May 22, 2013 | 08:05 AM (BD Time)
22 May, 2013 Wednesday
Children justice system in Bangladesh
Justice M Imman Ali:
(From previous issue)
Rule 4(5) provides how the Court is to deal with the child upon finding him guilty. The wording of the order passed by the Court often speaks a volume about the learned trial Judge's understanding of the requirements of the laws relating to children. The sentence passed is often indicative of the mechanical way in which a trial involving children has been held and decided.
Sanction provided by law
Sections 51 to 54 provide how the court should deal with a child convicted of an offence. What punishment may or may not be given has been discussed at length by the High Court.
When passing sentence the judge must keep in view the fact that the aim of the law is to bring the deviant child back to a way of life considered by society as acceptable and normal. The purport of the law is to give the child the benefit of the system to assist him in life by providing him with education and training and to otherwise rehabilitate him. To this end, the law provides suitable means for telling the child that what s/he did is not right and should not be repeated. Hence the more lax regime provided by section 53 and Rule 12.
Take assistance from the international instruments
The instruments, mentioned above, provide guidelines as to how children should be dealt with when they come into contact with the law, either as offenders, in need of care and protection, victims or witnesses. The underlying theme of all instruments is to ensure that children do not face the rigours of the criminal justice system and that they should not be kept in any kind of detention, and if detention is felt inevitable then it should be considered only as a measure of last resort and for the shortest appropriate period of time. [Article 37(b) CRC]
Article 39 CRC enjoins the State to provide for the recovery and reintegration of a child of any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment.
Article 40.3 CRC enjoins the State to establish laws, procedures, authorities and institutions specifically applicable to children alleged as, or recognised as having infringed the penal law, and in particular to have measures for dealing with such children without resorting to judicial proceedings.
Article 40.4 CRC suggests dispositions such as care, guidance and supervision orders; counseling; probation; foster care; education and vocational training programmes and other alternatives to institutional care.
Thus international law requires States to have system for diverting from the juvenile and criminal courts and also from detention in prison or other forms of institutionalised care. However, the present trend is to advocate more multidimensional investment for a greater long' term benefit for individuals as well as the community at large.
This is envisioned by ensuring the involvement of the local community and more particularly by motivating and empowering the parents to take better care of their chilren, Article 27.3 provides that State Parties shall take appropriate measures to assist parents and others responsible for the child to maintain its standard of having and shall provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing. Clearly the aim is to build the capacity of the family to cater for the child's needs.
Systems other than judicial proceedings
The Beijing Rules, 11.1 provides that juvenile offenders shall be dealt with, wherever possible, without resorting to formal trial. Trial within the criminal justice system tends to stigmatise children and is liable to leave an indelible impression on their mind for the rest of their lives. Rule 11.2 enjoins that Police, Prosecution or other agencies shall be empowered to dispose cases without formal hearings. In many countries there is provision for specially trained police unit to deal with children, for example D11 in Malaysia, the Youth Offending Unit in New Zealand, where 70% of cases involving child offenders are dealt with by the police and criminal trial is avoided. Police use restorative justice concept by confronting the offender with the victim, who might settle the matter after due reparation and apology. This may be termed an optimum solution as the matter is settled without leaving any acrimony or want for reprisal.
In response to Article 40.3(b) CRC many countries have set up informal methods of disposition, such as Family Group Conferencing (FGC) in New Zealand. There is an official coordinator who convenes a meeting of the child offender and his parents with the victim and any other person whose presence is deemed beneficial. When the question of placing the offending child in the care of anyone other than the parent comes into the equation, then other close relatives of the child are included in the FGC, so that the family can decide what course of action would be best suited for the child.
In Scotland there is the system of hearing before a Children's Panel, comprising three trained persons from the community who decide on the best course of action for the child. In Malaysia, the 'Court for Children' comprise one Magistrate and two other lay persons, of whom one must be a woman; and in India the 'Juvenile Justice Board' shall comprise a Magistrate, who must have knowledge or training in child psychology or child welfare, and two social workers of whom at least one must be a woman and the social workers must have been actively involved in health, education, or welfare activities pertaining to children for at least seven years.
Diversion from the formal judicial process is also possible by the intervention of Prosecution and/or the Judge.
There are a large variety of dispositions available to the competent authority allowing flexibility in order to avoid institutionalisation so far as possible:
(a) care, guidance and supervision orders:
(c) community service orders;
(d) financial penalties, compensation and restitution
(e) intermediate treatment and other treatment orders;
(f) orders to participate in group counselling and similar activities;
(g) orders concerning foster care, living communities or other educational settings.
The scope of implementing some of the dispositions mentioned above already exists in Bangladesh, whereas the others might be profitably utilised if enabling laws were enacted. Thus, for example, community service orders could be introduced in our country as a way of disposition which would avoid institutional care for the child and involve the community in caring for the children.
There are many dispositions suggested in the Tokyo Rules, which may be of benefit, e.g. use of the community in dealing with the children:
The Tokyo Rules provide for a set of basic principles to promote the use of non -custodial measures. They intend to promote greater community involvement in the management of criminal justice, specifically the treatment of offenders, as well as to promote among offenders a sense of responsibility towards society [Rule 1.1 and 1.21.] Consideration shall be given to dealing with offenders in the community avoiding as far as possible resort to formal proceedings or trial by Court [Rule 2.5]. Public participation should be encouraged as it is a major resource and one of the most important factors in improving ties between offenders undergoing non-custodial measures and the family and community [Rule 17.1]. Public participation should be regarded as an opportunity for members of the community to contribute to the protection of their society [Rule 17.2] The possibility of utilising the community in Bangladesh is immense since the ex
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