Juvenile delinquency and juvenile justice system in bangladesh

Juvenile Delinquency And Juvenile Justice System In Bangladesh By Naima Parven

A thesis submitted in partial fulfillment of the requirements for the degree of LL.B. (Honours) Stamford University Bangladesh

Supervised By Dr. Mohammad Jeaul Hasan Asst. Professor

January, 2011

DEPARTMENT OF LAW STAMFORD UNIVERSITY BANGLADESH

DECLARATION I hereby do solemnly declare that the work presented in this dissertation has been carried out by me and has not been previously submitted to any other institution.

The work I have presented does not breach any copyright.

I further undertake to indemnify the University against any damage arising from breach of the foregoing obligations.

.…………………………….

Naima Parven ID: LL.B. 03406220 Batch: 34-B Department of Law

CERTIFICATION This is to certify that the dissertation titled- “Juvenile Delinquency and Juvenile Justice System in Bangladesh” submitted in partial fulfillment of the requirements for the degree of LL.B. (Honours).This is a record of research carried out by Naima Parven.

Under my active supervision and guidance and that no part of this report has been submitted for the award of any degree or other similar titles or prizes and that the work has not been published in legal or popular magazines.

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Dr. Mohammad Jeaul Hasan Asst. Professor Department of Law Stamford University Bangladesh.

ABSTRACT

In this thesis it is tried to focus on Juvenile Delinquency, causes of Juvenile Delinquency in Bangladesh and when children are becoming the subject of law. The Juvenile justice system is separated in Bangladesh. There are some correctional houses to rectify the derailed children.

Probation system has also been introduced under the ministry of Social Welfare. In conclusion some recommendation has been suggested.

Chapter 1 INTRODUCTION

Delinquency is the criminal behaviour usually of young people. Juvenile is connected with young person who are not yet adults. Juvenile delinquency is thus the criminal behaviour of un-adult young persons. Juvenile delinquency consists of misbehaviour by children and adolescents are subject matter of the juvenile court. The general notion of children as a “protected species” is a relatively contemporary fact that developed nearly in the second half of the eighteenth century. The development of child psychiatry has shown the importance of certain childhood disorders in causing minor emotional distress or disorders of conduct, which affect the community. 1 The delayed advancement of it may be delineated not only in economical entanglement but also in social typical one. In by-gone days children were, to a large extent, treated as absolute miniature adults and an obvious notion was formed of their unusual requirements and phase of intelligence was not deemed to be requisite indeed.

In the issue of criminal justice in particular, infringement of the law has historically appeared more threatening than insensibility of the delinquent drastic correction, and even capita punishment could be declared for the child who displayed dishonour to or rose in rebellion against the age of 14 years had to encounter capital punishment both in Australia and The United States of America. 2 When it acknowledged that those who were young enough were not capable of criminal decline, then maturity was settled at seven years of age. Those who were older were generally considered absolute answerable for their activities with some extent of acknowledgement of alleviating factors, for example, insufficient paternal restrain or different surrounding agents. A different margin was delineated between child and adult merely where it was convenient for the exception to benefit from the influential classes.

Before the 19 th century, the common propensity had been to consider the juvenile delinquent as child at the first phase. It is a legal invention of the 19 th century, which did not exist either under the English Common Law or under early Roman law. Theoretically, the notion of juvenile delinquency may be found in the successive development of Common Law, which has acknowledged bar of lawful capability of childhood for a long time.

Civil Codes of a great number of societies have regarded that a child is incapable of adopting regulation of property or of contracting individual liabilities. It has empowered the child’s guardian or the court to restrain and guard the child against the effects of their activities.

In every contemporary state, the legal term “juvenile delinquent” was established so that young law breakers could avoid the disgrace of being classified in legal records as criminals, where the main 1

The Chamber’s Encyclopedia, Vol. IV, p. 235.

2

Encyclopedia of Social Science, Vol. VII-VIII, p. 529.

aim is to rehabilitate offenders. To use these theories into effect, the juvenile court system was constituted. Since its very commencement, the juvenile court philosophy has been founded on the lawful notion of parents patriae. 3 It signifies that the state measures launching into supplying a child with the attention that a competent parent would like to have offered.

