A Landmark judgment on Child Rights
Rajib Kumar Deb:
The apex court in the country has recently played the role of constitutional activism by pronouncing a landmark judgment, ever in the judicial era, in disposing of a matter accruing to Mobile Court Act, 2009 (MCA) and Children Act, 2013 (CA) declaring the sentences and convictions of 121 children, the most talked, to be nullity as being void ab-initio and without any lawful authority. This judgment came on a time when the activities of the Mobile Courts (MC) affiliate with the aggregate public faith and popularity, at the same time, their whimsical conducting ascends to so many constitutional discrepancies.
The background of the case is that a Bench of the High Court Division (HCD) comprising of Mr. Justice Sheikh Hassan Arif and Mr. Justice Md. Mahmud Hassan Talukder in the State Vs. Ministry of law, Justice and Parliamentary Affairs and others, (Suo-Moto No. 07 of 2019, Judgment dated 11.03.2020) on a sue motto rule issued a direction calling upon the respondents to show cause as to why the trials, conviction, sentences and detention of the aforesaid 121 children passed by nine MC run by the Executive Magistrates (EM) under the MCA should not be declared to be without lawful authority and are of no legal effect.
Upon the full hearing, it was argued by Mr. Md. Abdul Halim associated with Ms. Israt Hasan, Advocates, on behalf of the petitioner that the EM under the MCA has no jurisdiction to conduct trial of the children as CA prescribes special procedure thereof. It was also argued that the confessions as made thereof by the said children were recorded in a very inhuman way in violation of the constitution and enactment safeguards. It was further argued that same sets of witnesses have been used again and again in order for recording such confessional statements, and the names and addresses of the said witnesses have not been mentioned properly consequently and presumably the cases had been prepared in the office of the said magistrate who had never visited the said places of occurrences.
Having a critical examination of MCA in regard to the compliance procedure, the HCD found that the EM conducting MC shall have no jurisdiction to take cognizance and /or impose conviction of offences not triable by the Judicial Magistrate (JM) or Metropolitan Magistrate (MM) even-though they are included in the schedule to MCA, although, in that case, they may direct for FIR against the accused. If the charge, in the opinion of HCD, is not admitted, they may ask for explanation, if not found satisfactory, the accused may be sent to the competent court for trial. Placing that critical examination upon the scheme of the fundamental rights as prescribed from article 31 to 35 along with article 26 of the Constitution, the HCD with a critic view held that the EM concerned have not tried to understand that the said accused, below the age of 12, did have mental maturity to judge the consequences of their conducts and hence their convictions are directly hit by Section 83 of the Penal Code and as such they have become nullity in the eye of law.
On the question of constitutional safeguards guaranteed by article 33, the HCD took the view that there is nothing in the records of the concerned cases that the said children were given any chance to engage any lawyers, the reason being that the provisions of MCA do not allow an accused to engage any lawyer of his choice to defend himself. Therefore, it is a clear violation of fundamental right guaranteed under Article 33 of the Constitution.
On the question of public trial by an independent and impartial Court or tribunal guaranteed by sub-article (3) of Article 35 of the Constitution, the HCD took the view that the very term “executive”, as used before the term ‘Magistrate’ in the cases concerned, suggests that the magistrates concerned are part of executive organ of the State which plays its role as the prosecutor, were not independent and/or impartial individuals and hence there was no scope for public trial in respect of the said children. The manner in which the said trials were conducted also suggests that the said children were also compelled to give confessional statements in violation of the fundamental rights guaranteed under Article 35.
On the question of complying with procedure, as prescribed by CA, like conducting trial by the district judges, informing their parents or probation officer about their arrest, taking recourse to ‘diversion’ in alternative; release on bail, etc. admittedly, none of the above procedures, in the opinion of HCD, have been followed by the EM in the cases concerned. This court didn’t find anything in the MCA which has empowered the EM to conduct trial of a child accused.
On the question of protection of law guaranteed by article 31, CA as being the subsequent special law, will override, in case of any conflict, MCA and hence the later cannot confer jurisdiction on the EM even to conduct the trial of the children. Therefore, the children concerned in these cases have been deprived of their fundamental rights to be treated in accordance with law and only in accordance with law as guaranteed by Article 31 of the Constitution.
Scrutinizing the respondents’ views defending and favoring the circumstances led to the sentences and convictions in all those MC cases, the HCD held that MC cannot have any jurisdiction to take cognizance and conduct trial of the offences under Narcotics Act (NA) as the tribunal, consisting of additional judges, made thereof, are the perfect forum of law. The HCD with logical view held that the legislators did have in their minds that after enactment of the CA, any child, accused of offences under the NA, could only be dealt with under the provisions of the CA and while allowing such trial by the MC, which is considered as “unrealistic proposition”, Section 57 has overridden any contrary provisions in the NA only. The HCD took the view that MC run by the EM, created huge confusion amongst public, are continuously functioning and sentencing numerous numbers of people every day merely on the strength of the stay order of the HCD judgment declaring some provisions of the instant Act to be unconstitutional.
Placing a calculative view upon the time and place of recording the confessions in the two occurrences, the HCD took the view that it was humanly impossible to do fourteen works with the distance of 4.12 km within 21 minutes and held that this impossibility is reflected in each and every case in hand. Referring to a quotation “Injustice anywhere is a threat to Justice everywhere”, the HCD observed that “the prosecutor himself has become investigator and judge, the judge himself has conducted the trial in such manner that it will shake the conscience of any judicious mind”. Also referring to Martin Niemoller who expressed frustration against the non-protesting German intellectuals (including himself) as they were not raising their voices against Nazi injustices, the HCD viewed with apprehension “If this sort of trials is referred to in any international conference by any jurist, will the image of Bangladesh legal system not be tarnished irreparably?”
To conclude, the principles set out in the judgment are reflected in the proactive role with the wise saying “…they lack proper training. Of course, we don’t expect such quality from them like a trained judicial officer. A doctor cannot be asked to do the job of an engineer”.
Rajib Kumar Deb: Senior Judicial Magistrate; Cox’sbazar