prescribed form may grant a license for the opening of 01 carrying on an orphanage21.
Right to health care:
“The rights of the children are to enjoy of the highest standard of health”22 . Child health is the mirror of the health status of a nation. One can easily see the health status of a country through the child health of that country. In fact our child health status is almost similar to that of other developing countries of South Asia, Overpopulation, poverty, illiteracy; unemployment and superstition of the people are creating obstacles in the way to achieve desirable child health status of our country. A significant percentage survived with residual morbidity but we had no facilities for continuing care. There was obviously a need to take the health services nearer to the people and away from the teaching and general hospitals, whose atmosphere tended to alienate ordinary citizens.
Bangladesh is an overpopulated country with about 52 percent of the population below 16 years of age and about 18 percent bellow 5 years. Most of our child population grows up in the midst of the scourges mentioned in the beginning of this chapter. Under-S mortality constitutes about half of all deaths in the country23.
20 Orphanage and Widow’s Homes Act, 1944.
22 Convention on the Rights of the Child, 1989, Art. 24.
23 Dr. Borhan Uddin Khan and Muhammad Mahbubur Rahman, ibid, p. 63
The important causes of neonatal mortality are birth asphyxia, birth trauma, low birth weight, neonatal tetanus and neonatal septicemia. The neonatal mortality accounts for 60 percent of deaths in infancy. Most of the delivery is conducted by traditional dais. About 30-50 percent of newborn babies is low birth weight reflecting poor maternal nutrition and heath care status of the country. In fact, low birth weight is the best indicator of malnutrition. Birth weight below 2.5 kg. are found to be closely associated with poverty not only during infancy but also throughout childhood. It -indicates that the infant was malnourished in the mother’s womb or the mother was malnourished during her own infancy. Furthermore, analysis of data sets collected through the Nutritional Surveillance Programme (NSP) reveals new dimensions in gender disparity. The same assertions could also be made with regard to the child health status of Bangladesh. In Bangladesh child malnutrition, morbidity and mortality can be attributed to unsafe water, poor sanitation and unhygienic conditions24.
According to Article 24 of the convention on the Rights of the child, state parties recognize the right of the child to the enjoyment of the highest standard of heath and to facilitate the treatment of illness and rehabilitation of health25. The Article emphasizes that state parties shall pursue full implementation of this right and in particular shall take appropriate measures, among others, to combat disease and malnutrition including the framework of primary health care, and to ensure that all segments of society, in particular parents and children, have access to education and are supported in the use of knowledge or child health and nutrition, the advantages of breast feeding, hygiene and environmental sanitation and the prevention of accidents26.
Children’s rights to be literate:
Right of the child to education27 the provision of basic education for the children has been a major concern for this country.
24 Ibid, p. 78
25 Convention on the Rights of the Child, 1989, Art. 24.
The progress and prosperity of a nation rests first and foremost upon a literate manpower. Unless the intrinsic potentialities and capabilities of a literate manpower are employed the country can not develop socio-economically A literate people are an economic capital to the entire nation but if they remain unlettered, they become a sheer liability. That is the reason why Mahatma Gandhi considered mass illiteracy as a national shame and advocated for its complete eradication on war footing. So in order to build a better Bangladesh the primary task must be to build its huge human resource base through improving children’s education and literacy skills.
In view of the national importance of literacy, we have given weight age to the development of primary education in our constitution as one of the fundamental principles of state policy (Article 17)28. It has been stated in the Constitution that the state shall adopt effective measures for the purpose of establishing a uniform, mass-oriented and universal system of education and extending free and compulsory education to all children irrespective of caste, creed and religion to such stage as may be determined by law, relating education to the needs of society and providing properly trained and motivated citizens to serve those needs and removing illiteracy within such time as may be determined by law.
A parent often gains the impression that the child, over a period of one or more years, seems to be learning nothing. That is the stage when a less motivated parent accepts withdrawal. Scant teacher attention, more reprimands than encouragement, lack of learning material and original recreation and poor physical facilities may be considered as push factors in dropout. On the other hand, if the schooling was good and parents discover that the child is learning to read and pick up interesting things, many of the parents would be prepared to undergo further sacrifices (including work adjustment) to retain him there. According to Article 28 of the Convention on the Right of the Child, state parties, in recognition of the right of the child to be literate29,
28 Abdul Halim, ibid, p. 153.
29 Convention on the Rights of the Child, 1989
have agreed to provide at least all available facilities of free and compulsory basic elementary education to all children irrespective of caste, creed and religion and to remove illiteracy ‘from their societies. The UNICEF’s ‘First Call’ for children designates the child’s right to be literate as development rights which includes the right to education, play and leisure, cultural activities as well as access to information, and freedom of thought, conscience and religion. It is also provided in our constitution in Article 27 and 2830 .
