| by Dr. Ruwantissa Abeyratne
“You will be my witness”… .Isiah 43:10
( February 20, 2013, Montreal, Sri Lanka Guardian) The pictures in Callum Macrae’s article “The Killing of a Young Boy” would not have failed to tug at anyone’s heart strings. I was stunned beyond belief and deeply saddened. Whoever the perpetrator was, and no matter whose son it was, this was a twelve year old child, seemingly trusting the world of adults and depending on them for sustenance and protection. This is outrageous and simply unacceptable.
In every sense, this was a crime against humanity as heinous as the crime committed on children who were sent to the gas chamber during the holocaust, which remains the worst ever permanent blot in the annals of the human race.
A child is very special and vulnerable being and is internationally considered as requiring special protection. The rights of the child are internationally recognized in the Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 44/25 of 20 November 1989 The Convention, had 140 signatory States as at 1 November 2006. It entered into force on 2 September 1990.
For the purposes of the Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. The underlying principle of the Convention, as laid out in its Preamble, is that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance, and, as the fundamental group of society having a right to the natural environment of the world, the growth and well-being of which is the responsibility of all members of the United Nations, children should be afforded the necessary protection and assistance so that they can fully assume their responsibilities within the community. The Convention also lays down that the child should grow up in a family environment, in an atmosphere of happiness, love and understanding for the full and harmonious development of his or her personality.
As the Convention on the rights of the child is an international treaty that binds States parties, the primary responsibility lies in the State concerned to ensure protection of the child from all forms of abuse, while ensuring that a child should not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary in the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. The Convention requires that States Parties respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
The Convention gives the child the right to freedom of expression; this right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice. One of the most important covenants of the Convention is the requirement that States respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. This includes that States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly, with the added condition that no restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order the protection of public health or morals or the protection of the rights and freedoms of others.
Arguably the most compelling requirement of the treaty is that no child should be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation, and that the child has the right to the protection of the law against such interference or attacks. To this end States Parties are required to recognize the important function performed by the mass media in pursuance of which they should ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. One of the ways in which States are expected to ensure this right is by encouraging the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of Article 29 of the Convention, which ensures the child’s right to education. According to this provision, States Parties have agreed that the education of the child should be directed to the development of the child's personality, talents and mental and physical abilities to their fullest potential; the development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; the development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; the preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; and the development of respect for the natural environment.
Another compelling and important provision in the Convention is Article 19 which demands that States Parties take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
It is expected of States Parties to the Convention that they will use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, should be entitled to special protection and assistance provided by the State. In this regard alternative care for such a child must be ensured and such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard should be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.
Should a child request that he or she is given refuge under the protection of a State, Article 22 of the Convention requires that the State concerned will take appropriate measures to ensure that the child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures will, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. For this purpose, States Parties are expected to provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child has to be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason , as set forth in the Convention.
The Convention also provides for assistance to mentally challenged children by requiring in Article 23 that States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community. Also, States Parties should recognize the right of the disabled child to special care and should encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.
With regard to health requirements of a child, States must recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties are required to strive to ensure that no child is deprived of his or her right of access to such health care services.
Every child has a right to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development. Furthermore the State has to take appropriate measures to assist parents and others responsible for the child to implement this right and should in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.
As for education, the child has, under the Convention, the right to education. To this end, extent primary education should be compulsory and available free to all, and ; different forms of secondary education, including general and vocational education, should be made available and accessible to every child. There must also be free education and the offer of financial assistance in case of need. With regard to higher education, it is recognized that higher education be made accessible to all on the basis of capacity by every appropriate means and educational and vocational information and guidance should be available and accessible to all children.
In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous should not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language. The right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts must be guaranteed by the State. To this end States Parties are required to respect and promote the right of the child to participate fully in cultural and artistic life and should encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.
Another most important consideration lies in Article 32 which provides that States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development. One of the ways in which this right could be enforced is by States Parties undertaking to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties are required in particular to take all appropriate national, bilateral and multilateral measures to prevent: the inducement or coercion of a child to engage in any unlawful sexual activity; the exploitative use of children in prostitution or other unlawful sexual practices; and the exploitative use of children in pornographic performances and materials.
Article 37 is yet another forceful provision which ensures that no child will be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release should be imposed for offences committed by persons below eighteen years of age and that no child should be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child should be in conformity with the law and should be used only as a measure of last resort and for the shortest appropriate period of time;
Every child deprived of liberty is to be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty should be separated from adults unless it is considered in the child's best interest not to do so and should have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances. Finally every child deprived of his or her liberty should have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action. The Convention also contains provisions whereby responsibility devolves upon States to rehabilitate a child who has been deprived of his rights the right to be rehabilitated.
Sri Lanka signed the Convention on the Rights of the Child on 26 January 1990 and ratified it on 12 July 1991. According to Article 157 of the Constitution of Sri Lanka (1978), duly ratified international agreements have the force of law in the country and no law may be enacted that is in contravention of the international agreement.
Go figure!!
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