Child Rights in Bangladesh: Scope for Legal Advocacy and BLAST's Role


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Child Rights in Bangladesh: Scope for Legal Advocacy and BLAST's Role

  1. 1. Child Rights in Bangladesh:Scope for Legal Advocacy and BLASTs RoleShihab Ahmed ShirazeeAdvocateProject Coordinator, Ending Corporal on challenging persisting violations of children’s rights:Encouraging effective advocacy in South AsiaOrganized by CRIN & BASE1st -3rd of May 2013, Kathmandu, Nepal
  2. 2. Outline1. Child Rights in the Constitution• Fundamental Rights• Fundamental Principles• Remedies2. Child Rights in Laws/ Policies3. Gaps in the Law / Non-implementation of Law4. BLAST’s Current Role5. Scope for Legal Advocacy6. Ongoing Advocacy Project on Ending CorporalPunishment
  3. 3. 1. Child Rights in the Constitution© Tawhee Reza Nur
  4. 4. 1a. Fundamental Rights• Article 27 Equality before the law and equalprotection of law for all citizens• Article 28(1) Prohibiting discrimination - groundsof sex, race, religion, caste or place of birth• Article 28(4) State may make special provisions in favourof ….children/ for advancement of anybackward section of citizens• Article 31 Treatment in accordance with law• Article 32 Right to life and personal liberty
  5. 5. 1a Fundamental Rights contd…• Article 33 No person under arrest shall be denied theright to consult and be defended by lawyer;Production before court within 24 hours ofarrest• Article 34 Prohibition of forced labour• Article 35 Right to speedy trial; prohibition on tortureand cruel, degrading and inhumantreatment
  6. 6. 1b. Fundamental Principles of State Policy-- non-justiciable, but act as a guide to the interpretation of thelawArt 15 State’s responsibility to provide citizens basicnecessities of life including food, clothing, shelter,education and medical care, the right to work, theright to reasonable rest, recreation and leisure andthe right to social security.Art 17 Establishing a system of free and compulsoryeducation
  7. 7. 1c. RemediesArt. 44/ Art. 102 Right to enforce fundamental rightsthrough writ petition before High CourtRemedies: Directions on state authorities to take action/ refrain fromaction Declarations that some order/action is without lawfulauthority Recovery from custody which is without lawful authority/in anunlawful manner Compensation (rare….)
  8. 8. 2. Child Rights in the Law© Shihab Ahmed shirazee
  9. 9. Child Rights in Laws/ Policies• Children Act 1974• Child Marriage Restraint Act 1929• The Guardians and Wards Act 1890• Dissolution of Muslim Marriages Act of 1939• The Employment of Children Act 1938• The Suppression of Immoral Traffic Act of 1933• Suppression of Violence against Women and Children Act (amended2003)• Acid Offences Prevention Act 2002• Domestic Violence (Prevention and Protection) Act 2010• Penal Code 1860• Criminal Procedure Code 1898• Probation of Offenders Ordinance 1960 (amended 1973)
  10. 10. Child Rights in LawsThe Children Act 1974 / Children Rules 1976• Aim: to protect childs best interests during all legal processes• Requires court to consider age and character of the child andother related factors before passing any orders• Provides for separate juvenile courts• Forbids joint trial of an adult and a child offender even ifoffence jointly committed.• Provides measures for the care and protection of destitute andneglected children, including cases of parental neglect, abuseor ill-treatment.•  Children Bill 2013 recently Cabinet approved (25/2/13)
  11. 11. Child Rights in LawsThe Child Marriage Restraint Act 1929 (amended in 1984)• Prohibits child marriage, sets age limit for marriage (18 forwomen, 21 for men) and imposes punishment on parents/guardians and those solemnizing child marriages.The Guardians and Wards Act 1890• Empowers a designated court to appoint a guardian of theminors person, property or both based on welfare of the minor.The Dissolution of Muslim Marriages Act 1939• Gives certain rights to a minor girl given in marriage (underMuslim law) to repudiate the marriage before attaining the ageof eighteen years, provided that the marriage has not beenconsummated.