Rights of the child labor:
Child labour is in fact a reality of our time. They work for their own survival and also for offering assistance to their families that are kind to be living in abject poverty. The issues relating to child labour have socio-economic causes that are by and large identical in all developing countries. Child labour is a tragic and silent emergency of our time. Like many other problems, child labour emerged out of the socio-economic conditions prevailing in our country. The low per capita income keeps the heads of families under stress. In such a situation parents in poor families normally avoid sending their children to schools. Instead, they engage them in different works in the home-based or in family farms. Most children (with their mothers) have always worked. Children in rural areas who worked usually did so on family land where fathers were small farmers or sharecroppers or where they came from artisan families, at family looms and potters wheels and so on. It was a hard life but at least it was in the context of a settled home environment. But with a rapidly growing population and increasing landlessness, the situation is changing for the worse18. To the extent that families are being pushed off their land the situation of their children will deteriorate unless alternatives can be found31.Reports released in late 1996 by UNICEF and the International Labor Organization (ILO) draw attention to child prostitution as “one of the most intolerable forms of child labor31. In its most extreme manifestation,
30 The Constitution of People’s Republic of Bangladesh, 1972.
31 Dr. Khaleda Salahuddin, Child Labour in Bangladesh, 2nd ed. (Dhaka: Palok Publisher & Bangladesh Women Writers Association, 2001), p. 253.
children are forced into sexual work through the practice of debt bondage, wherein a. young girl’s labor in a brothel is promised by an impoverished family for an unspecified amount of time in exchange for cash or credit. While the arrangement is allegedly intended to last only until the debt is paid, repayment is frequently impossible, given the typically limited earning potential of debtors and the illicit and often deceptive practices of lenders (such as excessively high interest rates and additional charges and fines for work-related expenses).32
The country is one of the poorest in the world with more than 50 percent of its population may be considered absolute poor. Because of rural poverty, landlessness, unemployment, natural calamities and lack of job opportunities a large number of rural poor continue to migrate to urban areas leading to the creation of slums in cities and shanty towns, among one-fourth to one-half of the urban population live in inhuman conditions. Many of them live in overcrowded areas with ill-repaired and neglected structures having little or no service facilities. Many live on pavements. In Dhaka city there were 2525 slums and squatter settlements and many residents of these slums either use authorized or unauthorized electric connections, get supply of water from municipal tapes and their toilet facilities are unhygienic33.
Where children are inducted to activities that are not only exploitative and illegal but also are of criminal nature, Prostitution is obviously in this category. Also in a different category are those types of work which are not suited to children. Employers of these types of work manipulate the market of underage children to maximize profit paying them substantially less than would be paid an adult worker and gain a cheap, biddable, easily replaceable labor force. Of course strategies and policies to deal with these types of exploitation have marginal impact on the elimination of poverty which is a contributory factor to increasing vulnerability of poor children who are more likely to be abducted or kidnapped or sold into prostitution by desperate parents.
Handicapped children and their rights:
Disabled persons “have the same fundamental rights as their fellow citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and full as possible”34 . The problems of the handicapped children and persons have not been properly understood. There are social and psychological problems of the handicapped children and their understanding would help in providing necessary help and assistance in protecting their rights. A handicapped child is just like’ other normal children, except that he suffers from a particular handicap. He is capable of performing all the necessary functions which a normal child is expected to do. If not properly taken care of, trained and rehabilitated in order to earn his independent living, a handicapped child would grow up as a handicapped person and continue to remain a burden on the society. They have always been a subject of pity and have been living on others charity. Therefore, the society has to help the handicapped child to develop his latent potentialities so that he can grow up as independent self-earning individual and can live with respect and dignity like other normal human beings. It is now recognized that a handicapped child has a right to live and enjoy life like other human beings. The international community has enacted a series of instruments and human rights declaration to protect their right to life and living. The main international instruments addressing the disabled are The Universal Declaration of Human Rights (1948), The International Covenant on Economic, Social and Cultural Rights and on the Civil and Political Rights (1966), the Declaration on the Rights of the Mentally Retarded Persons (1971), the Declaration of Rights of the Disabled Persons (1975), and The Principles for Protection of Persons with Mental Illness and for The Improvement of Mental Health Care (1991). ‘Disabled persons shall enjoy all the rights set forth in this Declaration. These rights shall be granted to all disabled persons without any exception and without distinction or discrimination on the basis of race, color, sex, language, religion, political or other opinions, national or social origin, state of health, 35
birth or any other situation applying either to the disabled person himself or to his or her family. Disabled persons “have the same fundamental rights as their fellow citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and lull as possible36”. “They are entitled to measures designed to enable them to become self reliant as possible”37. “They have the right, according to their capabilities to secure and retain employment or to engage in a useful, productive and remunerative occupation and to join trade unions”38. “Disabled persons shall be: protected against all-exploitation, all regulations and all treatments of a discriminatory, abusive or degrading nature39.
