Following the event of a speeding bus crashing into a group of students, killing two on the spot and injuring several others in Dhaka, students from the college took to the streets. Agitated students (within the age group of 13 to 18) came out on the streets and started demonstrating, demanding safe roads and justice for the killed. The unprecedented scenario of thousands of teenage demonstrators chanting “We want justice,” defying pouring rain gained the attention of the world.
Protesting students have faced serious physical violence from the police and ruling party activists. Police, along with the ruling party men, were seen firing and baton charging fiercely to disperse students, injuring a number of them.
The constitutionality of such use of force taken by the government is indeed questionable. Laws related to the protection of children must be reckoned in assessing the gravity of the incident, because victims of the assault have been mostly children aged no more than 18.
According to Article 1 of Convention on the Rights of the Child (CRC), a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier. Bangladesh has modified Children Act 2013 which defines “child as a person below the age of 18 years”.
Article 28(4) of the Constitution of Bangladesh guarantees judicially enforceable fundamental rights to all citizens including children and ensures affirmative action for children. Articles 37 and 38 of the Constitution ensure fundamental rights of the minor students in general to assemble – to peacefully protest against any issue which goes beyond the ambit of law. Use of violence to frustrate an assembly of these students, thus, cannot be regarded as constitutional. Moreover, if any child is physically or mentally abused, it is a clear violation of Articles 27, 31 and 35(5).
Section 70 of the Child Rights Act 2013 makes physical and mental torture of children a punishable act. In Bangladesh, the justice system for both children in conflict with the law and children in need of protection are governed by the Children Act 1974 and the Children Rules 1976. The High Court Division observed that the 1947 Act has its basis rooted in the Constitution. In State v Roushan Mondal it was held that “We believe that the Children Act 1974 was promulgated as a direct manifestation of Article 28(4) of the Constitution… and at the same time in response to, and with a view to fulfilling the mandate of CRC.”
The international convention which sets forth the rights of the most vulnerable section of a society is the United Nations Convention on the Rights of the Child (UNCRC). The UNCRC is a human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. Bangladesh is one of the signatory states of the convention.
Article 3 of the CRC states that the “best interests of children” must be the primary concern in making decisions that may affect them. Article 12 expresses the provision to respect the views of a child. States Parties shall assure to the child to express those views freely in all matters affecting the child, the views of the child must be given due weight. Article 13 states that a child shall have the right to freedom of expression. Article 15 requires the States Parties to recognize the rights of the child to freedom of association and peaceful assembly, and no restrictions may be placed on the exercise of these rights. Article 19 obliges the States to protect the child from all forms of physical or mental violence, injury or abuse, neglect, maltreatment or exploitation, including sexual abuse. Article 37 provides that, no child shall be deprived of his or her liberty unlawfully or arbitrarily. Children must not be subject to torture or other cruel, inhuman or degrading treatment or punishment.
In sorting out the conflicts of enforceability of International law in the domestic legal system the Appellate Division stated that Universal Human Rights norms may not be directly applicable in national courts but they should not be ignored straightway (21 BLD (AD) 69). In particular while answering the question of enforceability of CRC the High Court Division held that as a party to the UNCRC, Bangladesh is under an obligation to take steps for implementing the provisions thereof (60 DLR 660).
Moreover, the Constitution puts no bar in the applicability of CRC as the preamble pledges expressly that fundamental human rights and freedom shall be secured for all citizens. In describing the status of the preamble, in Dr Mohiuddin Farooque v Bangladesh it was stated: “The Preamble of our Constitution stands on a different footing from that of other Constitutions by the very fact of the essence of its birth which is different from others. It is in our Constitution a real and positive declaration of pledges, adopted, enacted and given to themselves by the people not by way of presentation from skilful draftsmen, but as reflecting the echoes of their historic war of independence.”
It is clear from a cursory look at the laws that police violence against minor students must be challenged, as it is the most severe form of violation of a child’s Constitutional rights. This is a crying urgency to introduce innovative, elaborate and effective measures to achieve a safer environment for the children to ensure the uprooting of all means of unlawful treatment against them.