The lawful system perfectly finds to deal with the children as individuals no answerable for their treatment in preference to as delinquents. The goal of the court finally is to bring away juveniles from the embarrassing situation of offence.

The fundamental kids of community oriented punishments comprise of probation, residential and day-treatment programmes. These services are substitutes to institutionalization and prevent children from entering jails and adult prisons. In the west, this type of community orientation programmes attracted public patronage in the late 1960s and early 1970s. 4 Chapter 2 JUBENILE DELINQUENCY Juvenile are the most susceptible segment of society. They react sharply to any social problem.

Scarcity of basic needs, lack of parental attention and any social crisis touch them so deeply that many of them cannot cope with the abnormal situation. They respond to social anomalies in ways approved by social norms and law. Some of them choose a life pattern and develop juvenile subculture to exhibit their resistance that injustice has been done to them.

Juvenile delinquency cannot be considered by keeping it apart from social reality. Social malfunctioning causes increase of juvenile delinquency and emergence of juvenile sub-culture, indicating that the children have been subjected to malnourishment. If the dominant culture of society fails to accommodate all the children sufficiently, the deprived young folk will stand up with their own sub-culture. Different countries have already experienced this reality. Juveniles’ resistance through delinquency and aberrant life style reminds that social institutions need to be recognized and cause of juveniles should be specially taken care of.

2.1 Definitions of Juvenile Delinquency The word ‘delinquency’ has no specific definition, nor any universally acceptable meaning.

Delinquency is a complicated as well as comprehensive term; it contains different shades of meaning.

3 4

The Encyclopedia of Social Science, Vol. VII-VIII, p. 529.

Community Orientation Programmes Attracted PublicPatronage.

No identical concept is found about it. Different societies and different countries are having its different meanings. Again, the moral concept of delinquency is quite different from its legal concept.

It also assumes different meanings in different social, cultural, religious and psychological perspectives.

It is commonly used to indicate a crime committed by a juvenile. The nature and character of this crime are different in different societies. Different countries are having different age limits for delinquent persons under their own legal systems.

The outlook of sociologists of different countries are also various as to the nature of the crime to be termed as delinquent activity. Delinquency includes anything done by a delinquent person in deviation of social and legal duty.

Dr. Abdul Hakim Sarker says: “The modern concept of delinquency is the product of legal philosophy distinguishing a youthful offender from a criminal one.” 5 In this correction, Dr. Habibur Rahman delivered the idea in an interview with the reporter of the Weekly Bichitra, Mr. Mizanur Rahman Khan. He says there, ‘the concept of delinquency is very widy. All offences committed by a young person and all his anti-social activities are juvenile crimes. If he is not connected at the right moment, he may be identified as an adult criminal. Virtually, the difference of age is primarily considered as the distinguishing factor between a juvenile delinquent and a criminal.’ 6 So, ‘Juvenile Delinquent’ means ‘a juvenile who has been found to have committed an offence.’

2.2 Juvenile Delinquency in Bangladesh The Bangladeshi Government passed an Act in 1974 7 protecting the rights of child criminals; however, children are continuing to be imprisoned with adults and treated harshly by law enforcement establishments. World Vision has partnered with the Bangladesh Retired Police Officers Welfare Association to heighten awareness and protect the rights of juveniles who break the law.

The numbers of juvenile delinquents are increasing Bangladesh; the rate is alarming in Dhaka city.

One responds source of police claimed that, 40 percent of the arrested criminals are juveniles. They are involved in theft, robbery, hijacking and extortion and they possess different types of deadly weapons including fire arms. They are even involved in killing. In two months of 2002, the police arrested 40 young offenders, who were associated with hijacking. Moreover, young offenders, committed robbery and extortion, were arrested. They were arrested with adult offenders. Arrested juveniles are members of organized criminal gangs. 8 5

Abdul Hakim Sarker, “Juvenile Offence in Dhaka City: A Socio-Economic Perspective” (Unpublished Ph.D. Thesis), Institute for Social Welfare and Research, Dhaka University, 1988, p. 23.