“A person is blind who cannot count the fingers of a hand held up at a yard’s distance”. He is unable to perform any work for which eyesight is essential. Totally blind are those who cannot count fmgers from a distance of one foot and partially blind, oh the other hand, cannot do the same counting by stretching their hands out. Because of lack of proper medical facilities in the country the incidence of blindness is not controlled. Advanced countries have a system of registration of all their blind persons. We need also to develop similar system.
A blind person does not need pity. What he needs is understanding and encouragement so that it is possible to live as nonnal a life as possible. With the advent of Braille system, it is possible to give them some education. In the western countries a blind person is able to earn as much as a sighted person in certain avocations with needed training. There are today 3 kinds of institutions working for the blind: (i) residential education, (ii) day-schools and (iii) integrated schools. While some people believe in the institutionalization of a blind child away from the family, a second school believes that blind child should remain in the family 1 A third group advocates the efficacy of integrated schools.
36 Ibid, Art. 3.
37 Ibid, Art. 5.
38 Ibid, Art. 7.
39 Ibid, Art. 10.
The blind child should study along with sighted children with arrangement of special coaching teacher knowing Braille. Moreover, the nursery education for the blind child should also receive due consideration as it will prepare him to adjust himself to his handicap before he attains school-age. At this stage he should be given love and affection, opportunities for learning by doing, freedom to manipulate objectives, freedom to move about and to ask question, thereby a healthy relationship develops between the blind child and his parents. The second age-group for the purpose of educating the blind child may be from 6 to 12 years when he should be able to sufficiently ‘master Braille and the subjects may include physical training, nature study, cooking for girls, history, geography, simple crafts, hobbies, southing, etc. In the third stage the blind child should be given systematic education. From 16 onwards the child should be classified on the basis of his performances in studies, his aptitude and ability. Others could be given training in certain vocations for sheltered employment or for employment in the open employment opportunities40.
Deaf and Dumb Children:
Deafness is severe handicap, although it is not. Visible. The deaf are those in whom the sense of hearing is non-functional for the ordinary purposes of life. The deaf do not develop speech and are called dumb. The causes of deafness are
(i) otitis media
(ii) acute infectious diseases
(iii) septic tonsils
(v) Chronic Rhinitis
(vii) eruptive fever
(viii) Congenital syphilis
(ix) High fever
40 M. Shawkat Alam, ‘Protection of Children Rights: National and Global Approach” Dhaka University Studies Part-F Journal of Law, Vol. 7. No. 1 (June 1996).
(xi) Whooping cough.
Deafness is of three kinds:
(i) When a child is born deaf,
(ii) When he becomes deaf at an early age when there are possibilities of training and
(iii) When he becomes deaf in later years when remedial, measures are not very effective. The Education Act of 1944 made it obligatory for the local authority to provide education to the deaf children. We should remember the fact that education and training of deaf children should start at a very early age so that it is possible to train child’s organs not only to take care of family but that he may be able to use the instructions properly. A high degree of excellence is required in the school for the deaf. The deaf can do almost all types of jobs except those where use of hearing and speaking is required. They can be trained in such trades as cane-work, carpentry, weaving, tailoring, wood curving, clay modeling, dyeing, printing etc. Sheltered workshop for the deaf could be started preferably independent of schools. A deaf child is
not accepted by his family, community and the employer. A social work agency has not only to change the attitude of the people towards the deaf but also to choose certain operations in industry, trades and handicrafts which the deaf can do without much difficulty41.
