Star Law Report
Ensuring fundamental rights for under trial child prisoners
BLAST v. Bangladesh and Others
Tapas Kanti Baul & Tasnoova Zahin Zaki
Article 40 of the United Nations Convention on the Rights of the Child says: "State parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society."
It is evident from this Article of Convention on the Rights of the Child (CRC) that there was a time when no difference was recognised between youthful offenders and adult criminals but with the development of human civilisation, states have pledged to change the situation. At present times most of the legal system and societies in the world recognises the differences in punishing youthful offenders and adult criminals. Youthful offenders are more commonly known as juvenile delinquents and represent the age group between 10-17 representing various social strata and circumstances.
This distinction is recognised because youth are different than adult in their ability to make prudent decisions, understand the effect of their actions, and comprehend the irreversible reality of committing a criminal act. At the same time young offenders are viewed as having a better chance than adults of changing criminal behaviour patterns which means that a first time offender availing proper care and opportunity may not grow as a habitual criminal. On the other hand, an examination of the laws shows that although they are meant to protect the interests of children, they have been formulated from the point of view of adults and not children. They are neither child-centred, nor child friendly, nor do they always resonate with the CRC.
In 2003, Bangladesh Legal Aid and Services Trust (BLAST) filed a Writ Petition before the Hon'ble High Court Division of the Supreme Court of Bangladesh in the light of a report published in the Daily Star (title: “Behind Bars, Sans Trial for Years” Issue No. 23 Dec., 2003) where the timeless agony of the under trial prisoners including women and children had been depicted. According to that report and the Petition of BLAST, 7402 persons including children and women are languishing in the custody without trial. These persons had been under custody for years and they do not know when their cases will be finally decided. Conditions of the juveniles are worst among all under trial prisoners, as several human rights common to all human being like -- right to life, right to speedy trial, etc. as well as those which are specially applicable for juveniles, like -- camera trial, separate accommodation from the adult criminals etc which are otherwise guaranteed by our Constitution and other international human rights documents, are violated.
After hearing the parties, it appeared to the Hon'ble Division Bench of High Court Division of the Supreme Court of Bangladesh comprising of their Lordships Mr. Justice Md. Abdul Matin and Mr. Justice Tariq Ul- Hakim that there is no dispute about the allegation made in the petition about continued custody of the under trial prisoners including the women and the children. There is also no dispute that such action is a total denial of the fundamental rights of the prisoners as guaranteed by the Constitution specially Articles 31, 32 and 35(3).
Article 31 of the Constitution of Peoples' republic of Bangladesh says that:
To enjoy the protection of law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
These under trial prisoners including women and children have been in different jails for periods longer than the maximum term, which they could have been sentenced if convicted at all. That means, as these persons were not convicted in accordance with law, the state or any body empowered by it has no authority to hold these persons in jail and this amount to an “action detrimental to the life, liberty, body, reputation or property of” these persons which can only be taken “in accordance with law”.
Furthermore, according to Article 32, no person shall be deprived of life or personal liberty save in accordance with law. By unauthorised incarceration of these persons, they are deprived of their personal liberty and right to life. Right to life includes not only any threat of loosing it but also all other means which distorts the normal continuance of life.
Again Article 35 (3) of the Constitution says that, every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law.
This Article emphasises on the inalienable right of speedy trial so that no one languishes in the jail without any lawful reason effecting his life and liberty. Some of the under trial prisoners including women and children were in the jail for 10 years and that shows that we failed to ensure their right to speedy trial and if we cannot comply with that then by no means we are allowed to incarcerate them for an unexpectedly longer period which is unlawful and unconstitutional.
In A.R.Antulay v R.S.Nayak it was stated, “ incarceration of individuals for long periods of delay without trial must be held to be denying human rights to such under trial prisoners.”
It is also violative of the governments obligation under international human rights treaties in particular Article 14 of the International Covenant on Civil and Political Rights to a speedy trial as ratified by Bangladesh in 2000.
Considering this, their Lordships gave specific directions for both adult and under age under-trial prisoners. For adults, the Court directed both the parties to co-operate each other for providing legal aid to them under government Legal Aid Scheme under the Legal Aid Services Act, 2000.
Bearing the special situations of children under-trial prisoners, the Court was more specific while giving directions to the juveniles. The Court also considered an earlier suo moto Order No. 248 of 2003, which also came into attention due to another report of the Daily Prothom Alo where the tale of four hundred children under trial prisoners who were languishing in Dhaka Central Jail has been depicted. Referring to this earlier Suo Moto Order, the Court ordered to follow the same directions given in the above mentioned Suo Moto, which are:-
1. Trial, if any of all juvenile accused should be completed with utmost expedition by the juvenile courts and the concerned law enforcing agencies. Prosecuting agencies and legal aid committees be directed to take immediate steps in the matter.
2. Taking in to consideration of provisions of section 82 and 83 of the penal code it is directed t that the government do consider making prayers to the courts concerned for discharging the juveniles accused in appropriate cases. Order of discharge may also be sought for pursuant to section53 of the Children Act, 1974 .
3. The government also do consider withdrawal of juveniles accused from prosecution under section 494 of the code of criminal procedure in appropriate cases especially from the cases charged under ordinary penal laws.
4. The Local Legal Aid Committees formed by the government be instructed to move the courts for bail of the juvenile accused.
5. Juveniles accused in jail must be kept apart from other prisoners.
6. Non-official jail visitors should include Human Rights Activists specially the representatives of Children Organisations of the country.
7. Juveniles accused are to be transferred to correction house and other approved homes with utmost expedition.
The petitioners (BLAST) referred the above-mentioned directives of the previously mentioned Suo Moto and asserted that there is no meaningful implementation by the respondents (the government). While the learned Deputy Attorney General contended that the petitioners who are also members of the national legal aid trust could have taken steps to improve the overall situation but no such initiative has been taken.
The learned judges in this writ petition agreed that the children are entitled to trial before the juvenile courts and positive steps should be taken to make their trial in accordance with law of the juvenile court and not to be tried jointly with adults. The Court also expected that BLAST and the National Legal Aid and others would come forward to solve the problem with maximum promptitude and expedition by implementing the aforesaid directions to make fundamental rights of the prisoners meaningful.
In conclusion, the Rule was disposed of with the aforesaid direction upon the respondents to comply with the direction in suo moto Rule 248 of 2003 and report compliance within 6(six) months from date.
Your Lordships Mr. Justice Abdul Matin and Mr. Justice Tariq Ul-Hakim declared the Judgment on the 3 August 2004. Senior Advocate Mr. Md. Nizamul Haque represented petitioners.
The authors are studying at Law Department, Dhaka University.