State v. Metropolitan Police Commissioner, Khulna and Others
Supreme Court of Bangladesh, High Court Division (Special Original Jurisdiction)
22 July 2008
Article 3: Best interests of the child
Article 9: Separation from parents
Article 12: The child’s opinion
Article 19: Protection from abuse and neglect
Article 20: Protection of a child without family
The Children Act, Bangladesh, 1974: Sections 13(2) (informing parent or guardian of arrest), 48 (bail of child arrested), 49 (custody of child not enlarged on bail), 50 (submission of information to Probation Officer by police after arrest)
Constitution of the People’s Republic of Bangladesh: Article 28(4) (special provisions in favour of children)
A girl believed by police officers to be 10-years-old was caught possessing 29 bottles of phensedyl strapped to her body. She was arrested and placed in jail with no attempt to contact her parents, release her on bail or transfer her to a remand home or other place of safety. After learning of the case from a news report, the High Court issued a "Suo Motu Rule" to the Metropolitan Police Commissioner, the Chief Metropolitan Magistrate and the arresting officer, forcing them to explain what provision of law authorised the arrest and detention of the child in district jail.
Issues and resolution:
Juvenile justice; arrest, bail and pre-trial detention of children. Although the girl was old enough to be arrested and held in jail, the police failed to contact her parents, inform a probation officer of the child’s arrest, consider bail, or ensure that the girl was held in a remand home or other place of safety. The Magistrate similarly failed to consider possible means of releasing the girl, ensure that she was detained in a remand home or place of safety, appoint a probation officer, contact the parents of the girl or consider whether the girl had attained sufficient maturity to be found guilty of a crime.
In accordance with the Children Act, if a child is arrested, he or she should be released on bail and detained only as a last resort. The parents of the child must be informed of the arrest without delay and a probation officer must be appointed immediately to ensure that the child is released to an environment that is in his or her best interests. If the child is to be detained, the police and the court must ensure that the child will be held in a remand centre or other place of safety. In this case, as the police and the Magistrate failed to follow these requirements, the police acted in violation of the provisions of the Children Act.
Excerpts citing CRC and other relevant human rights instruments:
[I]f the learned Judge, before whom the matter appears for trial, feels inclined, he may consider the bail matter, particularly bearing in mind the probable unsuitability of safe home atmosphere for a child of such tender age. However, the bail may be subject to custody of the girl being given to any person considered suitable by the learned Judge. The Court, in all circumstances, must ensure the best interests of the child. Under normal circumstances any child ordered by the Court to be enlarged on bail would go to the parents; normally the best interests of any child would demand that it be kept in the custody of the parents. In this regard we get some guidelines from the United Nations Convention on the Rights of the Child (UNCRC). Bangladesh was one of the first signatories to the Convention and is bound to take steps for implementing the provisions thereof. Being signatory we cannot ignore, rather we should, so far as possible, implement the aims and goals of the UNCRC.
[I]t is an accepted principle that international covenants, conventions treaties and other instruments signed by State parties are not considered to be binding unless they are incorporated into the laws of the land. To our knowledge Bangladesh has not yet incorporated all the provisions of the UNCRC into its national laws. On the other hand our domestic laws do not contain the beneficial provisions of the UNCRC and they also are not in conflict with our domestic laws, save and except Article 21 regarding adoption. They may, therefore, be considered if it would be in the best interests of the child.
The Children Act, 1974 has promulgated succinct provisions aimed at giving special treatment for children. The UNCRC goes further to provide more beneficial provisions dealing with children. It is stated in the preamble of the UNCRC that the child for the good and harmonious development of his or her personality should grow up in a family environment, in an atmosphere of happiness, love and understanding. It is also stated in the UNCRC, quoting from the Declaration of 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.” In Article 3(1) it is stated as follows:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”
Article 9.1 of the UNCRC provides as follows:
“9.1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents . . . .”
In the facts of the instant case, we have found from the materials on record that the girl’s mother is herself in custody on allegation of carrying illegal drugs. The father appears to have abused the girl by engaging her in carrying illegal drugs as a source of income for him and his family. So, although it would normally be in the best interests of any child to be with the parents, in the circumstances of the present case, it may be felt that her best interests would not be to remain with the parents, at least until the Court becomes satisfied about their suitability to get custody of the accused.
On the contrary Article 19.1 provides as follows:
“19.1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”
In such circumstances the Convention enjoins that the State shall provide alternative arrangements, as seen in Article 20, which provides as follows:
“20.1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
2. States Parties shall in accordance with their national laws ensure alternative care for such a child.
3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.”
In view of the above provision, the Court may consider the third alternative, i.e. placement with any close relatives who might be willing to take the girl into their custody. Failing that, the Court would look to other distant relatives/any other benevolent person, who might agree to take the girl into their custody at their risk and responsibility. In this respect fostering might be a realistic alternative. Thus at all times the Court must bear in mind the paramountcy of the best interests of the child. In the facts of the instant case it appears that a probation officer has been appointed by the Court, who has duties as detailed in Section 16 and 31 of the Act, 1974 and Rule 21 of the Children Rules 1976 (the Rules, 1976).
“[I]t is imperative that the Court should rely on a report from the probation officer, who will go to the locality, if necessary, to ascertain all the factual aspects necessary for the Court to come to a decision with regard to the child. He would also speak to the accused as provided by the UNCRC. Article 12 provides as follows:
“12.1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”
The Supreme Court suggested that the legislature should consider amending the Children Act or formulating new laws giving effect to the provisions of the CRC, as is the mandate of that Convention upon its signatories.
CRIN believes this decision is consistent with the CRC. The Court recognised its obligations under Article 3, whereby the best interests of the child (accused or otherwise) must be considered first and foremost in dealing with all aspects concerning that child. Additionally, Article 37(b) requires that the arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. States Parties to the CRC should make every effort not to imprison children in conflict with the law, and courts should seek to link young offenders with appropriate rehabilitative, educational, and social services regardless of the nature of the crime.
60 DLR 660
Link to Full Judgment:
http://betterjustice.files.wordpress.com/2013/09/justice_for_children_in_bangladesh_vol-2.pdf (from page 87)
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.