Rights of the children in conflict with the law
Soeb Aktar: The question ‘Who is a child?’ has to be addressed in light with international and national legal measures before discussing the rights of the children in conflict with the law. Article 1 of the United Nations Convention on the Rights of the Child, 1989 defines a child as every human being below the age of 18 years. In Bangladesh, in The Children Act 2013 the same view has been taken and child is defined as all persons upto the age of 18 years.[1]
There are many international instruments which address the rights of the children from the international legal field. From all of them, the United Nations Convention on the Rights of the Child (hereinafter called as UNCRC) is highly appreciated for its provisions for the protection of the rights of the children. The world leaders in 1989 decided that people under 18 years old often need special care and protection that adults do not. From this realization, they incorporated the ‘Convention on the Rights of the Child, 1989’ which is the first legally binding international instrument to incorporate the full range of human rights for children including civil, cultural, economic, political and social rights.[2] The rights incorporated in the UNCRC are inherent to the human dignity and harmonious development of every child. In this Convention four core principles are spelled out and they are- (1) Non-discrimination, (2) Devotion to the best interests of the child, (3) The right to life, survival and development, (4) Respect for the views of the child.[3]
In 1990, Bangladesh ratified the UNCRC which is complemented by relevant international standards such as the UN Guidelines for the Prevention of Juvenile Delinquency, the UN standard minimum Rules for the Administration of Juvenile Justice and the UN Rules for the Protection of Juveniles Deprived of their liberty.[4] By ratifying it, the government of Bangladesh has taken the obligation to give effect to the convention by means of laws, policies and practices designed to further its goals.
Before the ratification of this convention there had been a special law named ‘The Children Act, 1974’ which dealt with the rights of the children. However, for better protection and to be updated with the Convention on the Rights of the Child, Bangladesh has incorporated a new law titled ‘The Children Act 2013’ repealing the old one. In this act the rights of the child are prescribed and the method of treatment towards the child is also spelled out. However, the main concern of this writing is to find out the rights that are provided for the children in conflict with the law.
The Children Act 2013 defines ‘child in conflict with the law’ in the way that any child who is, subject to the provisions of sections 82 and 83 of the Penal Code, accused of any offence under any existing law or found guilty upon trial.[5] According to the United Nations Children’s Fund (UNICEF) and Unite for Children, the term ‘children in conflict with the law’ refers to anyone under 18 who comes into contact with the justice system as a result of being suspected or accused of committing an offence.[6] It is argued that Children who break the law do not do so of their own free will, but rather as a result of restricted opportunities available for their development. Juvenile delinquency is the evidence of the society failing to ensure a protective environment for its children.[7] However, for protecting children from reoffending and promoting their sense of dignity and worth, Articles 37 and 40 of the Convention on the Rights of the Child (1989) takes into account their age and aims at their reintegration into society and in the same time the state parties are given the responsibility to ensure the appropriate measures.
In Bangladesh, The Children Act 2013 has incorporated many provisions for the children who are in conflict with the law. Some of them are as follows:[8]
Probation officer
Section 5 of The Children Act 2013 empowers the government to appoint probation officers for the purpose of this act. When a child is arrested by the police, the main duty of the probation officer is to trace the parents of the children and assess the possibility of bail or for diversion of the child from the criminal justice system. His other duties include remaining present throughout the trial, preparing a social inquiry report and ensuring legal representation for the child.[9]
Child-specialized police desk
In every police station there shall be a ‘Child affairs police desk’ headed by an officer not below the rank of Sub-inspector.[10] The duty of the officer includes maintaining separate registers for cases involving children, informing Probation Officers of cases involving children, informing a child’s parents or guardians, providing support for the child, assessing their physical health needs, ensuring a child’s age is determined correctly, and taking diversionary measures and assessing the opportunity for bail.[11]
Arrest and Bail for children
Section 44 of the act strongly restricts the authority to arrest any child below 9 years of age. If any child above 9 years is arrested, the police officer is duty bound to inform the child affairs police office the particulars of the arrest. The concerned child affairs police officer then will report the matter to the Probation officer. The child in no way shall be arrested or detained for preventive detention.[12]
Section 52 spells out that if any child is not dealt with by way of diversion, the Court may release the child on bail with or without surety, whether or not the offence alleged is bailable or non-bailable. The Court may grant bail on the bond of the child concerned, their child’s parents or, in their absence, the foster carer, guardian or members of her/his extended family, Probation Officer or any institute or association whom the Court considers appropriate, with or without surety.
