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September 28, 2003 

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Negligence of authorities hinders the very purpose of juvenile justice system

Sheikh Hafizur Rahman Karzon

The society of Bangladesh is passing a transition from 1950s. An agro-based village oriented society started to transform into an urban society causing the emergence of single parents' family. Urban life with its anonymity, complicacy and material infrastructure offers more opportunity for criminal activities. That is identified as one of the major causes for high rate of criminality including extensive juvenile delinquency.

Continuous famine in some regions, unemployment, bringing down banks of rivers and increasing poverty caused large-scale migration of people from village to city. The migrated people with their family members took shelter in slum areas and remain deprived of basic civic amenities. Criminal activities are taking strong hold by taking advantage of unemployment, deprivation and vulnerable economic condition of slum people. Absence of strong parental control and lack of opportunity to get education are pressing the juveniles of slums to have more involvement with criminal activities.

Extensive satellite culture has some impact on the mindset of the young folk in no way that is always functioning positively. All these social conditions are contributing heavily for increasing delinquency rate among the juveniles.

Problem of definition of child
The United Nations Convention on the Rights of the Child (CRC) defined child as any person under the age of 18 years unless under the law applicable to the child, maturity is attained earlier. Bangladesh ratified the Convention on the Rights of the Child in November 1989. In Bangladesh there are a number of laws which defined a child. These laws are conflicting regarding the age of children. Some described a child as a person below 12 years, others state below 14 years and some defined them as a person below 18 years of age. But the Children Act, 1974 defined a child as a person under the age of 16 years. Article 2(f) provides that, "Child" means a person under the age of 16 years, and when used with reference to a child sent to a certified institute or approved home or committed by a Court to the custody of a relative or other fit person means that child during the whole period of his detention notwithstanding that he may have attained the age of 16 years during that period.

Juvenile justice system in Bangladesh
The Children Act, 1974 is the substantive law for juvenile offenders and their treatment. The law was made to consolidate and amend the laws relating to the custody, protection and treatment of children and trial and punishment of youthful offenders.

Problem of determining criminal responsibility
As per section 82 of the penal code, the age of criminal responsibility in Bangladesh is above seven years of age. But the Children Act defines a child as a person under the age of 16 years of age. Section 52 of the Act provides that, where a child is convicted of an offence punishable with death, transportation or imprisonment, the Court may, if it considers expedient so to deal with the child, order, him to be committed to certified institute for detention for period which shall be not less than two and not more than ten years, but not in any case extending beyond the time when the child will attain the age of eighteen years. Penal Code and the Children Act, 1974 are contradictory. The age of criminal responsibility is not clear from the above mentioned laws. The minimum age of criminal responsibility requires clarity.

Assuming above seven years as the age of criminal responsibility in Bangladesh the government functionaries are dispensing their activities. When any child of above seven years commits any punishable offence then they are arrested by the police. The police do not consider street children, child prostitute or delinquent juvenile as children and are treated them like adult offenders.

Arrest, bail, detention and discharge
Where a person apparently under the age of sixteen years is arrested on a charge of non-bailable offence and cannot be brought forthwith before a court, the officer-in-Charge of the police station to which such person is brought may release him on bail, if sufficient security is forthcoming, but shall not do so where the release of the person shall bring him into association with reputed criminal or expose him to moral danger or where his release would defeat the ends of justice. [Section 48, the Children Act, 1974] Where such a person is not released under section 48, the officer-in-charge of the police station shall cause him to be detained in a (i) remand home or (ii) a place of safety until he can be brought before the court. A court, on remanding for a trial a child who is not released on bail, shall order him to be detained in (i) a remand home or (ii) a place of safety. [Section 49, the Children Act]

Immediately after the arrest of a child, the officer-in-charge shall inform to the Probation Officer of such arrest to enable the said probation officer to proceed forthwith in the matter of the juvenile. No child shall be charged with, or tried for, any offence together with an adult. Police officer has to submit separate charge sheet and concerned magistrate has to conduct separate trial when a juvenile has been charged with any offence. [Section 50 and 6 of the Children Act, 1974]

No child shall be sentenced to death, transportation or imprisonment. Provided that when a child is found to have committed an offence of so serious a nature that the court is of opinion that no punishment, which under the provisions of this Act it is authorised to inflict, is sufficient or when the court is satisfied that the child is of so unruly or of so depraved character that he cannot be committed to a certified institute and that none of the other methods in which the case may legally be dealt with suitable, the court may sentence the child to imprisonment or order him to be detained in such place and on such conditions as it thinks fit.

Alternative measures
A court may, if it thinks fit, instead of directing any youthful offender to be detained in a certified institute under section 52 order him to be (a) discharged after due admonition, or (b) released on probation of good conduct and committed to the care of his parent or guardian or other adult relative or other fit person on such parent, guardian, relative or person executing a bond, with or without sureties, as the court may require, to be responsible for the good behaviour of the youthful offender for any period not exceeding three years and the court may also order that the youthful offender be placed under the supervision of a Probation Officer. If it appears to the court on receiving a report from the probation officer or otherwise that the youthful offender has not been of good behaviour during the period of his probation, it may, after making such inquiry as it deems fit, order the youthful offender to be detained in a certified institute for the unexpired period of probation.

Difference between text and practice
The purpose of juvenile justice system is not to penalise the juveniles, but to make them understand their mistakes and afford them an opportunity to rectify themselves. Any confinement or detention in a remand home, place of safety or correction centre is a major barrier for the rectification of juveniles. Because detention within an institute creates guilty feelings among the juveniles and people also treat them as offender. Considering this attitude of society the Children Act, 1974 gives power to the officer-in-charge of the police stations to forward the juveniles on bail and to the magistrates to order the juveniles to be released on probation of good conduct and committed to the care of the parents or any other relative even after the conviction of the juveniles. But unfortunately these alternative measures remain unexhausted due to lack of motivation, ignorance of magistrates and unavailability of parents or reluctance of parents. Deprivation of liberty of juveniles by sending them to the correction centre should be the last resort and should be used in the rarest of the rare cases. But deprivation of liberty is extensively used which is frustrating the purpose of juvenile justice.

The provisions to treat the children separately after arrest, to submit separate charge-sheet and to conduct separate trial in a homely atmosphere are not maintained due to ignorance of law, proper motivation and an attitude to avoid extra burden by the police officers and magistrates.

Concluding remarks
The transition of society, complicacy of urban life, absence of parental control and care, impact of satellite culture and overall malfunctioning of society cause to develop deviant juvenile subculture in Bangladesh. Implementation of law by the main actors, exploitation of alternative measures, and all out efforts of societal people of different strata are required to combat this problem.

Sheikh Hafizur Rahman Karzon is a Lecturer, Department of Law, University of Dhaka.


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