State v. Mondal
Bangladesh, Supreme Court, High Court Division (criminal jurisdiction)
July 9, 2006
Article 40: Administration of juvenile justice
Other International Provisions:
International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171, entered into force 23 March 1976
United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985
United Nations Guidelines for the Prevention of Juvenile Delinquency, 1990
Guidelines for Action on Children in the Criminal Justice System Recommended by the UN Economic and Social Council, Resolution 1997/30, 21 July 1997
Constitution, as amended up to 2004 (Bangladesh), Article 28(4)
Section 6 of the Children Act of 1974 (Bangladesh)
Section 6(2) of the Women and Children Anti-Repression (Special Provisions) Act, 1995 (Bangladesh)
Defendant Mondal was accused of raping and murdering a child when he was 13 years old. Because Mondal was just over 15 years old at the time of his appearance for trial, the judge transferred his case away from the juvenile court to another court, which designated itself to act as Juvenile Court under the Children Act 1974 in trying the defendant. Mondal was convicted and sentenced to death by this new tribunal.
Issue and Resolution:
Juvenile justice. The Supreme Court held that the separate Tribunal that heard Mondal's case could not and did not act as a Juvenile Court, and therefore overturned Mondal's conviction. For other reasons discussed below, the Supreme Court did not send the case back to a lower court for another trial, but instead released Mondal.
The Supreme Court analysed the development of international declarations, rules, covenants and laws from around the world generally and in Bangladesh specifically regarding the prosecution and separate handling of juveniles. It found that the primary purpose of these laws includes the establishment of systems and facilities to educate children so that they are prevented from coming into conflict with the law. When a young person's actions do conflict with the law, however, the Court noted that "the aim is to provide a system of justice which is ‘child-friendly’ and which does not leave any psychological scar or stigma on the child, and, on the contrary, prepares him for a fruitful future" (¶ 29-47).
The Children Act 1974 was designed to give effect to Article 28(4) of the Constitution of Bangladesh, which calls on the government to enact legislation concerning women and children. Under this Act, a person who was under the age of 16 at the time of the offence must be segregated from adult offenders and, if transferred to another court, afforded every right he or she would have in the Juvenile Court. In deciding whether to transfer a case away from the Juvenile Court, the Supreme Court stated that an offender's characteristics (e.g., age) should be more important than the nature of the offence committed, no matter how serious it may be.
In Mondal's case, the Supreme Court observed that nothing in the trial record reflected that the formalities of a juvenile trial had been followed generally and noted specifically that Mondal's death sentence was a clear reflection that he was not treated as a youth.
Further, the Supreme Court noted that Mondal confessed during the investigation of the crime, but at trial pleaded innocent and asserted that he had only confessed because he was being tortured while in police custody. Both physical evidence and the testimony of several witnesses during Mondal's trial, including the Deputy Attorney General, supported this fact. For those reasons, and because there was no evidence other than the confession connecting Mondal to the crime, the Supreme Court overturned Mondal's conviction and released him.
Finally, the Supreme Court observed that Bangladesh ratified the Convention on the Rights of the Child in August 1990 and called upon the legislature to enact laws in conformity with it.
Excerpts citing CRC and other relevant human rights instruments:
42. From the beginning of the 20th century many International Declarations, Covenants and Instruments, including those already referred to above, have been drawn up under the auspices of such bodies as the United Nations. The Convention on the Rights of the Child (also referred to as ‘UNCRC’ or ‘CRC’) was adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989. Some of the contents of that Convention may be fruitfully reproduced here in order to illustrate the modern trends in dealing with matters concerning the children of the world. The preamble states, inter alia:
“Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance,
Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,”
Thus it appears that children are now treated as a valuable asset of the society and the Nation at large who are to be protected and nurtured, and rightly so since children are the future citizens of the country and will constitute the wealth and well-being of the State.
67. In relation to juveniles in conflict with the law the UNCRC provides in Article 40 as follows:
1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:
(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i) To be presumed innocent until proven guilty according to law;
(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;
(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;
(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;
(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;
(vii) To have his or her privacy fully respected at all stages of the proceedings.
