Star Law Review
Juvenile Courts In Bangladesh
A gap between statute and practice
In the last two consecutive issues I had glimpsed over the development of the concept of juvenile justice and a judicial debate over the determination of the age of the child brought before the court. I would like to take some important issues up in this piece, which cause the juvenile court non-functioning. It is noticed that lack of knowledge about rights of the child among the police, lawyers, court officers and even judges are the causes behind the slow pace of the proper administration of the juvenile justice. Though our higher judiciary, it is worth mentioning, is highly sensitised on the issue of child rights (except few cases) the situation of the subordinate judiciary is not up to the mark. Often the trial of juvenile appears at stake in the hands of the lower judicial functionaries.
Lack of juvenile courts
Lack of juvenile courts hinders extremely the proper administration of juvenile justice. At present there are only three juvenile courts working in Bangladesh. It is worth mentioning that Section 4 of the Children Act, 1974 empowers the High Court Division, Court of Sessions Judge, Court of Additional Sessions Judge, Court of Assistant Sessions Judge and the Magistrate first class to exercise the jurisdiction of the juvenile court. But besides regular functions these courts have little leisure to give a sympathetic look at the children brought before them. Resultantly working as a juvenile court becomes their optional work and the trial of the juvenile is conducted frequently in the regular court.
Lack of knowledge about juvenile justice and child rights
It is found that the Public Prosecutors have little knowledge that trial of a child should take place in a different court where the treatment of the juvenile would be appropriate. Often they do not know of the formation, procedures and the very objectives of the juvenile trial. On the other hand though the judges are supposed to possess a significant knowledge about juvenile justice and child rights they try to avoid it due to huge pressure of disposing of a lot of cases in a day. They find little opportunity to form a separate court for the juvenile. Having heard hundred cases in a day a judge must be too exhausted to show any kind of extra skill and care in discharging his judicial duties for a child's case.
Study shows that most of the magistrates have no legal education particularly on juvenile justice that precludes them to apply the special judicial approach when a child is brought before them. They are unaware of the special law like Children Act 1974 to deal with child offenders. This lack of knowledge leads them to follow the Code of Criminal Procedure 1898 instead of Children Act.
The police are part and parcel of juvenile justice system. But the irony of fact is that police are working without having least training and orientation on how to deal with a child offender. They only know that children shall be treated differently. That's why they rather try to avoid them which result in making them adult in the charge sheet. Lack of police personnel, lack of transport facilities, and lack of interest in the service also lead them to do so. Since a case is not disposed of in a day the investigation officer will have to be present every trial day before the court which, according to police, is a burden upon them. Resultantly police show least interest to protect children while they come into conflict with laws.
Lack of motivation to protect child rights
In an adversarial judicial administration situation like ours lawyers always try to win by no means his/her case. Lack of knowledge about child rights makes them unenthusiastic to protect the child or to give a sympathetic look towards the child in trial. Moreover, the patriarchal attitude leads our lawyers to humiliate a female child victim during cross-examination. For example, when a rape victim comes to the court the opposite lawyer asks her to say loudly in the open court that she has been raped. It is customary that the opposite party has to hear the allegation of the complainant from his/her own mouth. Moreover, lawyers as well as the court officers often allegedly humiliate the female child victim in the court. It is told that the court express least sympathy towards the child accused in order to maintain impartiality.
It is noteworthy that only the accused children are getting the advantage of the trial by the juvenile court. The Children Act 1974 provides that the juvenile courts will try all cases in which a child is charged with commission of an offence. The preamble of the Act also reveals that this Act is to “consolidate and amend the law relating to the custody, protection and treatment of children and trial and punishment of youthful offenders.” On the other hand section 2 (d) defines youth offender as the 'child who has been found to have committed an offence.' Therefore, the child who is victim of an offence is being deprived of the benefit of the juvenile trial. For example, if a female child is raped by an adult the victim is not getting the benefit of the juvenile court. Since the perpetrator is an adult the trial will have been taken place in the regular court or in the special tribunal. It is mentionable that one of the objectives of the juvenile justice is to keep the children out of the regular criminal proceedings, i.e. framing charge, examination, cross-examination. A victim child has to go through these proceedings in the regular criminal trial.
Absence of separate investigation cell
There is no separate investigation cell (police) to investigate the offence allegedly committed by a child, and giving charge sheet etc. Children are also not getting special care and treatment from law enforcing agency specially trained about child rights. It is seen that the police-citizen ratio is very poor and they have hardly enough time to take special care of the children. There are only 1,17,000 police personnel in Bangladesh. They have many duties to discharge. Seldom an adequate number of them can have the chance of attending the child offenders.
I would like to offer a host of recommendations instead of bringing a formal conclusion. Firstly, special training programme for the public prosecutors, lawyers, judges, court officers and police should be arranged in order to make them sensitised on the issue of juvenile justice as well as child rights. Secondly, as soon as possible separate juvenile courts need to be established in every district. Thirdly, special award for protection of child rights will make the concerned authority more enthusiastic to give special attention towards the children. And lastly, the issue of child rights and juvenile justice should be incorporated as one of the components in the training manual of the police, judges, lawyers, court officers and other concerned officials dealing with children.
The writer is Lecturer of Law, Stamford University Bangladesh. He could be reached at firstname.lastname@example.org. This article is based on a study conducted by the writer and his team members.