Need for comprehensive legal reform to juvenile justice system
Dr. Nahid Ferdousi
Photo: J-witness La.com
Juvenile delinquency is a serious issue of concern in Bangladesh as in many countries in the world. But the juvenile justice system in Bangladesh has not yet been developed. There was hardly any focus on remarkable judicial attention for juveniles before 1990. Though the Children Act, 1974 and the Children Rules, 1976 are considered as the basic law for juvenile justice, they are not comprehensive. From 1990, the Government has incorporated the rules of the Convention on the Rights of the Child (CRC), 1989 in various national policies, but the proper implementation has not yet been found. Positive legislation requiring fulfillment of physical, moral and intellectual development of children are absent in Bangladesh. After 41 years of liberation of Bangladesh, the law has not substantially changed to protect juveniles and prevent delinquency.
Due to insufficiency of juvenile courts in every division in Bangladesh most of the time juveniles are treated under the ordinary courts along with adult criminals. As a result, children are sent to jail instead of correctional institutions. From 2003, the High Court Division of the Supreme Court of Bangladesh issued a number of Suo Moto Orders with various directions to implement the provisions of the Children Act, 1974. To implement the Suo motu Order, National Task Force (NTF) were constituted at district and upazilla levels to study the problems of juveniles comprehensively but their recommendations remain generally unimplemented. The state of the juvenile justice system suffers enormously and does not conform to international standards of juvenile justice. There is no mechanism in the legal system of Bangladesh to incorporate directly the principles of international conventions and rules at national levels. Unfortunately, separation of judiciary in 2007 has not significantly changed the realm of juvenile justice system in Bangladesh. Child-friendly justice system is mostly ignored. Consequently, juveniles are deprived of their right to return to normal life.
On Legal Framework
Since independence protections are ensured for children by the Constitution of Bangladesh. In particular, Article 27, 28 and 31 of the Constitution lays down the general principle regarding the protection of children and others from all forms of discrimination. Article 27 of the Constitution of Bangladesh declares that all citizens are equal before law and are entitled to equal protection of law. So, children are no exception of the constitutional guarantee. Article 28 of the Constitution provides that (i) the state shall not discriminate against any citizen only on grounds of religion, race, caste, sex or place of birth, (ii) women shall have equal rights with men in all spheres of the state and public life, and (iii) no citizen shall only on grounds of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort or admission to any educational institution. Article 31 also guarantees everyone the right to life, liberty and freedom from arbitrary detention.
The Children Act, 1974 and the Children Rules, 1976 contain the seeds of the juvenile justice system in Bangladesh. But till 1990, the Children Act, 1974 has not been fully implemented. Moreover, it is very important to remember that this Act has been passed 38 years ago. The major problem of the Children Act is that it does not prescribe a full-proof method of age determination, i.e., who is going to ascertain/identify the age of the child. The definition of child as offered by the Act is not consistent with the Convention on the Rights of the Child (CRC), 1989. According the Act, age limit of children is fixed in 16 years and CRC prescribed below 18 years. Moreover, the Children Act, 1974 does not clarify whether the juvenile court can try matters involving the Special Powers Act, 1974, the Anti Terrorism Act, 1992, the Arms Act, 1878, the Explosive Substances Act, 1908, the Nari O Shishu Nirjaton Domon Ain, 2000 (Women and Children Repression Prevention Act, 2000). Therefore, children committing offences under the above Acts are tried by the ordinary court. The ordinary courts can try child offender under these laws and has set different punishment and trial procedures without keeping in conformity with the Children Act, 1974. The Act has no prescribed definition of torture, cruel, degrading or inhuman punishment or treatment and fails to provide sanctions against those types of treatments while in institutional custody or care. The Act does not set time limits for the privilege of juvenile matter at different stages (remand, inquiry, investigation, framing of charge sheet, providing bail, delivery of judgment, removal to certified home etc.) so as to ensure prompt delivery of justice. Although the Act makes special provisions for uncontrollable children, the mechanism of assessment of uncontrollable behaviour is absent. The Government may at any time, order the discharge of delinquent children from a correctional institution. But the meaning of the word 'any time' is not clear. There is also no specific procedure for releasing children from correctional institutions.
The Children Rules, 1976 are also restricted for the inmates of correctional institutions and thus fall far well short of international standards. Corporal punishment is officially sanctioned under the Children Rules, which permit 'canning not exceeding ten strips' as a punishment for violating anyone of the 30 stipulated rules of conduct. It clearly contradicts with the national and international laws.
Apart from the Act and Rules, other provisions of the Special Powers Act, 1974, the Arms Act, 1887, the Nari O Shishu Nirjaton Domon Ain, 2000 (Women and Children Repression Prevention Act, 2000) etc. were passed which empowered the police to arrest delinquent on suspicion of anti-state activities as well as take measures to stop heinous offences against women and children. Similar to other penal laws six Metropolitan Police Ordinances such as the Dhaka Metropolitan Police Ordinance, 1976, the Chittagong Metropolitan Police Ordinance, 1978, the Khulna Metropolitan Police Ordinance, 1985, the Rajshahi Metropolitan Police Ordinance, 1992, the Sylhet Metropolitan Police Ordinance, 2006, and the Barisal Metropolitan Police Ordinance, 2006 for seven divisions prohibits juvenile offences. These Ordinances provide punishments for offences committed by the juvenile delinquents such as eve teasing, suspicious circumstances between sunset and sunrise etc. empowered the police officers to arrest without warrant.
However, these penal laws do not lead the best interest of the juveniles in a uniform way. Most of these laws on juveniles are derived from colonial period and a few passed after the independence of Bangladesh. Age of juveniles in different laws is a serious problem in Bangladesh. Different legislations provide different age limits of juveniles. Most of the laws related to children allow punishment of juvenile delinquents and non child-friendly. These laws are inconsistent with international laws and the Convention on the Rights of the Child (CRC), 1989. CRC clearly forbids torture, capital punishment and life imprisonment without the possibility of release for all persons below 18 years. Thus, Bangladesh still faces different drawbacks to ensure the rights of the juveniles due to lack of effective laws and its appropriate uses. (To be continued)
The writer is Assistant Professor of Law at Bangladesh Open University.