The crippled are those who have orthopedic disabilities that affect the upper and
lower limbs, bone joints and muscles. Some neurological cases are also classified as cerebral palsy or spastic cases. It has been observed all over the world that the crippled can lead normal lives if they are given proper education and training. So our attitude towards the crippled has to change. In olden days the crippled had no right to live. Rehabilitation services began to develop for war-veterans in many countries after the Second World War. Increasingly free primary education is being made available to all children. The aim is to give the crippled child every facility to approach normalcy and to be segregated as little as possible. Crippled children need recreation like a normal child. Recreation can be used as a therapy. Therefore, recreation should be purposeful and organized under the guidance of recreation therapist. The crippled need not live on charity but he can be trained for certain jobs whereby he can earn his livelihood. Training in a particular vocation or craft is necessary for a handicapped. It is, therefore, possible to make a useless person into a happy citizen and it needs imagination, enthusiasm and interest in the rehabilitation of the crippled.
Mentally Retarded Children:
Mental retardation means incomplete mental development. A mentally retarded child is not able to learn as much as other children. He is unable to use his judgment. Mental retardation is of different type’s idiocy, imbecilic, feeble- mindedness and moral defectiveness. It can occur before birth, after birth and during childhood.
In our country the family and the community looked at the handicapped with pity and they have been living on others’ charity. It is now recognized that with suitable education and training, the handicapped can begin to lead almost normal lives independently. The International Community has also enacted a number of declarations as regards the rights of the handicapped to live and enjoy normal lives. A few national voluntary organizations and their district branches are doing commendable jobs in educating, training and rehabilitating the blind42,
deaf and dumb, crippled and mentally retarded children and helping them lead as normal and independent lives as possible.
Rights of the children in conflict with and in mortal danger:
The term ‘social defense’ has come into wider usage because ‘social defense’ measures are being increasingly used in all societies to protect themselves from social evils arising out of individuals who come in conflict with law. There are two areas of operation of the social defense programmes the first being the apprehension of individuals who come in conflict with law and the second areas of social defense is concerned with correction and reformation of such individuals. Thus social problems such as juvenile delinquency’, immoral trafficking of women and children’ unmarried mothers and adult offenders are covered under the broad term ‘social defense. As a result of development of social sciences and social research, the scope of social defense has been widened and intensified now. The emphasis today is not on punishment but on correction and rehabilitation. Instead of merely punishing a delinquent, efforts are made to first find out the reasons for his committing acts of delinquency by studying and understanding the individual in his environment. Efforts are undertaken to understand the environments which are responsible for bringing individuals in conflict with law and society43.
43 Sheik Hafizur Rahman Karzon, Theoretical and Applied Criminology, 1st ed. (Dhaka: Palal Prokashoni, 2008), p. 221.
CAUSES AND VIOLATION OF CHILDREN’S RIGHTS IN BANGLADESH :
Lack of awareness about child rights among adults and children:
Although children are very welcome in our personal and family life, most adult do not have adequate knowledge about the rights of the children. As a result, in most cases, adults, behavior towards children is not always supportive of the welfare and overall development of the children. Children are also unable to protest against the violation of their rights as they are not full empowered to do the same.
Adults negative attitude towards children:
Adults do not usually see children as responsible opinionated human beings. Rather they consider children as fully dependent on others. It is easy for adults to forget the potential that children a have and their special needs as children.
Lack of proper implementation of the laws relating to children:
The children of Bangladesh seem to be lucky in the sense that a special law for them, the Children Act, was enacted in 1974 which was quite early in comparison with the emergence of the UNCRC in 1990. The Children Act 1974 provides almost all necessary rules and regulation in order to protect the rights of the children of Bangladesh. However, it is really unfortunate that all those things are yet to be fully materialised. There is a strong link between violence against children and proper implementation of the laws that are supposed to protect their of the children. It has been observed that in most cases, the perpetrators easily escape the judicial procedure. As most of the child victims belong to the poor section of the society, they cannot afford the cost (in terms of time and money) of the long process of justice.
Non-aviliability of children’s own organisations:
There is no strong and effective children’s organisation, especially in the rural areas, through which children could mobilise themselves in order to protest against violent activities. The is also a lack of coordination among the existing children’s organisations.
Juvenile Justice Act, 2000:
Juvenile Justice Act, 2000 provides punishment for cruelty to juvenile or child. Whoever, having the actual charge of or control over, a juvenile or the child, assaults, abandons, exposes or willfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessarily mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both44. This section has no exceptions to exempt parents or teachers. Though it is intended to punish cruelty by those in authority, it equally applies to parents and teachers also. The whole purpose of the Juvenile Justice Act 2000 is to translate the objectives and rights enshrined in Convention on Child Rights which include separation of juveniles in conflict with law from ordinary judicial proceedings to avoid corporal punishment.
