Human Rights monitor
Separation of Judiciary and state of Juvenile Justice: A case in Sylhet
Oli Md. Abdullah Chowdhury
Judiciary has been finally separated from executive at the beginning of November 2007 and expectation of people is mounting day by day. Ensuring justice for vulnerable people, particularly women and children would be a priority task for independent judiciary. Although the task is challenging, but it is morning that shows the day. In order to achieve a good result, there must be a good start.
Juvenile justice system is one of the areas where lots of work need to be done. Although there are actors playing different roles, judicial magistrates have a significant role in the administration of juvenile justice. Before the separation of the judiciary, magistrates were largely blamed for the maladministration of juvenile justice. Juvenile offenders though were brought before the court of magistrate, few of them had specialisation on juvenile justice. Age determination is a crucial step in the administration of juvenile justice, nonetheless.
Recently, a case was filed against a juvenile under Kotowali Model Thana of Sylhet Metropolitan Police under section 326/307/379 of Penal Code. Even though the juvenile was only 13 years old, police described the offender to be of 19 years in the FIR. Interestingly, his parents are married for 16 years and they accused police for misleading administration of justice.
The child was taken to custody on October 31, 2007. However, it took more than two weeks for the child to come out on bail. On the contrary to the spirit of UN Convention on the Rights of the Child (UNCRC), the child was handcuffed with an adult while appearing in the court of Chief Judicial Magistrate (CJM) in Sylhet.
Although Bangladesh is one of the earliest signatories to UNCRC, there are plenty of occurrences related to maladministration of juvenile justice. “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 of a constructive role in society”- stated in Article 40 of UNCRC. In reality, rights of the children who came in conflict with law were violated in a number of ways.
However, Children Act 1974 was enacted well before UNCRC came into force. Under Children Act 1974, children in conflict with law have a number of alternatives other than imprisonment. Before the separation of judiciary, magistrates though administered juvenile court, had little specialisation on of Children Act.
As observed in “Tracing the Missing Cord: A Study on the Children Act, 1974”, Professor Mizanur Rahman notes,” It is badly felt that there exists a huge gap between administration of justice and law enforcing agent. Police officials through their corrupt practices are frequently violating the basic rights of the juvenile offenders and remain untouched”. He further comments, “We don't know any single instance where a single Investigation Officer has been punished for this carelessness. Most of the police officers do not have knowledge about the Children Act”. (Page 45).
The child also became the victim of carelessness of police officer. Although juveniles are to be kept separated from adult in prison, laws are not practiced authentically. As mentioned in the aforesaid study, there are lots of instances where Investigation Officers have charged children of three or four.
However, High Court issued a Suo Moto (Suo Moto Order No. 248 of 2003) regarding children in conflict with law.
(1) Trial, if any, of all juvenile accused to 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 mater.
(2) Taking into consideration the provisions of Section 82 and 83 of the Penal Code, it is directed that the government do consider making prayers to the courts concerned for discharging the juvenile accused in appropriate cases. Order of discharge may also be sought for pursuant section 53 of the Children Act 1974.
(3) The government also do consider withdrawal of Juvenile accused from prosecution under Section 494 of the Code of Criminal Procedure in appropriate cases specially 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) Juvenile 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) Juvenile accused are to be transferred to correction homes and other approved homes with utmost expedition.
As a result, there had been significant progress in the field of juvenile justice as judiciary provided valuable directions. Actually, Mr. M. Idrisur Rahman, a learned Advocate, drew the attention of the court to the news published in “Daily Prothom Alo” dated 4 January that "400 children were in Dhaka Central Jail." Based on reports after enquires conducted by Human Rights Organization 'Odhikar' and Save the Children UK, the aforesaid news was published in the press. Then, the landmark Suo Moto came. On the basis of the direction provided in Suo Moto, human rights organisations advocated successfully to change policy and practices in the favour of children on a number of occasions. And things have changed now. Judiciary has been separated from executive since November 2007.
To recap all, most of the magistrates did not have specific legal educational background to administer juvenile justice until November this year. They had, naturally, deficiency of basic knowledge about the jurisprudence and law of juvenile justice. This is why they were often hesitant to apply their judicial mind while disposing cases of juvenile offenders. Since the separation of judiciary, expectation is naturally soaring high as judicial magistrates are mostly from specific legal educational background.
Oli Md. Abdullah Chowdhury is a law-graduate and currently working for FIVDB.