Urgent re-appraisal needed

Bangladesh became a State Party to the United Nation's Convention on the Rights of the Children, 1989 (UNCRC) in 1990. As a State Party, Bangladesh has the responsibility to implement the provisions of the UNCRC at the domestic level. However, the 1974 Children Act which was a pre-Convention period legislation was not adequate enough to address various requirements of UNCRC. Subsequently, the Children Act, 2013 (CA 2013) was enacted which repeals the 1974 Act with the aim of bringing the country in line with provisions of international instruments such as the UNCRC, as well as decisions of the Bangladesh Supreme Court.

Article 40 of the UNCRC details a list of minimum guarantees for the child and it requires State parties to set a minimum age of criminal responsibility, to provide measures for dealing with children who may have infringed the penal law without resorting to judicial proceedings and to provide a variety of alternative disposition to institutional care. The requirements of Article 40, i.e. obligation as to justice-focused juvenile justice system as enshrined in the UNCRC, have been complied with by a number of provisions set out in the CA 2013. But few provisions are left behind.

Article 40(2)(b)(i) of the UNCRC provides that every child alleged as or accused of having infringed the penal law has to be presumed innocent until proven guilty. Rule 7 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) 1985, provides presumption of innocence as basic procedural safeguards. This is also to be found in article 11 of the Universal Declaration of Human Rights and in article 14, paragraph 2, of the International Covenant on Civil and Political Rights (ICCPR). But the presumption of innocence is not specifically mentioned in the CA, 2013.

Article 14(3)(g) of the ICCPR and 40(2)(iv) of the UNCRC requires that a child not be compelled to give testimony or to confess or acknowledge guilt. Article 35(4) of the Constitution of Bangladesh provides 'No person accused of any offence shall be compelled to be a witness against himself'. Section 30 of the Evidence Act, 1872 permits the Court to take into consideration the confession of an accused. However, it must be noted that this is subject to section 24, which provides that 'a confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement, threat or promise…'. In a pre-CA 2013 case, Bangladesh Legal Aid and Services Trust & Another v Bangladesh & Others, 22 BLD 206 it was held that: '… the confession made by a child is of no legal effect'. So, with regard to children who are said to have made a confession, the courts have deviated from the strict rules of evidence. In Jaibar Ali Fakir v The State, 28 BLD 627 the High Court Division (HCD) recommended changes in the law to include provision to the effect that any confession or statement of a child must be taken in the presence of his/her parent/guardian/friend/legal representative. But, in the Act of 2013 there is no specific provision which prohibits to compel a child from giving confessional statement or to take a confessional statement in the absence of the parents or guardian.

Article 40(3)(a) of the UNCRC provides that States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law, and, in particular, the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law. Section 82 of the Penal Code 1860 exempts children below the age of nine (9) years from criminal liability and section 83 exempts a child from criminal responsibility above nine years and below twelve years, who has not attained sufficient maturity of understanding to judge the nature and consequence of his conduct.

It should be mentioned that many States have raised the age of criminal responsibility to 12. In its 1997 report to the UNCRC Committee, Bangladesh assured that it had a plan to upgrade this age to 12. But no initiative has been taken in this regard, as a result, in the concluding observations on the 5th periodic report of Bangladesh, 2015 at para. 81(d), the UNCRC Committee has again called Bangladesh to raise the minimum age of responsibility "to an internationally acceptable standard".

The legal provisions relating to the obligations as to justice-focused juvenile justice system in the CA 2013 are not entirely in line with the standards and norms set forth in article 40 of the UNCRC. So, the following recommendations have been given: a) specific provision should be incorporated regarding presumption of innocence in the present CA, 2013 to comply with article 40 of the UNCRC; b) definite provision can be inserted for the protection of child from giving confessional statement either in contact with law as witness or victim and in conflict with law as accused; c) the age or criminal responsibility should be further increased at least to 14, and that the age of maturity and appreciation for the purpose of criminality be raised to 16 from the current age of 12.

For the betterment of the society there is no alternative but to devote all possible efforts for the well-being of the children. It is hoped that, the policy makers, the academicians, the civil society and the executives will put their all efforts for an  effective juvenile justice system in Bangladesh.

THE WRITER IS AN ASSISTANT PROFESSOR OF LAW, JAGANNATH UNIVERSITY.