3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:
(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.
4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.”
Bangladesh ratified the UN Convention on the Rights of the Child in August of 1990. As a signatory to the convention. Bangladesh is duty bound to reflect the above Article as well as other articles of the CRC in our national laws. We are of the view that the time is ripe for our legislature to enact laws in conformity with the UNCRC. This would also give the opportunity to iron out some of the difficulties faced so far in relation to the date relevant for determining the age of the accused for the purpose of jurisdiction of the Juvenile Court and at the same time it may be spelt out that this legislation will take precedence over all other laws when matters relating to children are in issue. We feel that if the goal of the legislation is to protect children, who are our treasures and future generations, and to give them benefits which they would not otherwise get in a Court dealing with adult offenders, then they must get that benefit for whatever offence they may be alleged to have committed. The seriousness of their action may be reflected in the severity of the order passed by the Juvenile Court. But the child, in our view, must be dealt with by a Court geared to hear matters relating to children.
68. We note that many countries have enacted new laws since UNCRC and many are in the process of doing so with the specific intention of enacting legislation to incorporate the mandate of the UNCRC. This is illustrated by the preamble to the Child Justice Bill 2002 of the Republic of South Africa states as follows:
‘BILL To establish a criminal justice process for those children accused of committing offences so as to protect the rights of children entrenched in the Constitution and provided for in international instruments; to provide for the minimum age of criminal capacity of such children; to incorporate diversion of cases away from formal court procedure as a central feature of the process; to establish assessment of children and a preliminary inquiry as compulsory procedures; to provide that children must be tried in child justice courts and to extend the sentencing options available in respect of children; to entrench the notion of restorative justice in respect of children; and to provide for matters incidental thereto.”
Although the Indian Government already had the Juvenile Justice Act 1986 in force, a new legislation was passed after the UNCRC, viz. The Juvenile Justice (Care and Protection of Children) Act, 2000. The preamble to that Act reads as follows:
“An Act to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment.
WHEREAS the Constitution has, in several provisions, including clause (3) of article 15, clauses (e) and (f) of article 39, articles 45 and 47, impose on the State a primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected;
AND WHEREAS, the General Assembly of the United Nations has adopted the Convention on the Rights of the Child on the 20th November, 1989;
AND WHEREAS, the Convention on the Rights of the Child has prescribed a set of standards to be adhered to by all State parties in securing the best interests of the child;
AND WHEREAS, the Convention on the Rights of the Child emphasises social reintegration of child victims, to the extent possible, without resorting to judicial proceedings;
AND WHEREAS, the Government of India has ratified the Convention on the 11 December, 1992;
AND WHEREAS, it is expedient to re-enact the existing law relating to juveniles bearing in mind the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), and all other relevant international instruments.”
For references to other relevant international instruments and national laws, see:
International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171, entered into force 23 March 1976 – See ¶41-43
United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 – See ¶44
United Nations Guidelines for the Prevention of Juvenile Delinquency, 1990 – See ¶46
Guidelines for Action on Children in the Criminal Justice System Recommended by the UN Economic and Social Council, Resolution 1997/30, 21 July 1997 – See ¶47
The Child Justice Bill (2002) of the Republic of South Africa – See ¶62
The Child Law (1993) of the Union of Myanmar – See ¶63
The Children and Young Persons Act 1993 of Singapore – See ¶63
Child Justice Bill 2002 of the Republic of South Africa – See ¶68
CRIN believes that this decision is consistent with the aims of the CRC. Under Article 40, all states are obligated to operate separate juvenile justice systems for children in conflict with the law with a non-punitive, child-friendly approach. CRIN believes it is never acceptable to try a child in adult criminal courts, no matter what that child's age, alleged actions, or other circumstances.
(2006) 26 BLD (HCD) 549; ILDC 886 (BD 2006)
Link to Full Judgment:
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