THE juvenile justice system all over the world has undergone changes over the years. The changes are revolutionary in nature and feature, so to speak. The prime object of juvenile justice is to protect children from recidivism and ensure their rehabilitation as well as smooth reintegration within society. Moreover, a proper juvenile justice development programme is indispensable in efforts to bring up juveniles as worthy citizens. Juveniles are the future leaders of a nation so it is necessary to protect them from stigmatisation and to prevent delinquency.
In Bangladesh, juveniles have some ‘fundamental rights’ ensured by Article 28(4) of the constitution. However, there is no comprehensive juvenile justice system in Bangladesh. Instead, different laws contain provisions regarding children in conflict with the law and this often leads to confusion in regards to which law needs to be applied.
The fundamental rights to life, personal liberty, and equal protection of law, protection against arbitrary arrest and to speedy and fair trial as guaranteed by the constitution under Article 31, 32 and 35(3) applies to all citizens. However, Article 28(4) also encourages state to make special provision in favour of women or children or other backward sections of citizens.
According to section 82 of the Code, a child under the age of 7/9 years is protected from any action against his/her criminal act. Section 83 states that if a child between 7/9 and 12 years of age is to be convicted of an offence, it must be proved that he/she had ‘sufficient maturity of understanding to judge the nature and consequences’ of the act perpetrated.
In 2004 the age of criminal responsibility was increased from 7 to 9 years providing protection to children less than 9 years of age from any judicial proceedings so that they are not criminally liable for any crimes committed below 9 years of age.
The Children Act is the substantive law for juvenile offenders and their treatment. It deals with both children in need of protection as well as children in conflict with the law. It deals with custody, protection and treatment of children and trial and punishment of youthful offenders.
Section 2(f): A child means a person under the age of 16 years.
Section 66: Whenever a person is brought before any criminal court … and it appears to the court that he is a child, the court shall make an inquiry as to the age of that person and, for that purpose shall take such evidence as may be forthcoming at the hearing of that case, and shall record a finding thereupon, stating his age as nearly as may be.
According to the laws…
Section 48: Where a person apparently under the age of 16 years is arrested on a charge of non-bailable offence and cannot be brought forthwith before a court, the officer-in-charge of the police station may release him/her on bail.
Section 49: Where a person apparently under the age of sixteen years having been arrested is not released on bail, the officer-in-charge of the police station shall cause him/her to be detained in a remand home or a place of safety until he can be brought before a court, on remanding for trial a child who is not released on bail, shall order him to be detained in a remand home or a place of safety.
Section 50: Immediately after the arrest of a child, it shall be the duty of the police officer or any other person affecting the arrest to inform the Probation Officer of such arrest in order to enable the Probation Officer to proceed forthwith in obtaining information regarding the antecedents and family history and other material circumstances likely to assist the Court in making its order.
Section: 13(2): Where the child is arrested, the officer in charge of the police station to which he/she is brought shall forthwith inform the parent or guardian of such arrest, if found and shall also cause them to be directed to attend the court before which the child will appear and specify the date of such appearance.
The trial of juveniles shall be held in camera, i.e. only people directly involved in the case and the officers of the court can be present during the trial. The Court may also ask people not involved with the case to withdraw.
Section 16 &17: The report of Probation Officer or any other report considered by the Court under section 15 shall be treated as confidential and publication of report of proceedings, photograph of child leading directly or indirectly to the identity of such child is prohibited and punishable by a fine of Tk 200 or imprisonment for 2months.
Section 70 & 71: Words ‘Conviction’ and ‘Sentence’ cannot be used in relation to children and when a child is found to have committed any offence, the fact that she/he has been so found shall not operate as a disqualification for any office, employment or election under any law.
‘Place of safety’ includes remand home, or any other suitable place or institution and where such institution is not available, in the case of male children only, a police station in which arrangements are available or can be made for keeping children in custody separately from other offenders.
State Parties shall ensure that:
1. No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
2. No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
3. Every child deprived of their liberty shall be treated with humanity and the inherent dignity of human person, in a manner, which takes into account the needs of the persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child›s best interest not to do so and shall have the right to maintain contact with his/her family through correspondence and visits, save in exceptional circumstances;
4. Every child deprived of his/her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his her liberty before a court or other component, independent and impartial authority, and to a prompt decision on any such action.
Moreover, juvenile justice in a broader sense not only includes the treatment of children when they come in conflict with the law, but also involves the root causes of the offending behaviours and the measures to prevent them. In Bangladesh, although the Children Act is the principal law, it does not provide a particularly sound basis for the development of a child-centred, rights-based juvenile justice system. Many of the hallmarks of modern juvenile justice legislation — diversion, mediation, restorative justice, explicit preference for community based rehabilitation, community and NGO involvement, clear separation between child offenders and children in need of protection — are lacking. So, there is a strong need for an effective regulatory regime to assure access to justice in juvenile matters and the judiciary in Bangladesh has a long way to move towards adopting the notion and principles of juvenile justice at the national level.
Mushuda Zaman Soby is a lecture at the Department of Law, UITS.