6

Mizanur Rahman Khan, “Kishar Sanghosodhani Pratisthane Ekdin: Amara ki Aparadhi”, The Weekly Bichitra, 21 year, 26 June, 1992, p. 28.

7

The Children Act, 1974,( Act No. XXXIX of 1974).

8

The Daily Sangbad, August 27, 2002.

Not only hijacking and extortion, juveniles are involved in killing. Highly placed source of police informed that, juveniles are extensively utilized in the drug business. Drug dealers use the youngsters in carrying and selling drugs.

The Juvenile Development Center 9 in Tongi is one of three juvenile development centers outcast are considered very vulnerable. The police frequently pick-up and bring such children to police stations, from where they are sent to either jail, juvenile development centers, or vagrant homes etc. in Bangladesh that work together with the Bangladesh Retired Police Officers Welfare Association (BRPOWA) and World Vision to adopt appropriate measures for the rescue, eventual rehabilitation, trial, and correction of young children who have broken the law, have been arrested, and charged for committing various crimes. Since 1994, World Vision’s partnership with the BRPOWA has established standards for the treatment of children who have been accused or convicted of committing a crime.

2.3 Causes of Juvenile Delinquency in Bangladesh Social transition, poverty, migration, broken family, surrounding environment, lack of parental control, impact of action movie are responsible for causing juvenile delinquency in Bangladesh. Many young children are migrating from villages to Dhaka and other large cities because of domestic trouble, rural poverty, landlessness, and violence.

They are picked up by pick-pocket gangs, shop-keepers, hotel owners, pimps, and hooligans. Street children are exploited by elderly children, adults and others in position of authority. Another serious problem is the trafficking of children both within and outside the country. Moreover, the children of sex-workers, orphans, and others who are socially outcast are considered very vulnerable. The police frequently pick-up and bring such children to police stations, from where they are sent to either jail, juvenile development centers, or vagrant homes etc. 10 Causes of juvenile delinquency are listed below:

2.3.1 Social Transition The growing industrialization and urbanization gave rise to the problem of Juvenile Delinquency in Bangladesh. Sociologist and criminologists consider delinquency as a result of transforming from 9

The Bangladesh Retired Police Officers Welfare Association (BRPOWA) AND World Vision organized.

10

Lutfer Rahman Shahjahan and Saira Rahman Khan, “Juvenile Justice�, Ruby Ghuznavi, Fara Ghuznavi and Saira Rahman Khan, eds., Child Rights: Reality and Challenge, (Dhaka: The British Council, 2001), p.123.

peasants to industrial labour class. Mainly Bangladesh is still an agro-based country. Industrialization has not taken expected pace In its transition from agriculture to industrialization, Bangladesh society is undergoing rapid social change. Since the transition not yet complete, since Bangladesh is preindustrial, it is a mixed society, not completely traditional and not fully modern. An examination of the economic, political, and religious institutions reveals a conflict between traditional and modern values, neither of which dominates the lives of the people. This conflict has given rise to anomie and creates greater vulnerability to delinquent behavior. 11 2.3.2 Poverty Many people of this country are very poor. They live below poverty line in terms of the true indicators of poverty. Because of huge economic disparities a large number of people in Bangladesh live below minimum subsistence level. This economic pressure compels many children to involve in delinquent activities.

In many cases poverty constitutes the root cause of juvenile delinquency. Poor parents cannot get their children educated and developed good education or vocational career rather they want their children to assist them in work field. Some times parents cannot provide their children with all basic necessities. The poor children, therefore, start to do some activities for their existence. The children do not which activities are lawful and which are not. By tacking advantages of poor economic condition the criminal gangs deploy poor children in criminal activities. For example; they are engaged in pick pocketing and petty thievery.

