Sk. M. Tofayel Hasan
Joint Metropolitan Session Judge,
Chittagong
Foreword :
As per the Oxford dictionary “Child” means a young human being who is not yet an adult. At the time to build up the concept of family, a child was unquestionably considered as a human being without any status but with its existence. Within a course of time the concept has been increased and the child has become an important part as it preserves the generation of a family though their status and entity was not addressed by the society. The conception of child, according to arise theory was to say that the child could do nothing and consequently was nothing.
In the middle of 17th century the English philosopher John Locke adopted a new approach to understanding childhood and children’s issues. In the 18th century French Philosopher Jean Jacques Rousseau recognized childhood as a specific phase in life and that the child was an independent personality with special requirements. According to Jean Jacques Rousseau the human being is good by nature, but later corrupted by society. German Philosopher Goethe agrees with Rousseau on this principle. Thus Rousseau was the first to see complete human value in the child, the child as an independent personality with special requirements. Children were only recognized as a separate category of rights holders at the beginning of the 19th century when national legislatures started to enact laws providing or special measures of protection for children. The real recognition of the rights of children only come in the 20th century.
[Ref: Towards A Justice
Delivery System For Children in Bangladesh: A Guide and Case Law On Children In Conflict With The Law- Justice M Imman Ali, p-17-19, UNICEF Bangladesh, 2010]
Legal variance in the age of a Child: Article-l of The United Nations Convention on the Rights of the Child-1989 has provided the definition of Child as “A Child means every human being below the age of eighteen, unless under the law applicable to the child, majority is attained earlier.” Thus, according to that definition the international standard of the age of majority of a Child has fixed as 18 (eighteen). The convention has also let the national laws to set a different age limit. Simultaneously, the convention has also encouraged different states to take up the alike definition as mentioned in article-1 in their national legislation.
According to section-2 of The Majority Act-1875 also permits to settle the age of any person according to their respective personal laws. The section provides. “Nothing herein shall contain shall affect-a) the capacity of any person to act in following matters (namely),- marriage, dower, divorce and adoption b) the religion and religious rites and usages of any class of citizens of Bangladesh c) the capacity of any person who before this Act come into force has attained majority under the law applicable to him.”
On the other hand, section-3 of The Majority Act-1875-” Every minor of whose person or property or both a guardian, other than a guardian for a suit within the meaning of Schedule-I, Order-XXXII of The Code of Civil Procedure-1908 has been or shall be appointed or declared by any court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall, notwithstanding anything contained in The Succession Act-I925, or any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one years and not before. Subject of aforesaid, every other person domiciled in Bangladesh shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before.”
According to the article 122(2)(b) of The Constitution of the People’s Republic of Bangladesh-1972, the person who has attained the age of 18 (eighteen) years is allegeable to cast his/her vote in any public election. Side by side, the age of marriage for male is 21 (twenty one) and for female is 18 (eighteen) has been recognized in seclion-4 of The Child Marriage Restraint Act-1929. Although the Muslim and Hindu personal laws have provided some specific emphasis on the mental capacity to put consent, physical ability i.e. attainment of puberty and also the capability of reproduction for marriage. Moreover The Christian Marriage Act-1872, section-19 also allows a minor to get married through the consent of father or guardian or mother.
However, The Labor Act of 2006 sections 34 & 35 bars a child to work and section-2(8) allows to work a adolescent who has arrived at the age of 14 (fourteen) but not the age of 18 (eighteen) years. Under The National Child Policy of 1994, one can work once if he/she crosses 14 (fourteen) years. The children Act-1974, he cannot seek work until he is above 18 (eighteen) years of age.
In The Penal Code-1860 holds that a child under 7 (seven) cannot be punished for an offence, no criminal responsibility under the age of 9 (nine) years, 9-12 (nine-twelve) year nothing to child if he has not attained sufficient maturity of understanding to judge of the nature and consequence of his conduct on that occasion.
The Muslim Family Law Ordinance-1961, section-12(1)(a) was sets 16 (sixteen) years as the age of maturity but after amendment of The Child Marriage Restraint (Amendment) Ordinance-1984 the age of maturity has been fixed for male 21 (twenty one) and for 18 (eighteen) years for female.
