Children being in one of the most vulnerable groups of the society,
need special care in handling especially in case of delinquency.
Although children justice systems exist in countries throughout the
world but they usually vary with the degree of harassment associated
with the handling of children and the corrective measures adopted
thereupon. The level of variation and gravity of harassment necessitated
the promulgation of various international instruments which are used as
the measuring tools of the children justice system, one of which is the
Convention on the Rights of the Child (CRC) 1989, which has a binding
effect upon the ratifying member States of the United Nations for
adoption. It is the responsibility of every citizen to ensure that
children's rights are affirmed and to improve the life of children; and
to protect their rights. Therefore, the responsibility implies that
state and civil society organisations ensure the full flowering of
childhood and protection of children.
Though the international conventions have set certain
responsibilities for the ratifying States, there is no formal obligation
to implement the provisions of the conventions. It is an accepted
principle that international covenants, conventions treaties and other
instruments signed by the State parties are not considered to be binding
unless they are incorporated into the laws of the land. The general
practice of the country is evident that international treaties do not
automatically become part of the domestic laws unless and until they are
incorporated into the domestic legislation.
The issue of state responsibility is very much important to create a
child-friendly justice in the country. In practice, courts in Bangladesh
cannot enforce international treaties even if ratified by the State.
They must be incorporated in the municipal legislation.
However, the status of treaty under the constitution within the
domestic law still remains unclear in many cases. But where there is a
gap in the municipal law in addressing any issue, the courts may take
recourse to the international conventions and protocols on that issue
for the purpose of formulating directives and guidelines to be followed
by all concerned until the national legislation enacts laws in this
regard. Thus, any international convention or treaty can be invoked by
the court upon its incorporation by the parliament. Although courts
cannot enforce treaties or conventions even after they have been
ratified, they (courts) can use them for explaining the grounds of the
judgments.
The High Court Division issued some landmark judgments which
established the fact that no children should be tried by the criminal
justice system or by any special tribunal established under any special
law. The courts have considered the development of the children laws,
international treaties, covenants and conventions in the cases of State v
Md Roushan Mondal (59 DLR 2007 72) the State v Metropolitan Police
Commissioner, Khulna (60 DLR 2008 660) etc. and have explained how and
why should Bangladesh express its subordination towards the
international treaties and conventions. In this regard it was held as
follows: “Bangladesh was one of the first signatories to the Convention
and is bound to take steps for implementing the provisions thereof.
Being a signatory we cannot ignore, rather we should, so far as
possible, implement the aims and goals of the UNCRC.”
After seven years of the case of State vs. Md Roushan Mondal
Bangladesh has reflected the CRC in the new Children Act 2013 including
juvenile courts and juvenile justice board for child welfare by the
Children Act 2013.
The CRC upon its ratification has become binding on Bangladesh. The
Convention in Article 4 sets out the general measures of implementation
that the States are required to undertake to implement all the rights
stated in the CRC, including in the area of legislative reform. Thus,
Article 4 of the Convention provides that “State Parties shall undertake
all appropriate legislative, administrative, and other measures for the
implementation of the rights recognized in the present Convention.”
State parties to the CRC must have a legal framework that is both
effective and compatible with the CRC and that ensures that the rights
the Convention vests in children are fully enforceable under the
national laws.
To make the CRC effective, it has been a part of the domestic law as
well in 2013. From legal point of view, only the CRC amongst the major
international instruments, is legally binding, while the other three
instruments (Beijing Rules, Riyadh Guidelines and JDL Rules) exist to be
the non-binding 'soft laws'. These three non-binding instruments
complement and provide guidance for the implementation of the CRC and
accordingly referred to as 'United Nations standards and norms in
juvenile justice'.
The law enforcement mechanism is very weak in developing countries
like Bangladesh. It is needed to develop accountability to all levels
and to build up international network for the promotion of
responsibility towards fair children justice. At the same time, it is
needed to make dramatic progress on internalisation of law with a
special focus on responsibility in order to take effective binding
measures.
It is also important to train up the persons concerned in the
children justice system so that proper implementation of the new law can
be ensured. Therefore, a holistic approach must be taken by all
concerned to ensure that the children of this country achieve
fulfillment of their rights. In this context, Bangladesh should develop a
mechanism for the implementation of the international standards to
achieve justice and dignity for our children.
