Analysis

Ensure children’s rights

Jivesh Jha

jivesh-jha

Children are the most vulnerable section of society. It was on November 20, 1989, the world community decided to heed the rights of the children globally. The resulting United Nations Convention on the Rights of the Child (UNCRC) was ratified by record 191-state signatories.

Despite their rights, children have been subject to different kinds of abuses. Their plight has been documented by different government and non-government organisations. They have been suffering misery, child labour, child marriage, trafficking or sexual abuse and many other offenses. These crimes are perpetuated everyday due to the negligence of state as well as poor enforcement of laws.

In a bid to end all forms of violence against children and ensure full realisation of their rights in accordance with the international commitments, Nepal ratified UNCRC on September 4, 1990.

Nepal was one of the early signatories in 1990. The year 2017 marks 28 years since the UN General Assembly adopted this Convention. While celebrating the 28th anniversary of UNCRC, we should ask ourselves what more we can do to transform the lives of children in Nepal.

The welcome news is that we have a fair corpus of Constitutional mandates which impose an obligation on the state to make positive changes in the lives of the children of Nepal.

In this light, 2015 Constitution envisages progressive provisions relating to the rights of children.  Titled (i.e., marginal note) with ‘Rights of Children’, Article 39 of the statute book carries as many as 10 welcome clauses in an enumerative form. To mention a few, the highest law of the land slams any form of torture on children at home, school or any other places; the charter prohibits  recruitment of children in the army, police or armed groups; right to formative development and right to friendly justice; or right to seek compensation at the event of infringement of rights.

It is to be noted that the Nepali Constitution (as mentioned under Article 39:10) leaves other national Constitutions of the world, including South Asian states, far behind in ensuring a child’s right to seek compensation from the perpetrators (for more details see our reporting on http://lokaantar.com/en/articles/child-labour-malady-south-asia/).

Not only this, the statute also permits the state to ensure special protection to helpless children, orphans, victims of conflicts and physically impaired. As children cannot look after themselves, state should ensure facility for social security, commands Article 43.

“On the whole, the 2015 Constitution guarantees rights to the child in parallel with international human rights standards, except on the issue of citizenship,” opines Dr Surendra Bhandari, a senior advocate at Supreme Court of Nepal and the author of Constitutional design and implementation dynamics: Federalism and inclusive nation building in Nepal.

Like the Constitution, Children Act 1992 is considered as an important document for the protection and promotion of the interests of children. The Act has provisions to prevent the employment of any child under the age 14 and also prescribes punishments for the crimes related to child. Section 2 (a) of the Act 1992 defines child as every human being under the age of 16.

Despite these legal developments, “Nepal has one of the highest rates of child marriage in Asia – for both girls and boys. Although the legal age of unions for both sexes is 20, more than a third of young women aged 20-24 report that they were married by the age of 18, and just over one in ten by 15. Nepali boys are among the most likely in the world to be child grooms. More than one in ten is married before they reach 18,” reads a report of UNICEF.

In this context, it’s advisable for the Himalayan State to take cognisance from a recent legal development in India. In a groundbreaking verdict, the Supreme Court of India this year held that “under no circumstance can a child below 18 years of age give consent, express or implied, for sexual intercourse” and hence sex with a minor wife constitutes the offense of rape. In pronouncing so, the top Court intended to slam child marriages.

However, the future looks miserable for our children who are destined to live in servitude even before they have entered school.

This situation has potential to invite a perfect storm in the country because “even the Juvenile Justice system in Nepal is very weak. It is limited to interrogating children in civil uniform. Unfortunately, there is no categorisation of child in conflict with law and child in need for care and protection. Moreover, what happened to the children used in People’s Liberation Army?  How were they rehabilitated? No one ever talked about it. And the dominant debate after Comprehensive Peace Accord (CPA) was Truth and Reconciliation Commission (TRC) which is not explicit about children,” asks Kalpana Jha, a researcher at Kathmandu-based research agency and think-tank Martin Chautari.

In contrast, the Constitution has defined health as a fundamental right and directs the government to endorse necessary laws within three years of the enforcement of the statute. However, the state’s endeavour to ensure cost-effective health schemes has become a distant reality.

“For Nepal to be healthy and break the inter-generational cycle of malnutrition, the state as well as non-state actors should set their sight on health, nutrition, and social status of the children, adolescent girls and safe motherhood,” opines Dr Anupam Jha, an Associate Professor of International Law at Delhi University, India.  He added that “poor nutrition is poor economics. Also, poor nutrition will fracture the dreams and aspirations of Nepal to become an influential actor in Asia. It’s high time to realise that poor nutrition leads to poor humanity.”

The preamble of our Constitution explicitly commands the state to create an egalitarian society on the bedrock of socialism. But the mushrooming private health sectors, which intend to privatise the profits and socialise the loss, have potential to rupture the Constitutional goal (of creating an egalitarian society). Also, it is to be noted that healthcare business has become a safe investment with immediate return over the years.

However, the story does not end here.

There is yet another problem which intends to glorify gender bigotry. “Female foeticide or selective-sex abortion also points a modicum of enforcement of law. It’s often said that traditional cultural norms dictate a strong preference for boys and people take recourse to medical technologies for sex determination (leading to selective-foeticide). It has potential to reinforce socially injurious personal choices,” adds Professor Dr Jha.

Still, “Who is going to start the transformation? No politician or bureaucrat is interested to voice the concerns of the children as they [children] are neither vote banks nor are they matured enough to dance to the politicians’ tune,” argues Rajeev Ranjan, a faculty member at Legal Philosophy and Jurisprudence in Uttaranchal University, Dehradun, India.

Child

Image source: BBC

“In a civilised state, no child should go without basic health care, food security, education or basic amenities like toilets, sanitation or nutritious food. It’s a daydream to envisage that a society would make any progress without addressing these basics,” maintains Professor Ranjan.

He adds, “The devils are detailed under the reports of various organisations and the studies project a depressing reality. So, it’s time for the state to acknowledge (in true and material sense) that our children deserve investment, development and they are the assets of our society, not liability.”

Meanwhile, “The children should not resort to any form of violence. Their innocence has potential to propagate a lot of messages about the simplicity of life and all sections of society should firmly come out in the open to protect their innocence,” opines Dr Mamta Rao, a faculty member at Pubic Law in Rani Durgawati University, Jabalpur, India.

Dr Rao, who is well-known for her popular work Law Relating to Women and Children, further says, “If South Asian states endeavour to build a good image across the world, then they should take the issues of children with sincerity.”

She then goes on to argue: “It’s the gesture of compassion and humanity that is going to help in expediting the global movement against all forms of violence on children. Our decisions to enforce international commitments make our intent clear that we are ready to join the fight against all steps which harm the development of our children. Yet, the exploitation of our children continues in broad daylight.”

Nevertheless, “The South Asian states have fair corpus of legislations. But the mismatch between the existence of good legal frameworks and their real implementation is itself a commentary on the capacity of the South Asian nations,” adds Dr Rao.

Dr Rao further argues, “We cannot bring changes over a cup of tea. The rights of millions of children will continue to be in limbo unless the efforts are stepped up. The true and material progress could be realised only when we succeed to focus on commitments, investments and actions on the right interventions.”

At this backdrop, the famous saying of Nelson Mandela bears relevance. He rightly observed, “There can be no keener revelation of a society’s soul than the way in which it treats its children.”

The writer is pursuing Master of Laws in Constitutional & Administrative Laws from Uttaranchal University, Dehradun, India).

jhajivesh@gmail.com

Published on November 15, 2017

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