The Motor Vehicles Ordinance-1983, sections 4 & 15 lays down that to drive a light vehicle, one has to be above 18 (eighteen) and to drive a heavy vehicle, above 20 (twenty) years.
The Nari-o-Shishu Nirjatan Daman Ain-2000, section-2 subsection “cha” provides that nari means a woman of any age and subsection “ta” provides that child means a person up to 16 (sixteen) years of age.
Due to the differences in ages of children, they were denied fair justice. So this discrepancy has been addressed finally in the section-4 of The Children Act, 2013. In the Act, the age of the child has been fixed up to 18 years.
Angela Melchiorre’s research ‘At What Age’ reveals that in 25 countries of the world, there is no set age limit for compulsory primary education for children. In 33 countries, there is no minimum age for work, and in 44 countries, girls are allowed to marry earlier than boys can. In at least 125 countries, seven to 15year-olds are taken to court for their offences and detained in dangerous prison conditions, even though this is the age group that must go through compulsory primary education. In some countries, even the concept of compulsory primary education is missing, and children below 14 are allowed to work. There are also instances where children below 12 are allowed to marry and children as young as seven are punished for their crimes.
[Ref: http:// www.angelamelchiorre.com/ research (21-2-2012)]
Procedural Problems: The Children Act, 2013 has provided some provisions regarding-Internationally recognised definition for a child: Due to the differences in ages of children, they were denied fair justice. This discrepancy has been addressed in The Children Act, 2013. In the Act, the age of the child has been increased from 16 to 18 years. So, child age has been fixed up to 18 years.
Child-friendly arrest procedure: According to the Act, whatever the circumstance is, child aged below nine cannot be arrested. If a child above nine is being arrested, law enforcers cannot apply handcuffs and rope around waist to the child.
Juvenile Court at district level: According to the Act, at least one juvenile court will be formed in district or metropolitan area. If a case is filed against a child, whatever crimes she committed, the juvenile court will try him/her.
[Ref: The Children Act, 2013: A Milestone in Child Protection-Dr. Nahid Ferdousi Published by-Law Vision, September 2013]
But nowadays, we may find the arrest procedure of the said Act, is not completely observing by the concern enforcing authorities. The adult and the children are brought before the court in a common vehicle and handcuffs although it is prohibited by the Act.
How the case will be dealt with which were filed before implementing the Act has not been stated explicitly. Which one is the juvenile court, is not properly identified or mentioned. The Additional District Judge for the Metropolitan areas and to some extend the District Judges have been designated as a Children Court though their business is up to the neck. It is rare to get presence of the Probation Officer/s in the courts and also difficult to discover his Office. The Children Act has provided the provision to appoint a lawyer for the children but the system is not self-reliant indeed. If we visit the jail or subjails of Bangladesh, the children will oftenly be found as a prisoner or a working-boy. Still we have to hunt for the safe homes, child development centre, the rectification centre, the alternative care homes, government rehabilitation centers and the correction centers or the recommended institutions for the children in each district. The Board or the Child Welfare Boards have not able to get rhythm in their functions.
The word ‘accused’ or ‘convicted’ or ‘conviction’ has not been removed from the record of the cases of the Children. The drug or arms traders are still using the children frequently as a carrier and they have taken the Act as a privilege although the specific punishment has been mentioned.
The law enforcing agencies are ignoring when the Children are using as a street beggar. In contrast, we have not yet able to establish any National Children Policy and the children who are working in a domestic level is still out of our vision. Moreover, a huge controversy between The Children Act. 2013 and The Nari-o-Shishu Nirjatan Daman Ain, 2000 pertaining to the children is still subsisting despite the fact that The Children Act, 2013 is keeping its provisional supremacy over the concern laws.
Conclusion: Conflict regarding age of a Child, a sheer reality in Bangladesh like many other developing countries, is one of the major legal problems in the country. No harmonization subsists in the laws of our country concerning the age, sex, religion, caste, rights, liabilities and duties of a child. Different laws are providing different definitions of age of a child and all the distinct provisions have not yet been repealed. So the stakeholders are arguing for the laws which are in their favour or disfavour. Now it is time to look forward upon the uniform Child law for the children and to make an accord between all concern laws of Bangladesh and thus we can truly consider the child as a child unanimously, legally, procedurally and practicably.