Children’s Court and trial
Section 16 of the act provides that in every district headquarter and metropolitan area there shall be a Children Court for the purpose of this act. Where a child is involved in any offence along with an adult, on the basis of the separate charge sheet as provided under Section 15, evidence will be taken in the case of the child separately from the evidence taken in the case of the adult, in a separate session on the same day. The Supreme Court in Selim Bin Hakim v State held that the trial court has no authority in violation of the provisions of The Children Act 2013 to make charges or try offenses against a child together with an adult.[13]
The sittings of the Children’s Court shall be in a building or room separate from one where trials of adults take place and on a day and time other than the sittings of the regular Court. The sittings for the trials of children will take place in an ordinary room, without witness boxes and without podiums in red cloth.[14]
Diversion
Section 2(13) defines diversion as any measure taken under section 84. Section 84 provides the procedure rather than the formal justice system to settle down the disputes. The process and procedure of diversion is to be prescribed by Rules. The Social Welfare Department is mandated to adopt programmes for the implementation of diversionary measures.[15]
Restrictions regarding punishment
Section 33 of the act provides that no child shall be sentenced to death, imprisonment for life or imprisonment. However, observing the seriousness and gravity of the offence and the character of the offender, the Court may sentence the child to imprisonment and send her/him to prison. But the period of sentence may not exceed the maximum period to which the child could have been sentenced.
Detention of the children
Under section 34 if the court finds that a child is guilty of an offence punishable with death or imprisonment for life, it may order the child to be detained in a CDC for a period not less than three and not more than ten years. However, if it finds the child guilty of an offence not punishable with death or imprisonment for life it may order her/him to be detained in a CDC for up to three years.
Privacy right of the children in conflict with the law
There is a restriction on the publication and disclosure of the pictures of the child in any electronic or print media or internet who is connected with the case.[16] Section 23 of this act provides the persons only who are permitted to be present in the proceedings of the Children’s Court. Even, this list can be made shorter if the court thinks it necessary for the best interest of the child.[17]
Future of a person to a large extent depends on the period before adulthood. Childhood and adolescence are the time when psychological and physical development of a person occurs. If these life circles are disturbed, the future life will be affected adversely. The measures taken by The Children Act 2013 are in harmony with the international obligation put forward by UNCRC. Having law is not enough for the betterment of the children, focus should be given on the implementation. If the provisions of The Children Act 2013 are followed and implemented properly, juvenile delinquency will not be a curse for the society and nation.
Writer is a student of Department of Law, University of Dhaka.
[1] The Children Act 2013, s 4
[2] Unicef, ‘A summary of the rights under the Convention on the Rights of the Child’, <https://www.unicef.org/montenegro/en/reports/summary-rights-under-convention-rights-child#:~:text=The%20four%20core%20principles%20of,harmonious%20development%20of%20every%20child.> accessed 15 March 2022
[3] Ibid
[4] Shamim Ara, ‘Rights of the Child come into contact with Law and state of Juvenile Justice system- Bangladesh perspective’, (reliefweb, 5 June 2012) <https://reliefweb.int/report/bangladesh/rights-child-come-contact-law-and-state-juvenile-justice-system-bangladesh> accessed 15 March 2022
[5] The Children Act 2013, s 2(3)
[6] Shohreh Mousavi, Behnam Rastegari, & Rohaida Nordin, ‘Improving the Legal Protection of Child in Conflict with the Law: Reintegration and Rehabilitation into Society’, <https://www.researchgate.net/publication/236960059_Improving_the_Legal_Protection_of_Child_in_Conflict_with_the_Law_Reintegration_and_Rehabilitation_into_society> accessed 15 March 2022
[7] Ibid
[8] Mr. Justice M Imman Ali, ‘Commentary on the Children Act 2013’, ( Bangladesh Legal Aid and Services Trust and Penal Reform International, 2013) <https://www.blast.org.bd/content/publications/The-Children-Act%202013.pdf> accessed 15 March 2022
Note: For the discussion about the protection measures under the act, the writer took a great extent of help from the commentary of Honorable justice Imman Ali.
[9] The Children Act 2013, s 6
[10] The Children Act 2013, s 13
[11] The Children Act 2013, s 14
[12] The Children Act 2013, s 44(2)
[13] (2015) 67 DLR 532
[14] The Children Act 2013, s 17(4)
[15] The Children Act 2013, s 48
[16] The Children Act 2013, s 28
[17] The Children Act 2013, s 25