2.3.3 Problematic Family Problematic family constitutes a principle cause for the deviation of the juveniles. Absence of father or mother due to death or divorce, lack of parental control, lack of home discipline, bad relation between father and mother, presence of criminal among the members of family are the principle indications of problematic family. Due of these problems the mental development of children remains incomplete, for which their behaviour become abnormal. The children of 8-14 age of group take resort to crime when their parents fail to guide them properly. Children adolescents tend to follow bad activities of others if their families and environments are not healthy.

2.3.4 Migration People are migrating from villages to cities because of loss of land by river, and unemployment. They take shelter in slum areas, pavements and streets and remain deprived of basic necessities. Father and mother go out to earn their livelihood, leaving their children uncared and unattended. In this situation 11

Mohmmad Afsaruddin, Juvenile Delinquency in Bangladesh, University of Dhaka

politicians used children in dawn to dusk strike, and the children either picket or ransack cars or glasses of shops. Moreover, the criminals utilize children in pick-pocketing and petty thievery.

2.3.5 Surrounding Environment and Company Sometimes juveniles become delinquent because of bad company and surrounding environment. Due to tender age they cannot understand the far-reaching consequences of their activities. They can be trapped into surrounding environment of slum area, and smuggling zone. Because of evil company sometimes juveniles go to brothel, consume drugs, commits different kinds of criminal activities.

2.3.6 Action Movie Action movie and satellite have negative impact on the mind set of the young boys and girls. The violence and sex depicted in the movies incite juveniles to go brothel and to commit unauthorized activities.

2.4 When Children Contact with Law Come into Children come into contact with law under various situations. Firstly, in districts beside border areas, like Jessore, Satkhira, Khulna, Comilla, Meherpoor, the children are used for carrying illegal drugs and prohibited products. After arrested by the police they come into contact with law. Secondly, police arrests child roaming in the street under the provisions of the Vagrancy Act, 1943 or the Code of Criminal Procedure. Thirdly, lost children, who cannot tell their address or whereabouts of their parents, come into contact with law. Fourthly, children come into contact with law when declared ‘uncontrollable’ by the parents/guardians or the police under the Children Act, 1974. Fifthly, slum children, whose parents cannot afford them to go educational institutions are arrested by the police as precautionary measures before strikes under section 54 of the Code of Criminal Procedure.

Sometimes these children are used by the politicians for picketing during strikes and are arrested by the police. Sixthly, after committing offences under the Penal Code or the Children Act, 1974, children come into contact with law. Seventhly, girls are arrested on suspicion of engaging in prostitution and therefore come into contact with law. Eighthly, victims of trafficking come into contact with law when they are rescued by the police. Ninthly, girls who run away come into contact with law after cheated by their boy friends.

Chapter 3 JUVENILE JUSTICE SYSTEM

Everyday thousands of children around the around get caught up in adult formal justice system.

Children are arrested and detained by the police, tried by magistrates and sent to institutions including prisons, under system of justice which in many cases are setup for adults. 12 Although there are explicit international guidelines on the proper administration of Juvenile Justice and on community based conflict resolution and rehabilitation of child offenders, children’s right and special needs are being ignored. These children are alleged to have come into conflict which the law of the land.

Large numbers of children in conflict with the law are socio-economic victims, denied their rights to education, health, shelter, care and protection. Many of them had little on no access to education; many are working children. Some children have left their homes and taken to the streets to escape from violence and abuse at the hands of their families. Some are forced to make a living on the streets, in order to survive. Others have been abandoned by their families and left to fend for themselves and sometimes for younger siblings. These children, who are abandoned and destitute, are also at high risk of sexual exploitation, trafficking and becoming involved in substance abuse and the drug trade through Peer influence or the influence of the adult criminals.

For children in conflict with law the process of arrest trial and custody destroy their childhood as a result of being denied their right to, for example, Family life education, Care, Protection an Play.

Many of them little chance of rehabilitation and reintegration into Society; discrimination against children who have been in conflict with the law, together with deprivation and poverty limit their opportunities for developing into active and contributing adult citizens.