Juvenile Justice Act of India and Bangladesh Children’s Act 1974 created an offence of cruelty to children, which covers parents and guardians and teachers also. Juvenile Justice Act does not authorize corporate punishment including whipping, while Bangladesh Act permitted whipping male child offender45.
45 Gazi Shamsur Rahman, Law Relating to Children in Bangladesh, 2nd ed. (Dhaka: Bangladesh Shishu Academy, 1994).
According to the Bangladesh Penal Code of 1860 a child below seven years of age is presumed to be innocent, because he cannot be deemed to be guilty of criminal offence. The Penal Code categorically states, “Nothing is an offence which is done by a child under seven years of age (sec. 82). The same Code further provides that if a child between seven and twelve commits an offence without attaining maturity to understand and judge the consequences of his action, he cannot be found guilty46. In the UN Convention on the Rights of The Child (1989) a child is defined as a person under the age of 18, unless national laws determine an earlier age of majority. In the Bangladesh Children Act, 1974 a boy or girl below the age of sixteen is defined as a child. A boy or girl under sixteen years of age indulging in any unlawful acts will be considered as youthful offenders under the Children Act (1974) and necessary steps will be taken against him or her in accordance with the provisions of this Act47. The juvenile delinquents are identified by observing the abnormal behavior, nonadaptive personality, dissatisfied life, frustrated feeling, hostile attitude towards the norms of group life, antagonistic habit of breaking existing laws, etc. In our country juvenile delinquency is generally associated with theft, murder, pick- pocketing, fraud, truancy, fighting, sexual offence, etc. They are found to indulge in street fighting on the street corners, at the cinema halls and recreation centre, insulting the passerby and teasing the policemen, crowding at cross-roads and loitering, gazing at girls, teasing them by uttering filthy words, absenting themselves from home till late at night, rush driving of motor cycles and violating traffic rules and other abnormal behaviors. The problem of juvenile delinquency may be due to a number of socio-economic conditions: negligence by parents and depriving children of parental care, love and protection; inability to meet the minimum basic needs; family conflicts and the evil influences’ of family environment; economic deprivation or affluence; bad companionship; lack of recreational facilities for the juveniles; lack of proper educational environment in educational institutions;
46 Md. Altaf Hosen, Penal Code, 7th ed. (Dhaka:City Law Books, 2007).
47 The Children’s Act, 1974.
affluence of obscene literature; increase in urban centre and slums; political and social instability; erosion of religious values; lack of proper supervision; defective socialization; etc.
Trafficking in women and children is a contemporaot form of slavery and is a grave violation of human rights. It is an international Problem connected to political, socio-economic and gender inequalities.
Almost all primitive and modern people seem to have used some method of modifying drug even if it was alcohol or opium. The use of dependence producing drug in most countries has a long traditional and social moorings31. Modern world may very well be termed drug age or drug culture since the majority of young people use some kind of stimulant, drug, tranquillizer or other chemical substances to be able to confront the vicissitudes of modern life48. Drug abusers are found today in almost all cultures of the world. In fact, drug addiction has emerged as an international problem. This problem has produced health hazards and a formidable social scourge. For a long time its use or abuse was limited to affluent countries of the west but it has made its way into the developing world affecting all levels of society. Two reasons have been advanced behind the pervasive prevalence of drug; (i) radical expansion of the field of chemistry and chemical technology and (ii) improved communication has rendered its easy smuggling all over the globe.
Drug abuse is now not limited to the cities only, it has also infiltrated the rural areas. Drug use was once thought to be connected with remedy of diseases but at present it has emerged as a fatal threat to the psycho-physiological integrity of human beings leading to its addiction by thousands of Bangladesh young people with whom Indian hemp (ganja) has become popular. During mid-eighties a powerful interlocking substance known as heroin has engulfed the young generation all over the country on a scale undreamt of a few decades ago.
48 The Daily Star, (1st March, 2010)
This was possible primarily because Bangladesh is being used as a mute of drug smugglers49.
The concept of social defense is assuming significance now-a-days because it advocates the protection of the rights of the juvenile delinquents and the trafficked children by emphasizing correction and rehabilitation rather than punishment.
49Frorum, a monthly publication of The Daily Star, October 2009, vol. 3.
