ELABORACION DE PROTOCOLO DE ATENCION FARMACEUTICA

124 children‘s perceived rebelliousness with excessive

discipline and other authoritarian measures.³¹⁹

Equal rights for children is bound to disrupt the normal working of the traditional family. It will leave parents unsure as to how to handle their children. It will give children freedom which is not commensurate with their level of development and given what we know and have seen of children‘s needs, it seems to me that this state of affairs needs to be avoided at almost any cost.

Article 1 of the UDHR states, ‗All human beings are born free and equal in dignity and rights‘. It also states that all humans are equal before the law and are entitled to equal protection of the law. In recent times, these provisions have been regularly quoted by documents providing for child rights, both local and international. Was it the intention of these provisions that the child should exercise rights in the same level and extent as the adult? I think not. This position is evidenced by the fact that prior to this era of equality, every law and right contain an exception for children, a different yardstick for measurement. Child right laws however, have gradually and consistently gravitated towards ensuring more rights for the child, at the same time reducing the child‘s responsibility. This irregularity has bred more confusion through the years, a confusion that has defied resolution in the hands of law makers, jurists and judges alike, in some areas more than others.

125 conveying the impression that the equal exercise of these rights were covertly accorded the child by preceding documents like the UN Charter and the UDHR.

Is that impression correct?

The preamble to the CRC states:

-Whereas the people of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedoms,

-Whereas the United Nations has, in the Universal Declaration of Human Rights, proclaimed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,

-Whereas the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth,

-Whereas mankind owes the child the best it has to give,

―The States Parties to the present Convention, Considering that in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, … have agreed as follows:‖

The phrase ‗human family‘ in this text does not depict a nuclear family of father, mother and children; but rather a family consisting of and comprising the whole of humanity, of races and colours, cultures and opinions. In other words, the phrase has to do with a much larger group where the white is not superior to the black in dignity, where the developed is not superior to the developing in worth, where the stronger is not free to enslave the weaker.

Article 1 of the UDHR states ‗All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of

126 brotherhood.‘ This text in the UDHR is the most quoted in the fight for equal rights for children. If I should interpret that article, it would read ‗all human beings are born free and equal in dignity and rights because they are endowed with reason and conscience …‘ children don‘t come out having reason and conscience, they develop and grow and mature with time and experience. The correct interpretation is that the level of freedom and equality should increase in tandem with the degree of development of reason and conscience. The word ‗born‘ here has nothing to do with time, it only means inherent, i.e. there is nothing else one needs to do to have the ability (except grow up of course), no requirement of turning white or black, or changing their sex or conforming to a particular ideology or opinion. None of the above texts considered children specifically with regard to rights. In fact the UDHR acknowledges the immaturity of children and advocates care and protection which again is a different yardstick.

One of the aims of the UN is to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.³²⁰ Again, article 2 of UDHR states, ‗Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.‘ It is interesting to me but not surprising that these provisions conspicuously failed to include ‗age‘ as a possible basis for discrimination. This is simply because the drafters of that document did not have children in mind while they were considering ‗rights and freedoms‘. One may argue that the final phrase in that definition ―or other status‖ more than compensates for that seeming oversight. However, the meaning of that phrase can only flow from the preceding specifically mentioned categories and not contrary to them. Initially child rights laws were made with the intention of protecting the child and ensuring his future. With the evolving trend however, emphasis is on giving children more rights and consequently, greater freedoms.

The UN Charter cited by the CRC states in its preamble as one of the purposes of the organisation, a determination ‗to reaffirm faith in fundamental human rights, in the dignity and worth of the human

320 Charter of the UN Article 55 (c).

127 person, in the equal rights of men and women and of nations large and small.‘ No mention was made of children because it did not occur to the drafters that the rights of children as a stiff, formal and legal obligation would soon become a very serious issue.

Borrowing from previous human rights documents with the aim of preserving and bringing the idea down to the child‘s level and retaining the spirit of freedom as well as obeying the plan and joining in the determination to ―promote … better standards of life in larger freedoms‖, the CRC provided in its Article 2 (1): ―States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status,‖ succeeding only as far as regulating discrimination among children is concerned.

In chapter four of this work, I tried to look at the ideas on which the agitation for equal rights for children are based because I realise that the rational for these ideas becomes relatively unimportant once they get translated into policy, the policy of letting children choose their own values and principles as far as possible. I am particularly concerned that the views of the Committee on the Rights of the Child are beginning to tilt towards these suggestions. As we saw in chapter three, the Committee is the body vested with the duty both of interpreting and ensuring compliance with the provisions of the CRC. I bet we all suppose we know what it means for children to have fundamental rights. I for one was surprised at the interpretation given these rights by the Committee.

4.6 THE FUNDAMENTAL RIGHTS OF THE CHILD