Children who come into conflict with the law as a result of being accused or surfeited of committing a Crime are at greatest risk of having their fundamental rights violated. 13 For this reason, the convention on the Rights of Child (CRC), 1989 established the following as Core guiding Principle for treatment of in conflict with the law: “State parties recognize the right of every child alleged as, accused of, or recognized as having infringes the Penal Law to be treated in a manner consistent with the Promotion of the child sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamentals freedoms of others and which takes into account the child age and the desirability of promotion the child’s reintegration and the child’s assuming a

12

Mabel Wong and Nikhil Roy, Juvenile Justice: Modern Concept of working with Children in conflict with the Law, (Dhaka: Save the Children UK, 2004), p.11.

13

UNICEFInterParliamentaryUnionGuide107.pdf,2007,[http://www.juvenilejusticepanel.org/resources/? act=res&cat=&nod=-root-&id =UNICEFInterParlimentaryUnionGuide107&start=11, lastvisited 12 Jan 2010].

construction role in a society”. 14 To this end, State Parties are required to establish law, Procedure, Authorities and Institution specifically applicable to children alleged as, accused of or recognized as having infringed the Penal Laws. In Bangladesh, the Justice for both children in conflict with the law and children in need of protection are governed by the Children Act, 1974 and the Children Rules, 1976.

The Children Act, 1974 is the primary Juvenile Justice model statute. It provides for informal processing of a youthful offender (Separate court separate court rooms restriction on the principal of public and open trial, involvement of Probation officer, Parents and guardians and so forth); Prohibits convention and sentence of imprisonment by providing for housing and detention of young offenders in Certified institutes and approved homes rather than jail; and other such measures of custody, protection and treatment.15 3.1 History of Juvenile Justice System 3.1.1 International View The official start of Juvenile Justice of occurred in Chicago, U.S.A. in 1899 with the founding of the first Juvenile Court. There after within 20 years Juvenile Court was replicated throughout Europe. The first expression of international concern about the situation of children came in 1923 through “Declaration Geneva” under the ages of League of Nations. In 1948 General Assembly of the United Nation as adopted a new instrument named “Declaration of the Rights of the Child”, containing ten basic principles of child welfare and protection. 16 In international arena the focus on children was sharpened in 1979 when Poland Placed a formal Proposal and General Assembly unanimously adopted the Convention of the Right of the Child on 1989.

The CRC is the first legally binding international instrument to incorporate the full range of human right civil, cultural, economic, political and social rights. It was designed to look at children as entire human being and because “Umbrella Rights” Article 37 and 40 qualified by Article 3 state that in all actions whether undertaken by public or private social welfare Institutions, courts of law, Administrative Authorities of Legislative Bodies, the Best interest of the child shall be Primary Consideration.17 3.1.2 Domestic View 14 15

Convention on the Right of the Child, 1989, Art. 40.

Shahdeen Malik, The Children Act, 1974: A critical commentary, 1st ed., (Dhaka: Save the Children UK, 2004), p. vii.

16

M. Enamul Hoque, Under-Aged prison Inmates in Bangladesh: A Simple Situation of Youthful Offenders in Greater Dhaka, (Dhaka: Save the Children UK, 2008), p.7.

17

Ibid,, p. 7.

The edifice of Juvenile Justice system in Bangladesh is founded on the Children Act, 1974 which has replaced the Reformatory School Act, 1897 and the Bengal Children Act, 1922 together with 29B and 399 of the Code of Criminal Procedure (Cr.P.C) Chronologically the children Act Precedes “the convention on the rights of the child 1989�. Bangladesh is one of the first countries to sign and ratify the United Nations Convention on the Rights of the Child (UNCRC).18 Since the ratification some significant strides have been made towards its implementation. However, it is a long way to attain the desire goal. In Bangladesh, laws regarding children rights and protection are not contained in our statute rather they are present in various laws and statutes e.g. The Constitution, the Penal Code and the Children Act 1974.19 The Children Act, which actually predates the UNCRC by 15 years categorically, Prohibits death sentence and life imprisonment against a child can only be given in very special circumstances.

