Human rights, democracy and global civility

Amnesty International (AI) has on July 18, 2003 called upon the United States of America (USA) to stop execution of child offenders because it is prohibited under the aforesaid international conventions including the American Convention on Human Rights (ACHR). The exemption of juvenile offenders from death penalty is also contained in the Geneva Conventions and their two additional protocols.

The USA signed ICCPR in October 1977 and ratified it in June 1992 with reservation to continue its practice of imposing death penalty on juvenile offenders. In respect of CRC, the USA is one of only two countries in the world which have not ratified it. The other country is Somalia which is recognised to be a stateless society. Since signing of CRC with reservation in 1995, the USA has executed two juvenile offenders and sentenced over 20 others to death.

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AI has also cited other countries which have executed child offenders in the past twenty years. The countries are: Barbados, the Democratic Republic of Congo, Iran, Nigeria, Pakistan and Yemen. China is said to have amended her criminal law to abolish death penalty for offenders under 18 at the time of committing the crime. Yemen has also followed similar path.

The complete disregard of international law in respect of child rights by the USA has led AI to conclude.

"Questions have been raised about USA's commitment to international standards of justice since 11 September 2001. Here is the prime example of a longer-standing US tendency to adopt a selective approach to international human rights law".

More recently, in the World Economic Forum (WEF), in the debate on Global Civility and Democracy aired by British Broadcasting Corporation (BBC) on January 24, 2004 some of the distinguished participants condemned USA for adopting double standard and its most controversial efforts to protect human rights and democracy on a global basis.

Bangladesh case

Bangladesh is also often condemned by international organisations for its lack of respect for human rights and democratic practices. The empirical evidence on child executions provided by AI does not include Bangladesh. However, a different view seems to have been taken by Chief Justice Springer, Supreme Court of Nevada in 1998. He dissented from majority verdict of the Supreme Court when it confirmed the death sentence against Michael Domingues who committed murder at the age of 16. His dissenting view was based on the question of the illegality of the death sentence under international law.

Chief Justice Springer is reported to have said then: "Under Nevada's interpretation of the treaty, the United States will be joining hands with such countries as Iran, Iraq, Bangladesh, Nigeria and Pakistan in approving death sentence for children. I withhold my approval".

The country-specific examples of execution of juvenile offenders cited by Chief Justice Springer are Bangladesh (1986), Iraq (1987), Iran (1992), Pakistan and Nigeria (1997). The treaty he refers to is the ICCPR. The majority view of the Supreme Court thus prevailed over the minority view, which is always the case in democracy as well as in court verdicts of higher judiciary. This is perhaps what it should be. What, however, needs to be noted is that this practice appears to be violated by the USA in respect of globally accepted norms relating to human rights, democracy and civility.

English law

In England, the child offenders under age 10 cannot be sentenced to death. The controversy raised over the judgment in the case of James Bulger is a case in point. However, the controversy arose over the decision taken by the Home Secretary, Michael Howard who, ignoring the imprisonment sentence of 10 years awarded finally by the Lord Chief Justice, raised it to 15 years. The English system of dealing with child offenders is a complex two-tier system. The general opinion is increasingly in favour of leaving it to the Courts of Law to the exclusion of any authority for the Home Secretary.

Bangladesh penal law and child rights

In this context, it would perhaps be appropriate to examine the extent to which Bangladesh penal law protects the juvenile offenders. Our Penal Code (Sections 82 and 83) provides such protections to juvenile offenders. It is stipulated first that "Nothing is an offence which is done by a child under seven years of age". Thus a child offender under seven years of age is totally exempt from any punishment for an offence. It is further stipulated that "Nothing is an offence which is done by child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion".

There are specific case laws that interpret the above protection granted under the Penal Code. It is not necessary for the prosecution to lead positive evidence to show that an accused person below twelve years of age had arrived at sufficient maturity of understanding within the meaning of section 83 of the Penal Code. It would be permissible to arrive at that finding even on a consideration of the circumstances of the case.

Other forms of protection

There are other forms of protection ps.

The provision of CrPc (Section 562) is a beneficial piece of legislation. It enables the court, under certain circumstances, to release the accused, who has been convicted, on probation of good conduct. It applies only to first offenders, who are entitled to the indulgence on the score of their age, character or antecedents, and to the circumstances in which the offence is committed. The object of this section is to avoid sending the first offender to prison for an offence, which is not of a serious character and thereby run the risk of turning him into a regular criminal.1 First offenders fall into two classes: (1) those above the age of twenty-one years and "convicted of an offence punishable with imprisonment for not more than seven years", and (2) those under the age of twenty-one years or women, and "convicted of an offence not punishable with death or imprisonment for life". A Court cannot pass an order under this section where the offence charged is punishable with more than seven years' imprisonment and the person accused is more than twenty-one years old.2

We have no published data on the extent to which our juvenile offenders above the age of seven years have enjoyed the due protection of law. There is need for more transparency in this regard than at present.

The upshot of the above discussion on our penal and procedural laws relating to rights is that there is considerable scope for taking a liberal view of juvenile offenders, in particular, those who are first offenders having no previous criminal record. These rights, however, do not appear to protect offenders, above the age of seven years, who would otherwise be guilty of criminal acts punishable with death or imprisonment beyond seven years. From the global picture presented by AI, it seems that Bangladesh has ratified both ICCPR and CRC without any reservation. This seems to cast an obligation on Bangladesh to amend the penal law and bring it in conformity with international law as China and Yemen had done.

International treaties and parliamentary oversight

Our parliamentarians will be doing a service if such issues are debated and a consensus achieved. This raises the issue of parliament's jurisdiction of debating international treaties. The relevant article in this regard is article 145A of the constitution. It reads:

"All treaties with foreign countries shall be submitted to the President, who shall cause them to be laid before Parliament. Provided that any such treaty connected with national security shall be laid in s secret session of Parliament."

The first part of the article tends to cast doubt on the question of parliamentary jurisdiction to debate, discuss and approve international treaties. To unbundle the issue further, the reference first is to treaties with foreign countries. Are international covenants sponsored by the United Nations and signed and ratified by Bangladesh treaties with foreign countries? Second, it is just laid before parliament. Is there any scope for debate or is it for information only?

Such grey areas probably stemmed from the fact article 145A was inserted by the martial law government under its Second Proclamation Order, 1978. In the history of parliamentary form of governments (1973-75) and 1991 to date, this issue has never been raised by our elected law makers. How can our national laws be consistent with international laws signed and ratified by us is an issue over which there is need for more public debate. It is said that in the recent past, an international organisation organised an workshop to press home the point that the age limit of juvenile offenders be raised to fifteen. The workshop is understood to have recommended the same to the government. Should this be the end of the debate or should it be the beginning. No one will know until the executive government decides the issue. Many informed citizens would have us believe that at no stage of our parliamentary history since 1978, any international covenant signed and ratified by different governments was ever laid before the parliament.

Signing of international treaties on civil, political and child rights and later ratifying them may give us consolation that we are mindful of such rights. We need to move away from such deceptions and show that the rights are fully guaranteed and enjoyed by all Bangladeshi citizens irrespective of religion, cast or creed. It is only when we are able to do so, we can claim to have moved to global civility and internationally accepted standards of human rights and democracy. Otherwise, we will stand condemned for double standards of a kind different from that of the USA.

1. 44 Bom. L R 456.

2. 40 Bom. L R 927.

The writer is a retired civil servant and former Agricultural Secretary.