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Negligence of authorities hinders the very purpose of juvenile justice system
Sheikh Hafizur Rahman Karzon
The society of Bangladesh is passing a transition from
1950s. An agro-based village oriented society started to transform into
an urban society causing the emergence of single parents' family. Urban
life with its anonymity, complicacy and material infrastructure offers
more opportunity for criminal activities. That is identified as one of
the major causes for high rate of criminality including extensive juvenile
delinquency.
Continuous famine in some regions, unemployment, bringing
down banks of rivers and increasing poverty caused large-scale migration
of people from village to city. The migrated people with their family
members took shelter in slum areas and remain deprived of basic civic
amenities. Criminal activities are taking strong hold by taking advantage
of unemployment, deprivation and vulnerable economic condition of slum
people. Absence of strong parental control and lack of opportunity to
get education are pressing the juveniles of slums to have more involvement
with criminal activities.
Extensive satellite culture has some impact on the mindset
of the young folk in no way that is always functioning positively. All
these social conditions are contributing heavily for increasing delinquency
rate among the juveniles.
Problem
of definition of child
The United Nations Convention on the Rights of the Child (CRC) defined
child as any person under the age of 18 years unless under the law applicable
to the child, maturity is attained earlier. Bangladesh ratified the Convention
on the Rights of the Child in November 1989. In Bangladesh there are a
number of laws which defined a child. These laws are conflicting regarding
the age of children. Some described a child as a person below 12 years,
others state below 14 years and some defined them as a person below 18
years of age. But the Children Act, 1974 defined a child as a person under
the age of 16 years. Article 2(f) provides that, "Child" means
a person under the age of 16 years, and when used with reference to a
child sent to a certified institute or approved home or committed by a
Court to the custody of a relative or other fit person means that child
during the whole period of his detention notwithstanding that he may have
attained the age of 16 years during that period.
Juvenile
justice system in Bangladesh
The Children Act, 1974 is the substantive law for juvenile offenders and
their treatment. The law was made to consolidate and amend the laws relating
to the custody, protection and treatment of children and trial and punishment
of youthful offenders.
Problem
of determining criminal responsibility
As per section 82 of the penal code, the age of criminal responsibility
in Bangladesh is above seven years of age. But the Children Act defines
a child as a person under the age of 16 years of age. Section 52 of the
Act provides that, where a child is convicted of an offence punishable
with death, transportation or imprisonment, the Court may, if it considers
expedient so to deal with the child, order, him to be committed to certified
institute for detention for period which shall be not less than two and
not more than ten years, but not in any case extending beyond the time
when the child will attain the age of eighteen years. Penal Code and the
Children Act, 1974 are contradictory. The age of criminal responsibility
is not clear from the above mentioned laws. The minimum age of criminal
responsibility requires clarity.
Assuming above seven years as the age of criminal responsibility
in Bangladesh the government functionaries are dispensing their activities.
When any child of above seven years commits any punishable offence then
they are arrested by the police. The police do not consider street children,
child prostitute or delinquent juvenile as children and are treated them
like adult offenders.
Arrest,
bail, detention and discharge
Where a person apparently under the age of sixteen 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 to which such person
is brought may release him on bail, if sufficient security is forthcoming,
but shall not do so where the release of the person shall bring him into
association with reputed criminal or expose him to moral danger or where
his release would defeat the ends of justice. [Section 48, the Children
Act, 1974] Where such a person is not released under section 48, the officer-in-charge
of the police station shall cause him to be detained in a (i) remand home
or (ii) a place of safety until he can be brought before the court. A
court, on remanding for a trial a child who is not released on bail, shall
order him to be detained in (i) a remand home or (ii) a place of safety.
[Section 49, the Children Act]
Immediately after the arrest of a child, the officer-in-charge
shall inform to the Probation Officer of such arrest to enable the said
probation officer to proceed forthwith in the matter of the juvenile.
No child shall be charged with, or tried for, any offence together with
an adult. Police officer has to submit separate charge sheet and concerned
magistrate has to conduct separate trial when a juvenile has been charged
with any offence. [Section 50 and 6 of the Children Act, 1974]
No child shall be sentenced to death, transportation or
imprisonment. Provided that when a child is found to have committed an
offence of so serious a nature that the court is of opinion that no punishment,
which under the provisions of this Act it is authorised to inflict, is
sufficient or when the court is satisfied that the child is of so unruly
or of so depraved character that he cannot be committed to a certified
institute and that none of the other methods in which the case may legally
be dealt with suitable, the court may sentence the child to imprisonment
or order him to be detained in such place and on such conditions as it
thinks fit.
Alternative
measures
A court may, if it thinks fit, instead of directing any youthful offender
to be detained in a certified institute under section 52 order him to
be (a) discharged after due admonition, or (b) released on probation of
good conduct and committed to the care of his parent or guardian or other
adult relative or other fit person on such parent, guardian, relative
or person executing a bond, with or without sureties, as the court may
require, to be responsible for the good behaviour of the youthful offender
for any period not exceeding three years and the court may also order
that the youthful offender be placed under the supervision of a Probation
Officer. If it appears to the court on receiving a report from the probation
officer or otherwise that the youthful offender has not been of good behaviour
during the period of his probation, it may, after making such inquiry
as it deems fit, order the youthful offender to be detained in a certified
institute for the unexpired period of probation.
Difference
between text and practice
The purpose of juvenile justice system is not to penalise the juveniles,
but to make them understand their mistakes and afford them an opportunity
to rectify themselves. Any confinement or detention in a remand home,
place of safety or correction centre is a major barrier for the rectification
of juveniles. Because detention within an institute creates guilty feelings
among the juveniles and people also treat them as offender. Considering
this attitude of society the Children Act, 1974 gives power to the officer-in-charge
of the police stations to forward the juveniles on bail and to the magistrates
to order the juveniles to be released on probation of good conduct and
committed to the care of the parents or any other relative even after
the conviction of the juveniles. But unfortunately these alternative measures
remain unexhausted due to lack of motivation, ignorance of magistrates
and unavailability of parents or reluctance of parents. Deprivation of
liberty of juveniles by sending them to the correction centre should be
the last resort and should be used in the rarest of the rare cases. But
deprivation of liberty is extensively used which is frustrating the purpose
of juvenile justice.
The provisions to treat the children separately after
arrest, to submit separate charge-sheet and to conduct separate trial
in a homely atmosphere are not maintained due to ignorance of law, proper
motivation and an attitude to avoid extra burden by the police officers
and magistrates.
Concluding
remarks
The transition of society, complicacy of urban life, absence of parental
control and care, impact of satellite culture and overall malfunctioning
of society cause to develop deviant juvenile subculture in Bangladesh.
Implementation of law by the main actors, exploitation of alternative
measures, and all out efforts of societal people of different strata are
required to combat this problem.
Sheikh Hafizur Rahman Karzon is a Lecturer, Department of
Law, University of Dhaka.
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