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Juvenile Justice System, a collision with human rights

Published : Saturday, 13 July, 2019 at 12:00 AM  Count : 340
Jobaira Nasrin Khan

The core essence of juvenile justice system is that the whole procedure must be held in an amicable atmosphere, separated from the traditional system. However still minors are tried with adults through regular courts and most notably people are in fact not enlightened with the scheme when a child is in the conflict with law. Even supposing under international human rights law a child is made eligible to special care and assistance and also has been conferred a right to security as well as to exemption from inhuman, cruel and degrading treatment but deplorably a child is not treated 'specially' when they are tagged with the caption'criminal' in Bangladesh.

So who is being considered to be a 'child'? According to the Children Act, 2013 and the Domestic Violence (Prevention and Protection) Act, 2010 up to the age of 18 years anyone shall be acknowledged as a child. Besides under the Penal Code whatever is done by a child under 9 years and a child above 9 years and under 12 (in case if s/he has not obtained enough maturity) will not amount to offence. Thus in case of considering the age mental, intellectual and emotional maturity is always a matter of fact.

Article 28(4) of the Constitution of Bangladesh has given authority to the State to make special provisions in support of children and factually we have statutes and provisions in favor of children however mostly unworkable. Some of the statues concerning children are the Children Act, 2013, Penal Code, Code of Criminal Procedure, Nari o Shishu Nirjaton Domon Ain. Bangladesh is again required to adopt the measures following the Convention on the Rights of the Child (CRC).

In the fifth chapter of the Children Act it has been detailed about the child court and procedure that a child should be tried apportioned from typical criminal courts, in a convenient environment along with suitable facilities.

Moreover, under the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") an exclusive strategy has been prescribed in pursuance of the structure and function of the juvenile court. Well, let alone the facilities, practically children are not even tried in a separate court rather oft tried collectively with adults and are maltreated particularly if s/he is an older teen or accused of any grave crime.

Article 13 of the CRC has stated that 'The child shall have the right to freedom of expression' and its her/his choice that how they are going to express (i.e. orally, in writing, print, form of art or some other disclosure). Under Rule 14 of the Beijing Rules, it has been delineated that the proceedings shall held in such an ambience where a minor can express her/himself spontaneously by participating therein. Although section 22 of the Children Act, 2013 has ensured children's participation at all levels of the proceeding considering as their right. Yet the existing statue does not observe 'the child's right of expression' during the proceedings in the court.

Now going through the scheme of arresting a child, under international regulations, Article 37 of the UNCRC, is stated that "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 lastresort and for the shortest appropriate period of time".According to the national context, under the 2013's Act, first of all no child under 9 years shall be arrested. Now if any child under the Act is arrested (which must not be preventive detention) and is brought to the police station, the police officer will inform the parents and probation officer.

Regrettably hardly any probation officer can be found and even if there's any officer to aid the dependent children, they are loaded with additional duties. In fact, parents are as well not notified properly. Back to 2016, a 14 years' boy got bail after 2 years of his arresting and in this period his parents did not know his whereabouts. That is why no one could pray for his bail. Importantly a child is imprisoned with the adults, in an adverse sphere which is absolutely contradictory with the 2013's Act where it is stated that"…the accused child be detained in a certified institution until his age is 18 (eighteen) years, instead of detaining him in such imprisonment" or can be sent to Child Development Centre.As all these infrastructures are not operated properly and so a child's liberty is at stake. 
Now in case of sentencing a minor, it is still every now and then arbitrary and illegal. In conformity with the CRC, Article 37, no child below 18 years shall be subjected to punishment, capital punishment and death sentence.

Furthermore, the Beijing Rules has specified various disposition measures under Article 18. In point of fact, under our legislation, the Children Act, 2013 it has been clearly stated that "…no child shall be sentenced to death, life imprisonment or imprisonment" but if s/he is found guilty punishable death or life imprisonment then s/he will be detained in the child development center for a minimum of 10 years but not less than 3 years. All the procedures and directions in case of sentencing in consideration of a juvenile has been expressed under the Act.

Functionally children are detained with adult prisoners, placing them in a negative social sentiment.Where our Constitution says that no one who is arrested shall be detained in custody without being informed there a child is kept in ordinary prison rather than in any CDC not even being notified by parents properly.The calamity is that they are several times even abused and tortured. Additionally, a minor aged 16-18 years are not even considered as a 'child' and are subjected to adult sentences. Thus as a child, her/hisspecial rights are being violated arbitrarily and unlawfully.

As indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth". So the view of juvenile justice is not to penalize but to rectify a child involved in the conflict with law. Bearing this concept more juvenile courts should be established in each district of Bangladesh with the guarantee of proper enforcement of the Children Act, 2013.
The writer is a student of Law,
BRAC University

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