Court Corridor
Juvenile offenders and justice system
Oli Md. Abdullah Chowdhury
When dealing with juvenile justice system, Bangladesh as a state has dual responsibilities. As a signatory to a number of international conventions, Bangladesh is accountable to international communities in matters of ensuring rights of the children. On the other hand, implementation of law is a constitutional obligation of all in the country. However, it is a matter of great regret that those responsible have failed in the administration of juvenile justice.
Recently, there had been reports of maladministration of justice in case of children coming in contact with legal steps. On April 8, 2007 a Chittagong court sent an eight-year-old boy to jail after he was charged with raping a five-year-old girl (The Daily Star, April 09, 2006). There was an alarming report in newspaper (Prothom Alo) on April 11, 2007 that police prevented arrested mother to take her child with her. Although the court later ordered the child to accompany the mother, it did not bring the intended result. The child was only 18 months old as per the newspaper report.
Bangladesh is one of those countries which signed UN Convention on the Rights of the Child (UNCRC) at the earliest stage. UNCRC which entered into force on September 2, 1990 is the most venerated human rights convention and most countries of the world except a very few have signed it. Bangladesh not only signed UNCRC, but ratified the convention also. When a state party ratifies a convention, international community can make the state party accountable.
“No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time” [Article 37 (b) of UN Convention on the Rights of the Child]. But in stead of it being the last resort, law enforcing agency resorts to arrest at the very first instance.
International Covenant on Civil and Political Rights (ICCPR) also dealt with the issue of juvenile offenders in Article 14(4): “In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation”. Although there are scopes in both national and international laws, practices are often arbitrary in case of administering juvenile justice. Penal Code and the Children Act, 1974 are contradictory in determining the age of criminal responsibility.
Even though Children Act 1974 came into being long before UNCRC, it is a comprehensive piece of legislation. There are alternative options available other than imprisonment in Article 48 of Children Act 1974 for law enforcing agency. Section 48 provides that when a person apparently under the age of 16 years is arrested on a charge of non-bailable offense but can't be brought forthwith before a court, the officer-in-charge of the police station may release him/her on bail. Children Act 1974 provides magistrate's discretionary power to exercise in releasing children, nevertheless.
In case a child is convicted the court may order him to be committed to a certified institute. This provision is not mandatory because section 53 of the Children Act has given option to the court which can, instead of directing any youthful offender to be detained in a certified institute, order the juvenile to be discharged after the admonition, or released on probation of good conduct and committed to care of his parent or guardian or other relative.
However, magistrates rarely came forward in implementing Children Act 1974. Dr. Mizanur Rahman, Professor of Law in Dhaka University while evaluating Children Act in his study Tracing the Missing Cord: A Study on the Children Act, 1974", observed, "Since most of the magistrates have no legal backgrounds, they do not understand the inner meaning of a specific law . Most of the magistrates are unaware of the existence of the Children Act". He also observed that very few lawyers represent the juveniles except victims of trafficking.
To recapitulate, current caretaker government has taken a number of steps in the establishment of rule of law. In this respect, this government has taken prompt action in separating judiciary from executive branch of the government. Since children are the future citizens, juvenile justice system should be one of the priorities for the government. Ensuring implementation of Children Act 1974 would certainly be a good progress.
The writer is a law graduate and currently working for Friends in Village Development Bangladesh (FIVDB).