Generally, a certified institution has been recommended for detention of youth. 20 Children are also protected by this law from abusive parent and guardians. Victimized child may be committed to certified institute or approved Shelter Homes.

3.2 Definitions of Juvenile Justice Juvenile Justice is about not only the treatment of children in conflict with the law, but also about the root cause of offending behavior and measures to prevent such behaviour. 21 Work in the field of Juvenile Justice therefore has two major strands: Prevention and Protection.

Prevention: This work aims to ensure the children do not come into contract with the formal Criminal Justice system. The cause of children offending are wide ranging are complex, and include poverty, broken homes, lack of education and employment opportunities, Peer Pressure and lack of parental guidance. These causes need to be tackled with a range of social and economic intervention, including programs for education, poverty reduction, skills development, parent counseling and job creation.

Protection: At the same time, measures are needed to protect children who are already in conflict with the law, in order to deter them from re-offending and to promote their rehabilitation and smooth their reintegration back into society. Programmers and Projects that focus of the following features which are: Advocating for law reform, to ensure that national legislation conforms with international standards and guidelines on Juvenile Justice issues for key members of government, criminal justice agencies and civil society, Diversion Project that aim to keep children away from the formal criminal justice system by resolving conflicts within the community.

3.3 Juvenile Justice Work 18

Ibi. p. 8.

19

Ibid., p. 8.

20

Ibid., p. 8.

21

Mabel Wong and Nikhil Roy, ibid, p.12.

The goal of Juvenile Justice Work is the establishment of a fair and humane system of justice for children which is based on the rights of the child, applies the principles of restorative justice, Puts the best interests of the child first, Focuses on Prevention as Primary objective, Makes custody a sanction of last resort and for the shortest Possible Period of time while talking into account the effects on the victim and community.

Chapter 4 ADMINISTRATION OF JUVENILE JUSTICE IN BANGLADESH

The process of arrest, trial and sentencing can be immensely frightening and damaging for a child.

International rules guidelines promote and outline alternatives to intimidating formal court procedures, including the use of diversion. However, where cases involving young offenders do come to trial, the court system needs procedures that protect the best interests of the child. For example: informing parents and family at point of first contract with the formal system, ensuring regular and free access to legal aid and legal representation, ensuring that children are supported throughout their court attendance by an appropriately trained and impartial person, ensuring that language used in court is understandable to the child judicial hearings which include specially trained lawyers and judges. The court should be able to turn to a range of legislated options that are in the best interests of the child. It should also be able to use bail and or some other measure in order to ensure children are not remanded in custody. 22 In 2004, Bangladesh raised the minimum age of criminal responsibility from seven years of age to nine. Criminal liability of children between the ages of nine and twelve is subject to judicial assessment of their capacity to understand the nature and consequence of their actions. 23 While this amendment has made a modest improvement, the minimum age is still far below international standards. Another concern is that the current protections for child offenders do not extend to all children under the age of 18.

Under the Children Act, 1974 “child” and “youthful offender” are defined as a person under the age of 16.24 Children between the ages of 16 and 18 are treated as adults.

4.1 Establishment of Juvenile Court

22

Mabel Wong and Nikhil Roy, ibid., p. 78.

23

Penal Code (Amendment) Act, 2004, Ss. 82 -3.

24

Ibid, s. 2.

The Children Act, 1974 presents that any case in which a child is charged with the commission of an offence should be tried in a juvenile court. The government may establish one or more such courts in the country25 besides when a juvenile court established in a local area the High Court Division, a Court of Session, a Court of an Additional Sessions Judge and of an Assistant Sessions Judge, a SubDivisional Magistrate and a Magistrate of the first class shall have the power to try any cases as Juvenile Court.26 Thus though the Act provides for establishment of Juvenile Courts it also suggest ways for implementing the law if separate court is not possible to establish.