  12. 12. Child Rights in LawsThe Employment of Children Act 1938• Prohibition of employment of children in any occupation;Punishment of those responsibleThe Suppression of Immoral Traffic Act of 1933• Punishment for forcing a girl under 18 years into prostitution, orabetment by anyone having custody or charge of the girlSuppression of Women and Children Oppression Act 2000 (amended)2003Section 6 Punishment for Child TraffickingSection 7 Punishment for Kidnapping of …Child
  13. 13. Child Rights in LawsSection 9 Punishment for RapeSection 13 Maintenance for children born through rapeSection 14 Restrictions on publishing identity of victims inmediaAcid Offences Prevention Act 2002Section 4 Punishment for Acid Violence
  14. 14. Juvenile Justice SystemPenal Code 1860• Child under 9 not responsible for actions (s82).• Child aged 9-12 years , criminally responsible subject tocourt’s to assessment of capacity to understand nature andconsequences of actions at time of the occurrence (s83)Criminal Procedure Code 1898• Court may release offenders aged under 21 if first conviction(s560)Probation of Offenders Ordinance 1960 (amended 1973)• Court may release on probation on considering age, character,physical and mental condition of offender (s4(1)
  15. 15. Recent Law and Policy Reforms/JudgmentsChildren Bill 2013 (currently under consideration)Human Trafficking Deterrence and Suppression Act 2012Domestic Violence (Prevention and Protection) Act 2010Bangladesh National Human Rights Commission (NHRC) Act2009Children Policy 1994 (revised 2011)• Articles 4.2, 4.3, 6.7 (1), (2), (3) and (4), concerning protectionof children from all kinds of violence.
  16. 16. Recent Law and Policy Reforms/JudgmentsHigh Court judgment (BLAST Corporal Punishment Case)/ LawCommission• Observations on repeal of nine existing laws that authorise theimposition of corporal punishment on children.High Court Judgment (BNWLA Case, per Imman Ali J)• Prohibition on children under 12 being domestic workersHigh Court Judgment (Suo Motu, per Imman Ali J)• Children to be imprisoned separately from adults
  17. 17. 3. Gaps in the Law/ Arbitrary Laws© Mizanur Rahman Khoka
  18. 18. Gaps in the Law /Arbitrary Laws• Contradictions / inconsistencies in the law• No comprehensive institutional measures to protect childrenfrom violence, abuse or exploitation• Provisions of Child Rights related Laws are not always consistentwith the rights outlined in the CRC– Art 2 -- Non discrimination– Art 3 -- Best Interest of Child– Art 6 -- Right to life, survival and development– Art 12 -- Respect for the views of Child
  19. 19. Gaps in the Law /Arbitrary Laws• Current laws do not comply with CRC• The age of criminal responsibility (9 instead of 12)• The possibility of imposing death penalty• Imprisonment of children in ordinary prisons• Even corporal punishment is lawful.• Lives of children governed by family customs and religiouspractice rather than law• Children are often physically tortured and abused in policecustody• Nothing is mentioned explicitly regarding their separation fromadults in pre-trial detention and police custody
  20. 20. The Reality - Lack of Application of Law• Arbitrary detention of children in ‘safe custody’• Probation and parole system for juvenile offenders are notbeing widely practiced as an alternative to imprisonment.• Lack of knowledge and awareness among responsible personsof juvenile justice system like police, judges, probation officers,lawyers, and victims of rights and duties• Poor monitoring system/ No independent monitors of juveniledetention facilities• Impunity – lack of prosecution of violence against children inpre-trial detention and police custody.
  21. 21. 4. BLAST’s Role© Mizanur Rahman Khoka
  22. 22. BLAST’s Role on Child Rights• Legal Services (Advice /Mediation/ Litigation/ Investigation)– Transfers of children in adult prisons to juvenile correction Centers– Obtain bail for children– Defend children in court•Public Interest Litigation•Advocacy
  23. 23. Successful Case Studies• Suraiya escapes a Child Mariage to pursue her education• Protecting Child domestic worker Shefali from abuse• 4 Year Old Ariful and His Grandparents released after 10 monthlong illegal detention
  24. 24. PIL Successes• Recognition of Mother as Guardian (Writ Petition No. 5343 of2009)• Challenging the imposition of the death penalty on a minor(Writ Petition No. 8283 of 2005, Shukur Ali)• Challenging the systematic failure of the Government to takeaction regarding repeated and severe incidents of corporalpunishment (Writ Petition No. 5684 of 2010)• Challenging the detention of 420 juvenile prisoners alongsideadults in different jails around Bangladesh while the threeCorrectional Homes having accommodation capacity for 700children had only 200 inmates. (Writ Petition No. 6373 of 2007)