INTERNATIONAL LAW REGARDING CHILDREN:
Meaning of the Convention on the Rights of the Children:
The Convention on the Rights of the Child is an international treaty that recognizes the human rights of children, defined as persons up to the age of 18 years. In 41 substantive articles, it establishes in international law that States Parties must ensure that all children – without discrimination in any form – benefit from special protection measures and assistance; have access to services such as education and health care; can develop their personalities, abilities and talents to the fullest potential; grow up in an environment of happiness, love and understanding; and are informed about and participate in, achieving their rights in an accessible and active manner50 .
Protection of rights by the convention:
The implementation of the Human Rights Act 1998, interest in the concept of children’s rights has grown significantly since the first edition of this work was published. Now in its second edition, Children’s Rights and the Developing Law explores the way developing law and policy in England and Wales are simultaneously promoting and undermining the rights of children. It reflects on the extent to which these developments take account of children’s interests, using a range of current research on children’s needs as a template against which to assess their value. A critical approach is maintained throughout the work,
50 Convention on the Child Rights, 1989.
particularly when assessing the extent to which the concept of children’s rights is being developed by the domestic courts and the degree to which the UK is complying with its obligations to implement the UN Convention on the Rights of the Child. Wide reaching in its scope, the work starts with the theoretical perspectives of the concept of children’s rights and the extent to which international activity in the field of human rights can be utilized to inform domestic law51.
UNICEF and the Convention:
The Secretary-General of the United Nations has called for the mainstreaming of human rights in all areas of UN operations – for example, the Office of the United Nations High Commissioner for Refugees (UNHCR) in its mandate for refugee children, or the International Labor Organization (ILO) in its commitment to eliminate child labor. In the case of UNICEF, the Convention has become more than just a reference, but a systematic guide to the work of the organization. As expressed in its Mission Statement, UNICEF is mandated to “advocate for the protection of children’s rights” and it “strives to establish children’s rights as enduring ethical principles and international standards of behavior towards children.” UNICEF promotes the principles and provisions of the Convention and the mainstreaming of children’s rights in a systematic manner, in its advocacy, programming, monitoring and evaluation activities. The Convention on the Rights of the Child provides UNICEF with guidance as to the areas to be assessed and addressed, and it is a tool against which UNICEF measures the progress achieved in those areas. Integrating a human rights approach in all UNICEF’s work is an ongoing learning process that includes broadening the framework for UNICEF’s development agenda. In addition to maintaining a focus on child survival and development, UNICEF must consider the situation of all children, better analyze the economic and social environment, develop partnerships to strengthen the response (including the participation of children
51 UNICEF project of Advocacy [www. gogle.com, accessed on 5th March, 2010]
themselves), and support interventions on the basis of nondiscrimination and act in the best interests of the child.
Convention on the Rights of the Child and the Committee on the Rights of the Child encourage government to undertake steps.
Through its reviews of country reports, the Committee urges all levels of government to use the Convention as a guide in policy-making and implementation to:
i. Develop a comprehensive national agenda for children.
ii. Develop permanent bodies or mechanisms to promote coordination, monitoring and evaluation of activities throughout all sectors of
iii. Ensure that all legislation is fully compatible with the Convention.
iv. Make children visible in policy development processes throughout government by introducing child impact assessments.
v. Carry out adequate budget analysis to determine the portion of public funds spent on children and to ensure that these resources are being used effectively.
vi. Ensure that sufficient data are collected and used to improve the plight of all children in each jurisdiction.
vii. Raise awareness and disseminate information on the Convention by providing training to all those involved in government policy-making and working with or for children.
viii. Involve civil society – including children themselves – in the process of implementing and raising awareness of child rights.
ix. Set up independent statutory offices – ombudspersons, commissions and other institutions – to promote children’s rights.
UNICEF assists governments in promoting children’s rights in country program.
UNICEF’s work involves advocacy, cooperation and technical assistance.
UNICEF undertakes advocacy through publications, awareness campaigns and participation in major international conferences and in public statements – and works with those responsible for the development and implementation of legislation and public policy. UNICEF cooperates with both donor governments and governments in the developing world. UNICEF-assisted programmers seek to ensure the social and economic rights of children by delivering essential services such as health and education and improving access to good nutrition and to care. UNICEF also focuses attention on national budget spending, encouraging governments to allocate 20 per cent of budgets to basic services. Further, UNICEF supports efforts to redress inequitable practices and discrimination, which are direct and underlying causes of children’s and women’s deprivation. UNICEF cooperates with other international organizations – particularly those within the UN system, as the United Nations Development Assistance Framework (UNDAF) process illustrates – and international financial institutions. UNICEF works to build partnerships with civil society organizations, involving children, families and other members of communities. UNICEF provides technical support and assistance to the Committee on the Rights of the Child. UNICEF focuses on sustainable results and encourages ongoing monitoring and evaluation of programmers52.
