May 23, 2013 | 03:50 PM (BD Time)
23 May, 2013 Thursday
Comprehensive children justice system in Bangladesh
Justice M Imman Ali:
(From previous issue)
Howerver, the learned Judges, Magistrates and the conscious citizens should stop to realise that the children are being preyed upon and used by the criminal elements in society. Yet again, it is the scourge of poverty which exposes the young and needy as easy targets to be used to achieve the heinous goals of the 'elite' criminals and gangs.
Ways to ameliorate the situation
The international instruments provide many guidelines as to how to deal with children when they come into contact with the law.
The CRC provides a large body of directives which are bound to be followed by signatory States. The following articles are relevant, particularly with regard to children who come into conflict with the law:
Art. 40(3)(a) - states to establish law setting a minimum age below which a child is not capable of committing an offence;
Art. I-definition of child to include any human being below the age of 18 years;
Art. 37(a) - neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age; and
Art 37(b) - detention or imprisonment must be used as a last resort and for the shortest appropriate period.
Sections 82 and 83 of our Penal Code have been duly amended, incorporating the provisions with regard to age of criminal responsibility.
It has been observed in a recent judgment of the High Court Division that Bangladesh, which ratified the UNCRC in August 1990, is duty bound to reflect the provisions contained in the various articles of the UNCRC in our national laws.
Duty of the Police
Under the Act duties have been placed on the shoulders of the Police by sections 13,50 and 48. But we have found so many instances of the Police ignoring the law. Perhaps the solution would be to have a specially trained police force sensitised to the needs of children, as suggested by the High Court.
Duty of the Probation Officer
The pivotal role in the justice delivery system concerning children is played by the Probation Officer. Essentially s/he is appointed for the purpose of assisting the Court to gather information regarding the background of the child whether delinquent, neglected or victim - in order to enable the Court to "secure proper care and protection of the child by parent, guardian, relation or any other fit person and to pass any other order which is in the best interests of the child. Again, we often face allegations that the Probation Officers are not available when needed. It cannot be denied that 23 Officers for 64 districts is totally inadequate. Moreover, there is need for the Probation Officers to be properly trained and sensitised. They must be available round the clock. In the case mentioned above, the learned Magistrate complained that it was a weekend and no Probation Officer was available and so, he sent the children to 'safe custody' in the District Jail.
Duty of the Court
The Court has the overall duty to see that all the other agencies, such as Police and Probation Service have acted properly in dealing with the youthful offender, if he/she appears to be a child. In addition the Court has the duty to assess the age, conduct the trial in accordance with the provisions laid down in sections 7 to 13 of the Act and keeping in mind also the requirements of the Children Rules, 1976. The essential element of the trial is that the child shall not be exposed to the atmosphere of a criminal trial with all the grim and awesome face of officialdom and courtroom paraphernalia. The Rules provide specifically that the atmosphere must be home-like and there should not be a close police guard. The child must be put at ease, keeping her/him in the company of a relative, friend or Probation Officer, giving assurance that all efforts will be made to help her/him.
Section 6 of the Act categorically forbids joint trial of any child with an adult. In this regard we stand ahead of some developed countries where, for certain serious offences, joint trial is allowed. In my humble estimation, joint trial militates against one of the most important themes of the international instruments concerning children - to screen and protect children from exposure to other adult accused and from exposure to the rigours of criminal trial, stigma, negative and damaging publicity etc. In the case of a serious offence triable only by a Court of Sessions, section 5(3) provides that the case shall be transferred to the Court of Session for trial in accordance with the procedure laid down in the Act, and section 8 provides for a separate trial of adults with the case(s) of the child(ren) being transferred to a Juvenile Court.
Decision of the Court
The goal of the international instruments is that States should formulate laws and sanctions with a view to reformation and rehabilitation of the child. Hence there is directive not to 'punish' any child. And indeed the word 'punishment' appears only once in our Children Act - to specify what punishment may not be inflicted upon a child.
The aim, purport and philosophy of the laws relating to children are all the more apparent from section 71, which provides that the words 'conviction' and 'sentenced' shall cease to be used in relation to children or youthful offenders dealt with under the Act.
(To be continued)
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