  25. 25. BLAST’s Advocacy• Review of the National Child Rights Policy 1994 amended in2011 to ensure its conformity with the fundamental principlesof the Constitution notably through the inclusion of aprohibition on abuse and torture and provisions for renderingaccountable the people and institutions that are responsible forchildren.• Advocated for the inclusion of a prohibition on corporalpunishment in educational institutions, it has also raised beforethe High Court in the form of public interest litigation.• Active in the Domestic Workers Rights Network (DWRN)• Member of Shishu Adhikar Forum (Child Rights Forum)/Citizens’ Initiative on Domestic Violence
  26. 26. 5. Scope for Legal Advocacy© Mizanur Rahman Khoka
  27. 27. Scope for Legal Advocacy• Determination of the age of the child needs to be ensured anddefinite mechanism to be evolved for the purpose• Specific provision to be inserted in the Code of CriminalProcedure to the effect that the trial of every child should beunder the Children Act• Establishment of Juvenile Court in every district• Raise minimum age of criminal responsibility to 12 years• Set legal limits on the length of pre-trial detention of children• Place children in detention separately from adults, incl pre trialdetention• Review laws on child/early marriage and custody to ensure bestinterests of child
  28. 28. Scope for Legal Advocacy• Review and reform laws on violence against children andrelated evidence rules• Campaign for adoption of Child Right Protection Policies inschool / .. ..• Adopt policies to promote alternative measures to detention• Provide children with adequate legal assistance• Establish an independent body for the monitoring of detentionconditions• Child friendly complaint procedures• To educate and train the concerned personnel responsible forthe welfare of children in juvenile justice institutions
  29. 29. 6. Ending Corporal Punishment© Mizanur Rahman Khoka
  30. 30. Ongoing Project - Ending Corporal PunishmentContext• 14 incidents reported in press of caning, beating and chainingJan – July 2010, including suicide• Across all educational streams (madrasas, primary & secondaryschools)• Boy and girl children aged 6-14 years affected• No preventive action• No investigations/prosecutions• Total impunity• Breach of duties of state authorities (ministry and boards ofeducation, school management committees)
  31. 31. JudgmentPetitioners: BLAST and ASKRespondents: Ministries of Education/Home; Direct of Education/ 8Educational Boards/ Govt Schools/Concerned TeachersJudgment / Declaration• failure to prevent and to prosecute and punish CP = violations ofthe right to life / freedom from cruel and degrading punishmentOrders - Directives• To investigate 14 incidents• To report on whether investigations held/action taken againstthose responsible• To provide teacher training on safe and humane discipline• To disseminate information through state media• To inspect and monitor educational institutions including on CP
  32. 32. AchievementsPre-Judgment• Draft National Children Policy is currently under consideration• Draft Children Bill 2010 – bans any form of sexual, physical, oremotional violence in workplacePost Judgment• Circular prohibiting CP published• Law Commission has Recommended Amendments/Repeal on basisof a Memorandum drafted by BLAST• Inter-Ministerial Meeting (Sept 2010) mandating preparation ofTeacher Training Manual• Departmental Proceedings initiated in 14 cases• Inquiry Reports in some cases provided• Guidelines on Prohibition of CP in Educational Institutions published
  33. 33. BLAST Campaigns / Advocacy Research◦ Conducted survey research with IID to identify various forms ofviolence faced by children Draft Child Rights Protection Policy◦ collaboration with SMCs, parents/teachers, NGOs, and child rightsexperts◦ Addresses gaps due to lack of uniform policy at schools◦ Successfully piloted non-violent classroom management in 100schools in Chittagong Raising Public Awareness◦ Awareness sessions for parents, caregivers, community leaders, andstakeholders◦ Publication and dissemination of Judgment, Circular, and Guidelines
  34. 34. BLAST Campaigns / Advocacy◦ Digital and social media campaign, via internet radio and social networkingwebsites◦ District-level Community Fairs, inc drama, art, and essay competitions◦ Formation of CBOs and Volunteer Groups◦ Media advocacy with local journalists Individual Follow-up◦ Tracked reported incidents of CP and conduct follow-up action◦ Provision of mediation, litigation and client support services from our offices Legislative Advocacy◦ Meetings with Parliamentary Standing Committees, NHRC, Law Commission andrelevant Ministries
  35. 35. Current StatusMandate for Legal Reform– Directives on Ministry of Education to ensure cp included in definition ofmisconduct in disciplinary rules for both private and state school teachers– Directive to consider prohibiting CP in home/workplace– Directive to consider repeal of laws that mandate CP– Communication of judgment to Ministries ofEducation/Law/Home/Women and Children
  36. 36. Thank You© Tushar Nabi Khan