52 CRC Committee on the Rights of the Children, 2005.
UN AND DIFFERENT ORGANIZATION
Role of NGOs and UN:
Firstly, the rights of children, as elaborated in the UN Convention on the Rights of the Child, will also be followed. It has been mentioned in the beginning that the voluntary organizations occupy a unique position in the social-cultural fabric of our society. Philanthropic approaches related to our religious beliefs might have played a major part in bringing these organizations into existence. The motive to help and assist distressed neighbors can be said to be inherent in the belief of the people. Furthermore, the Holy Quran enjoins upon the adherents of Islam the sacred responsibility of providing comfort to those in distress. From this point of view, voluntary organizations can be considered as the natural outgrowth of the people’s altruistic motive to do some good to helpless ones and as such they are never imposed from above by anybody. So the efforts of these organizations can be termed as unostentatious attempt to meet any welfare need. Many such organizations have been in existence for years and providing some welfare services even on a limited scale without any financial or technical assistance from either the government or from any outside agency53 .
Secondly, many of these organizations have been functioning ostensibly to serve any client group without knowing that they are also protecting their human rights. The proliferation of the ideas and concepts of human rights make it possible for these voluntary organizations to visualize today that by taking care
53 Development perspectives on Juvenile Justice, Chicago, 2000.
and protection of the educational, health and other specialized needs of the different categories of the needy people in society, they are at the same time protecting their human rights as well54.
The study would, therefore, try to identify those local level voluntary organizations which are specifically devoting their resources to protecting the different rights of the children as enshrined in the Convention on the Rights of the child and other relevant international covenants and declarations. The study sought to:
a) Identify the types of voluntary organizations which are employing efforts and resources to protect the different rights of the children at the grassroots;
b) Analyze the role of the identified voluntary organizations in the following areas of their operations: care and protection of the chiding in distress; serving the health and educational rights of the children; exploitation of the child laborer and the protection of their rights; care, protection and rehabilitation of the socially, physically and mentally handicapped children; and care, protection and rehabilitation of the juvenile delinquents and the drug addicts;
(c) Analyze the content of the various activities and services related to the protection of human rights of the above mentioned vulnerable groups of children;
(d) Find out the weaknesses in their areas of operations and suggest effective and pragmatic measures of overcoming them;
(e) Explore the possibility of how to effectively utilize these voluntary organizations to defend human rights of children.
Finally, the nature of the exploratory study necessitated the preparation of an elaborate interview-cum-observation guide and all relevant areas related to the protection of children’s human rights had to be incorporated in the guide. The guide contained open-ended questions so that unexplored information and clues could be recorded. All the items in the interview-cum-observation guide were thoroughly discussed with the investigators in several sessions in order to help them understand each item unambiguously.
After the initial orientation of the investigators, who were all social science master degree holders, was done, the interview-cum-observation guide was pretested. On the basis of the experiences gained in the pretesting, some of the items in the guide were modified and a few items added to make the guide comprehensive. As the information to be collected through the guide were considered vital for the study, the research directors took all possible steps to provide on the spot guidance and field supervision during the data collection phase55 .
Most of the scholars from different spheres some times say that children are the miniature of the adults. But in fact this cant be possible because every child doesn’t follow exactly his or her parents with same knowledge and reputation. So in civil society, it’s a duty of the people to save and nurture child rights. If this is ensured in the world then no child will be deprived from flourishing themselves with the light of education.
Protection of rights by voluntary organization in Bangladesh:
A voluntary organization is to be registered under the above mentioned Ordinance of 1961 with either the Department of Social Services under the Ministry of Social Welfare or the Department of Women’s and Children’s Affairs. These organizations are recognized under the law to submit the accounts of their funds and annual activities. The delinquent voluntary organizations can be prosecuted on the basis of written complaints of the Department of Social Services. It may be mentioned here that the authors of the 1961 Ordinance failed to visualize any foreign donations to these voluntary organizations from abroad primarily to regulate the receipts and expenditure of foreign donations for the voluntary activities in the country. A number of organizations are working in the prevention of blindness, treatment of the blind and the rehabilitation of the blind children. Societies like the Assistance for Blind Children, National Federation of the blind, etc.,
are functioning for the training and rehabilitation of the blind adults and children. A few voluntary organizations are working for the vocational training of the blind. Bangladesh Deaf and Dumb Association have been running deaf and dumb schools throughout the country. Bangladesh Society for the Mentally Retarded Children has been treating and training mentally retarded children. A few organizations are also working for the correction and rehabilitation of the juvenile delinquents. From the above discussion it can be asserted that a good number of voluntary organizations are conducting variegated welfare programs to protect the rights and interest of our children. Bangladesh is committed to honor and implement all UN Declarations, Covenants and Conventions on human rights. Constitution seeks to ensure the protection and enforcement of all types of human rights for all categories of persons5. Similarly, Chapter two especially contains the fundamental Principles of State Policy which are meant to preserve human rights and fundamental freedoms56 .
