Legislative measures of Bangladesh on the prohibition of corporal punishment and violence against children: We need a guarantee of non-recurrence.
Upon the recommendation of a UN study, a Special Representative of the Secretary General (SRSG) on violence against children was appointed to further the rights of children, and since then the SRSG has been inspiring countries to reform their national laws. The inspiration of SRSG was a constant reminder to Bangladesh’s commitment in respect of the prohibition of corporal punishment against children. Bangladesh has enacted a law on the rights of children, the Child Act 2013, without incorporating categorical words prohibiting corporal punishment and without having a clause which categorically repeals earlier legislation which permits such punishment. Is an overriding provision (section 3) enough to give priority to this law over the earlier ones? Which legal approach should be taken to avoid the problem? Would this initiative encourage the children towards the participatory rights in a democratic society?
The Seventh Cross-Regional Round Table on the Prevention and Elimination of Violence against Children was hosted by the SRSG and the Association of South East Asia Nations (ASEAN), during its 50th anniversary under the chairmanship of the Philippines, from 6-8 June, in Manila. SRSG Santos Pais highlights importance of cross- regional cooperation to prevent and eliminate violence against children at Seventh Cross-Regional Round Table. Surely the combined efforts of all will lead the globe to an equitable order where all the children would be free from corporal punishments. SRSG on violence against children is playing a positive role in inspiring the countries to bring legislative measures prohibiting corporal punishments against children.
Is Corporal punishment against children still legal in Bangladesh? Provisions from earlier legislation, which legalize corporal punishment against children, remain on the statute books. Whipping children was legalized under the Prisons Act 1894 (Sec 46) and it was lawful as a sentence for particular crimes; sections 391,392, 393, 394 of the Code of Criminal Procedure 1898, provisions of the Whipping Act 1909, the Cantonments Pure Food Act 1966 (sec 23), the Railways Act 1890(Sec 130). These provisions regarding the corporal punishment against children have not been categorically repealed. However, a provision (section 3) has been placed in the Child Act 2013 giving the overriding effect over the earlier provisions. And it is a special Act.
Higher Judiciary of Bangladesh is very positive to prohibit corporal punishment against children. In recent years Supreme Court, in few cases, directed the concerned authorities to take necessary measures prohibiting corporal punishment. The commitment of Bangladesh to prohibit corporal punishment, and the ruling of the Supreme Court and the Child Act 2013, I think, would bring the result that is being sought.
Bangladesh expressed its commitment to prohibiting all corporal punishment of children at the July 2006 meeting of the South Asia Forum. In 2009, the commitment was reaffirmed during the Universal Periodic Review of Bangladesh. The Child Act 2013 therefore seems to live up to Bangladesh’s commitment to prohibit corporal punishment against children; because the overriding provision (section 3) would paralyze the earlier penal provisions. An argument could be made that section 70 of the Child Act effectively prohibited all forms of corporal punishment on children. This section incorporated the word ‘assaults’ and ‘abuses’ to cover all forms of corporal punishments.
The golden rule of statutory interpretation is that the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnancy or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no further. In applying this test, if we give the grammatical or ordinary meaning to the words ‘assault’ and ‘abuse’ then all forms of corporal punishments come within the scope of those words, without resulting any absurdity or inconsistency. Such an interpretation would live up.
However, even if the view is taken that these words are ambiguous, the application of the mischief rule of statutory interpretation leads to the same result. In applying the mischief rule, the court would ascertain the object and purpose of the statute and would read the words in a way that would suppress the mischief.
A further question is whether either of these approaches can be adopted, in light of the fact that the Child Act 2013 did not categorically repeal the provisions of earlier legislation. Can it be argued that the penal provisions of the aforementioned earlier aActs have been -impliedly- repealed? It can be assumed that the legislature was aware of the list of all existing laws, including the ones mentioned above, when enacting the Child Act 2013. Can it be argued that the failure of the legislature to add a repealing clause with a categorical identification of earlier penal provisions indicates that the intent was not to repeal the earlier legislations (Municipal Council v T J. Joseph AIR 1963 SC)? However, presence of section 3 in the Act bears the intention of the legislature and this expressed intention would answer the arguments mentioned above.
One could raise a question on whether or not the initiative of the prohibition of corporal punishment against the children would encourage them in their participatory rights in a democratic society. When the democracy is not limited to a mere right of casting of vote, the active roles of non-voters (children) could bring them in the position of self determination relating to the matters affecting them. Article 12 of the Convention on the Rights of the Child (CRC) imposes a clear obligation on the State parties to encourage the children to participate in the affairs of the democratic society. Surely prohibition of corporal punishment against children is a positive initiative towards the further rights of self determination.