|Volume 5 Issue 11| November 2011|
Punishing Victims in the Name of Rehabilitation
The recently passed anti-begging law criminalises begging without providing for the proper rehabilitation of vagrants, especially women and children, argues TASLIMA YASMIN.
Very recently, the Vagrant and Shelter-less People (Rehabilitation) Act 2011 has been passed, in an effort to rehabilitate those who are engaged in begging. Since this law was enacted with a view to making the old 1943 vagrancy law more time-befitting, it was expected that this would sufficiently address the plight of beggars; particularly it would protect women and children vagrants who were the major victims of the previous outmoded law. However, the new Act in effect, has criminalised the vagrants in the name of rehabilitation by making arbitrary arrest and detention of beggars legal, without addressing the need for special provisions for women and children who have always been the most vulnerable and the prime victim of any suppressive law. Enacting such an arbitrary and unconstitutional law puts a question mark on the overall effort and intention of the government to fulfill its constitutional mandate of ensuring protection for the rights of women and children in Bangladesh.
The definition of vagrant person in the Act is itself arbitrary and subjective and hence is open for abuse by the police who are authorised to arrest anyone on the ground of being 'vagrant'. The new definition describes vagrant persons simply by adding the terms 'persons engaged in beggary', leaving the task of defining 'beggary' itself. On top of that, it adds two new categories of vagrants -- one is 'a person who has no specific place in which to live or spend the night', which violates the Constitutional rights of personal liberty and freedom of movement; the second is 'a person wandering about without any specific purpose and thereby creating nuisance to the public' which is again a vague and unspecific criteria, since the statute is silent about the definition of 'public nuisance'. Therefore it presents the law enforcement agencies with a free hand to decide whether a person is creating nuisance to the public or not and thus gives them an opportunity to pick and choose the persons they wish to put in this new category.
In addition to giving wide power to the police to arrest anyone on charges of begging, the Act is silent about any special provisions that need to be considered while arresting a woman vagrant. It is not specified whether a female officer will only be authorised to arrest a woman vagrant from the street or any police officer can do so. Moreover, in between the time of arrest and bringing the detained vagrant to a Magistrate, the police can keep the suspected vagrants in custody for 24 hours and there is no provision made for any special treatment for women and children detained during such time.
After the Magistrate is satisfied that the arrested person is a vagrant (the burden of proving which is also upon the detained person) he/she will be sent to the 'vagrancy centres' and will be detained there for a period of two years. During detention, the Act only guides the centre authorities to segregate women from men vagrants but it does not give any other guidelines on how the women vagrants will be treated at the centre. Additionally, there is no complaint mechanism available to the detained vagrants against the centre authority. Thus the Act fails to make provisions against abusive treatment by the vagrancy centre authorities and gives them wide discretion as to how the detained vagrants will be treated.
Also the issue of pregnant women who are detained in vagrancy centres is not sufficiently addressed. A provision is made only for determining where the new born child would stay but nothing has been said as to how the woman will be treated during or after her pregnancy.
With regard to street children who suffered the most under the previous vagrancy law regime, it was expected that the new Act would sufficiently address their situation. Unfortunately, however, the issue has been kept completely vague by the drafters of the Act. Although the previous Act incorporated a definition of 'child' as a person aged under 14 years, the new Act has surprisingly omitted any such definition. Also, the Act nowhere refers to child vagrants or makes any provision for them. This may create an impression that compared to the old law the new Act has excluded children from being detained as vagrants, but the Act refers to 'children's ward' in one place which does keep the option open for including children as vagrants as well. Moreover, even if it can be presumed that the new Act intends to exclude children it should have clearly specified that in the text.
Again, the Act provides that if the declared vagrant person is a woman having an accompanying child below seven years old, such a child would also be detained with the mother until reaching the age of seven, after which s/he will be separated from the mother and be transferred to the children's ward of the concerned centre or to other specified organisations. Such a provision for separating a child as young as seven from its mother breaches the fundamental right to life and personal liberty of both the mother and the child. Additionally, the mandatory requirement that a child be transferred to another place removes the scope for the concerned authorities to exercise any discretion, and to make decisions based on a consideration of the best interests or welfare of the child.
Further, the Act is silent about the treatment of any vagrant woman found with a child over seven years at the time of her detention. It is not clear whether the authority would have the power to detain the mother and leave the child, or detain them both as vagrants. The statute's silence on this issue invites abuse by the authorities and also further endangers already vulnerable families.
The overall approach taken in the new Act does not move from the earlier position of criminalising begging. Although rehabilitation of the vagrants is the main scheme of the new Act, it does not clearly define the term 'rehabilitation', nor does it provide for any specific measures to be taken by the government for a meaningful rehabilitation of 'vagrant' persons. It merely states that the government will take necessary steps for rehabilitation without giving any clear direction towards how this will be carried out.
Our government has a constitutional responsibility to respect the fundamental human rights and freedoms of every person, guarantee the dignity and worth of every human being and improve the material standard of living of the people. By enacting a law cloaked as 'rehabilitation' which in reality is no more than another means of bringing about the detention and punishment of persons living in poverty, the government cannot avoid its responsibilities towards vagrants and homeless people whose survival is solely dependent upon begging and who do not have the means to fulfill even the basic necessities of life.
This discussion of course leads to the question, do we want vagrant and homeless people to keep on begging and remain 'vagrant' forever? The answer would be a clear NO. But punishment for vagrancy is not a way to improve the situation of the vagrants, and neither is it allowed by our constitutional mandate. Instead of passing a law with new words and phrases to make it look more human rights-friendly, what is needed is a thorough study of the vagrant situation in Bangladesh valuing the opinion of those for whom the rehabilitation efforts are taken i.e. the 'vagrants' themselves and taking into account the changes and movements that are taking place against anti-begging laws around the world. Most importantly, any measure addressing the situation of so-called 'vagrants' must realise that for a citizen of a democratic country, being poor, disabled or disadvantaged and having no other means of survival cannot and should not be a premise for human rights deprivations.
Taslima Yasmin is Faculty, School of Law, BRAC University and Visiting Lawyer, Bangladesh Legal Aid and Services Trust (BLAST).
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