A voluntary organization has been defined in the Voluntary Social Welfare Agencies (Registration and Control) Ordinance. 1961 as an organization, association or undertaking established by persons of their own free will for the purpose of providing welfare services in any field mentioned in the schedule of the relevant social legislation and depending for its resources on public subscription, donation or Government aid. The schedule of activities mentions as many as fifteen spheres of activities for mitigating the suffering of the different categories of needy people such as the poor and the indigent, child, youth, women, physically, socially and mentally handicapped, released prisoners, juvenile delinquents the aged, the infirm and the destitute. A child has the inherent rights to life and the State Patties shall ensure the survival and development of the child. A child shall not be separated from his or her parents against his or her will. States shall take measures to combat illegal transfer of children abroad. The child has the right to freedom of speech, thought, conscience, religion, association and peaceful assembly57.
56 The Constitution of People’s Republic of Bangladesh, 1972, Art. 26-46.
57 Voluntary Social welfare Agencies (Registration and Control) Ordinance, 1961.
The child refugee shall receive appropriate protection. A mentally or physically disabled will have the right to enjoy a decent life. State parties recognize the right of every child to a standard of life which is adequate for his or her physical, mental and social development. A child has the right to education which is directed to develop his or her personality, talent, and mental) physical abilities. A child has the right to rest and recreational activities. They have the right to be protected from economic exploitation. They shall be protected from armed conflict. Encompassing the whole range of human rights – civil, political, economic, social and cultural the Convention recognize that their enjoyment of a given right cannot be separated from the enjoyment of others. It demonstrates that the freedom a child needs to develop his or her intellectual, moral and spiritual capacities is dependent on a healthy and safe environment, access to care and minimum standards of food, clothing and shelter among other things58.
In the light of above discussion, namely actions to be taken immediately
a. Governmental commitment of fulfilling protection rights:
Government interest in, recognition of and commitment to child protection is an essential element for child protection, for example, for programmes to combat child labour. It also includes political leaders being proactive in raising protection on the agenda and acting as advocates for protection.
b. Attitudes, traditions, behaviors and practices:
In societies where attitudes or traditions facilitate abuse for example, regarding sex with minors, the appropriateness of harmful traditional practices of differences in the perceived status and value of boys and girls the environmental will not be protective. In societies where all forms of violence against children are taboo, and where the rights of children are broadly respected by custom and tradition, children are more likely to be protected.
c.Open discussion of and engagement with, child protection issues:
All the most basic level, children need to be free to speak up about child protection concerns affecting them of other children. At the national level, both media attention to and civil society engagement with child protection issue contribute child protection.
d. Legislation and enforcement:
An adequate legislative framework, its consistent implementation, accountability and a lack of impunity are essential elements of a protective environment.
e. Children’s life skill, knowledge and participation:
If children are aware of their right not be abused, of are not warned of the dangers of, for example, trafficking, they are more vulnerable to abuse. Children also need to be provided with safe and protective channels for participation and self expression. Where children have no opportunities for participation, they are more likely to become involved in crime of other dangerous or harmful activities.
f. Monitoring and reporting:
A protective environment for children requires an effective monitoring system that records the incidence and nature of child protection abuse and allows for informed and strategic responses. Such systems can be more effective where they are participatory and locally based. It is a responsibility of government to make sure that every country knows the situation of children with regard to violence, abuse and exploitation.
Every child is precious and has the inherent right to life. Everyone such as parents, care givers, government, NGO, civil society, the media and even the man on the street has the responsibility to ensure that every child survives. And they should be protected by law. Bangladesh law comply with the convention. But unfortunately, their objectives are often Unclear of weakened by partial and inexpedient implementation. For the proper implementation we need to examine our legislation systematically concerning children and the methods of their implementation. However, legislation is not the only solution although they have direct impact on the status and general welfare of children. We need to have changed outlook to the upbringing of children in the family, to create a healthier social environment.