Human Rights Monitor
State of juvenile justice system in Bangladesh
Anisur Rahman
The edifice of juvenile justice system is build on, firstly, the separate trial for children and secondly, the concept of segregation. There are two reasons behind the development of the juvenile justice system. One is the recognition that children are separate entities who cannot understand the consequence of the act committed due to immaturity and the other is the prison condition. Children are often suffer neglect, abuse and violence when they are picked up by the police. Children might come into conflict with laws for multifaceted reasons. But when they are arrested they should be treated differently than the adults. They shall be treated in a manner consistent with the basic rights of the child, i.e. right to dignity, right not to be tortured, right to privacy. That's why a separate trial system becomes imminent, which will consider the age of the child and where the welfare and promotion of the child rights will get priority. Whatever criminal charges they face, children should only be deprived of their liberty as a last resort and for the shortest possible time.
Crime or criminal?
Juvenile justice system is not a new concept. It is part of criminal justice. But unlike the criminal justice, juvenile justice looks to the criminal instead of crime. The word 'trial' used in the juvenile justice is also different in implication form the that used in the criminal justice. In the latter case the word 'trial' is used in the sense to determine the guilt of a person, which is followed by punishment or acquittal. But in the former case it is used not to fix the punishment following the trial but to provide with their custody, protection and treatment. In the juvenile justice reintegration of the child into the society takes priority over determining the guilt of the child.
It is worth noting a well defined law has been promulgated in Bangladesh after few years of independence. The Children Act 1974 speaks for a separate trial, care and reintegration of the child into the society. Moreover, the Nari O Shishu Nirjaton Domon Ain, 2000 and the Nari O Shishu (Bishwes Bidhan) Ain, 1995 are important domestic legislations which children frequently come across. But only the former advocates for the different treatment of the young offender except punishment. Let us see some important issues revealed by the Children Act.
a) Establishment of Juvenile Court: The Children Act imposes a duty on the government to establish juvenile court in any local area as the government thinks fit. Until and unless the juvenile courts are established, the Act empowers the court of Additional Session Judge, Assistant Session Judge, Magistrate First Class and the High Court Division Court to exercise jurisdiction of the juvenile court. A juvenile court will perform two main functions. Firstly, to try cases in which a child is charged with commission of an offence and secondly, to deal with and dispose of other cases under the Act. It is to be mentioned that children may be brought before the juvenile court not only for trial but also for their protection, care and treatment. For example when destitute children are brought before the court it may order, after reasonable satisfaction, the children to be sent to the approved home.
b) Prohibition of joint trial: The Act prohibits the trial of a child jointly with an adult. Section for the commission of an offence 239 of the Code of Criminal Procedure, 1898 provides for the joint trial in some circumstances where persons who are accused of commission of the same offence in the same transaction. But the Children Act 1974 is an exception of this section where a separate trial for the child is required though he commits an offence with an adult. In other words where the child and an adult commit a crime jointly their trial will not be held jointly. A child will not be tried jointly with an adult (Shiplu and another Vs State, 49(1997) DLR, HCD, at p-53).
c) Prohibition of public trial: Section 9 and 10 of the Children Act 1974 reveals that except the members and officers of the court, parties to the proceedings, parents and guardians of the child and such other person as the court thinks fit, no one will be allowed to be present in the trial of a child. This is an exception to the provisions of the Constitution as well as the international human rights instruments on public trial.
This deviation from the public and open trial in the case of the children only mean that the juvenile trial is an exceptional criminal preceding where the court will not allow the harmful exposure of the crime committed by the child. This principle of private trial will not only be maintained in the case of trial but also will be applicable in the case of the examination of a child in any other criminal proceedings.
d) Reformative approach of the court: An important aspect of the Children Act 1974 is that it advocates for the reform of the child offender. It provides that the court will look to the offender not to the crime committed by him. That it will take into consideration the character, age, circumstances in which the child is living and such other matters as the court thinks fit before passing sentence. Unlike the criminal justice the court will not determine the guilt of a child based on the act alone. This principle is also reaffirmed by the High Court Division in the case of State Vs Deputy Commissioner, Satkhira {45(1993) DLR, HCD, at p-643}.
e) Prohibition to publish particulars of a child: It is noteworthy that the court shall always look to the well being of the child while he is going under trial. The Act also prohibits publication of particulars of a child in any newspaper, magazine for future well being of the child. Even the words 'conviction' and 'sentence' cannot be used in relation to a trial of a child or juvenile offender.
Concluding remarks
It is the irony of fact that after a few decades the realisation and implementation of this important law is still frustrating. Even this Act is never taught in the educational institution as a course or a part of a course. There was no much talk about this Act either until nineties. That leads to the students of law joining court without having any knowledge of juvenile justice or separate trial for the child offenders. Besides, the Judicial Training Institute, Bangladesh Bar Council and other government institutions providing training for the Judges, Lawyers and government employers do not include this law in their training curriculum. Therefore, the issues of juvenile justice is remaining unknown to the judges, lawyers, police and other public servants who are directly dealing with children.
The writer is Lecturer of Law, Stamford University Bangladesh. In the next episode he will glimpse over the reasons for non-implementation of the Children Act.
