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Deceember 5, 2004

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Children in custody still denied justice

Md Nur Islam

The number of juvenile delinquents are not negligible. Most of those children delinquents are languishing in the jail custody with total denial of their rights. Since crime is a social malady children are often vulnerable to it. When children are not be brought up in a desired and congenial environment, they tend to be involved in different types of crime and finally discover themselves to be delinquents. No child is born as a delinquent. The parents of each child harbour future dreams to their children but many of the dreams do not come into reality because of the adversaries of the society. Keeping this view in mind, the juvenile justice system should be given its due priority with regard to necessary developments and substantive changes in the enactment. For that end, juvenile justice system should not be confined to only the treatment of children when they come in conflict with the laws but to include the root causes behind the delinquent behaviour and the measures to prevent them.

In 1974 a comprehensive children Act was enacted, it has also got a complementary, namely, the children rules-1976. And the cases of children supposed to be governed by Act aided by the criminal procedure code & the penal code.

Definition of children
The different laws have defined children in different ways. But for the very purpose of this system, the children Act has defined a child as any person under the age of 16 years. The convention on the rights of children (CRC) defines a child as any person under the age of 18 years.

Juvenile justice and court
Juvenile justice has become an international issue with introduction of the convention on the rights of the child (CRC) coming into force in 1990. The essential element of a juvenile justice system is an attitude. An attitude that values each boy and girl who is in the justice system and cares about how the experiences in the system will shape the life of each one of them. The manner in which police arrest or interrogate a youngster, the way judges make decisions about guilt or sentencing, the educational, recreational and safety conditions in detention facilities, the programs for rehabilitation and reintegration that is to say every component of the entire system must be constructed to prevent humiliation and avoidable suffering. Juvenile justice in a broader sense not only includes the treatment of children when they come in conflict with the law, but also involves the root causes of the offending behaviours and the measures to prevent them.

In infringement of international standards, juvenile inmates are often held together with adults. A study shows that there are 1063 children in 60 jails and 280 more in the correction centers in Bangladesh. Many of Bangladeshi's jail and police lock-ups mix juvenile and adult prisoners. Children in such circumstances, frequently fall victim to bodily abuse, including sodomy and rape by adult inmates. In such a situation the appropriate measures have to be taken with a view to eradicate the impediments as existed in our juvenile justice system.

The children Act 1974 was enacted to consolidate and amend the hitherto existing laws relating to the custody, protection and treatment of children and trial and punishment to young offenders. This Act has laid down the provision for establishing the juvenile courts for any local area for the purpose of the trial of the youthful offenders. The section 3 of the Act says" Not withstanding anything contained in the code, the government may be by notification in the official gazette, establish one or more juvenile courts for any local area. The section 4 of the act has provided provision to exercise the powers of juvenile courts by (a) the High Court Division (b) a court of sessions (c) a court of an additional sessions judge and of an assistant sessions judge, a sub divisional magistrate (district magistrate), a magistrate of the first class. The section 5 of the act deals with the power of the juvenile courts while the section 6 suggest separate trial of the children accused, the section 7 regarding the holding of setting of the courts, the section 9,10,11,12,13,14 and 15 are procedural in nature. The part viii of the act has dealt with the provisions regarding the bail of the offenders, the restriction on punishment, power to discharge or commit in suitable custody etc as espoused in section 48-54 while the part viii of the same act as enshrined in sections 55-61 has exposed the provisions regarding definition, supervisions ect of the victimised children. The demands of establishing juvenile court and the separate trial of the juvenile offender are getting momentum in our country. The need for separate juvenile court is being emphasised in workshop, seminar etc by the conscious section of the people.

Age determination factor
For smooth and proper functioning of juvenile justice system, the determination of age is a must. In laws of Bangladesh there is no uniform definition of children, the different laws define children differently Apart from this, the birth registration mechanism is very poor in our country and the same is not properly and adequately maintained and, as such, the concerned authority has to depend on mere inference and speculation while determining age of children. In this respect a proper device with determining the age of children should be chalked out. If need be, laws will be amended in case of juvenile justice to ensure that the age of a child offender is determined by the date of the offence committed.

Serious contradiction in laws
There is also a serious contradiction in laws, while the children Act terms the under-16 as minor, the majority Act 1875 terms all the citizens under 18 years as the same too. The government must revise the relevant laws in order to remove the inconsistencies. Moreover, this Act is silent about exploitation of children in the name of family enterprise/businesses. The issue is whether such exploitation in the name of family business is punishable or not.

Recent development at abroad
International treaties and customary international law forbid capital punishment for offenders under the age of 18 at the time of the offence for which they were convicted. Iran, Saudi Arabia, Nigeria and the Democratic Republic of Congo are the only countries that are known to defy the world wide consensus that the death penalty should not be imposed on juvenile offenders. Recently, the governors of two states, South Dakota and Wyoming have signed the legislation raising the minimum age for capital punishment in their states to 18. In the United States, 31 states and the federal government now prohibit the execution of juvenile offenders.

Some major obstacles
Poverty is major reason behind juvenile offence in a country where 48 percent people live under the poverty line; Most significant problem is ignorance of magistrates, law enforcement agencies and probation officer about the legal approach to children; Lack of training of magistrates and other law-enforcers on how to deal with children that impedes greater prevention of abuse of troubled children; Lack of society or community mechanism to address child-rights issues; Lack of relevant amendment, proper interpretation and understanding of the children Act, 1974 and children Rules, 1976; The existence of the 1943 vagrancy Act, which is said to be 'anti poor' and 'counter constitutional'; and lack of co-ordination among the government agencies.

Some recommendations
Reduction of poverty and socio-political instability should be viewed as fundamental changes that could positively change people's mind set towards children; a greater bondage between parents and children and lower incidence of broken homes could reduce the problem of children pushed towards crime; co-ordination between magistrates, policemen and probationer officers have to developed; And a greater awareness is needed among government workers about sensitivities in dealing with juvenile offender.

Concluding remarks
Juvenile justice is something completely different from criminal justice. Protective legislations and their proper implementation through an effective child-friendly legal system based on ground reality can safeguard the rights of juvenile offenders. A creative approach is necessary to improve the juvenile justice system and establish a just society. Only new thinking, new values, new projection and positive outlook with determined action can achieve this. With a humble hope of due consideration of authorities for enactment of adequate laws in this regard, this work is concluded herein.

The author is a Senior Assistant Judge.

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