In Bangladesh, there are only three Juvenile Courts in Tongi, Jessore and Konabari correctional institutes. And there is no Juvenile Court either in Khulna or Barisal or other district headquarters and there are few Courts are exercising the power of a Juvenile Court though it is possible for all the courts to act as a Juvenile Court without any Gazette Notification. 27 The magistrates of these courts are not well aware of juvenile justice. The magistrates have a tendency to follow the Code of Criminal Procedure rather than the procedure laid down in the Children Act, 1974.

4.2 Sitting of Juvenile Court Juvenile Court should hold its sittings at least once in a week or as often as may be necessary and the Court should as far as may be practicable sit in a building or room different from that in which the ordinary sittings of the Court are held, or on different days or at different times from those at which the ordinary sittings of the court are held.28 Most often, The Juvenile Court in Jessore correctional institute sits in the official chamber of the concerned Magistrate. But in Khulna and Barisal there are no such arrangements. The arrangement in Dhaka Metropolitan Magistrate Office is more pitiable. The children informed that they can not avail of proper legal aid; the magistrate does not talk with them in the court-room. They exclaimed had they not been in this institute, their case would have disposed of speedily.

4.3 Powers of Arrest and Arrest Procedures The Police have wide discretionary powers to arrest children under a variety of laws. The Children Act, 1974, the Vagrancy Act, 1943 and the Suppression of Violence against Women and Children Act, 2000 give police the authority to take children into custody on very broad grounds, including for prostitution, begging, being in the company of a “reputed criminal or prostitute”, being “like to fall into bad association or to be exposed to moral danger”, or being a victim of crime. 29 Both children who have committed crimes and children in need of protection are processed through the police 25

Ibid, s. 3.

26

Ibid, Ss. 4 and 5.

27

Ibid, s. 4.

28

Ibid, s. 7 and the Children Rules, 1976, Rule 3

29

Ibid., s. 32.

station and subject to involuntary detention in a remand home or other “place of safety”. Article 54 of the Code of Criminal Procedure, 1898 and the Dhaka Metropolitan Police Ordinance allow police to arrest anyone on the grounds of “reasonable suspicion” that the person has been involved in a criminal act.

The committee on the Rights of the Child has expressed concerned at the incidence of violence, including sexual abuse and physical brutality, directed at children by police officers, and has called for the state to take all necessary measures to prevent and punish police violence.

The Children Act, 1974 does not contain any special provisions limiting the use of physical force, restraints or handcuffs in the arrest of a child, nor does it have any special provisions with respect to the talking of statements or confessions from children.

When a child has been arrested, the police are required to immediately notify both the probation officer and the child’s parents or guardian. 30 However, in practice this is generally not done, often because the police do not have time or resources to trace parents. 31 Furthermore, some police reportedly deliberately misstate the child’s age on the charge sheet in order to avoid the added procedural bother that flows from identifying him/her as a child.

Children subject to arrest must be brought before the Court within 24 hours. Although the Children Act, 1974 states that children may be kept in custody at the police station only if arrangements are available to keep them separate from adults, in practice children are often mixed with adults in police lock-ups. Police contend that, in the absence of adequate facilities they are compelled to detain children in the jails with adults until they are brought to Court.

4.4 Bail and Pre-trial Detention Under the Children Act, the officer in charge of a police station has the authority to release a child on bail, even for a non-bail able offence. 32 This provision potentially gives broad scope for the police to prevent children from being unnecessarily detained in police lock-ups. However, in practice this authority is rarely used, reportedly because police are unaware of the law, or do not have the resources to trace parents.33 The law itself places restrictions on their authority, stating that the police should not release a child if it will “bring the child into association with reputed criminals”, “expose him to moral danger”, or where release would “defeat the ends of justice”. These grounds are broad and do not promote the minimum use of detention. When a child who has been arrested is brought before the Court, the Court may release the child on bail or order him/her to be detained in a remand home or place of safety. 34 There is no stated preference for a non-custodial option. The Children Act, 1974 30

Ibid, Ss.13 (2) and 50.

31

Mizanur Rahman, ibid., p. 25.

32

Ibid, s. 48.

33 34

Mizanur Rahman, ibid., p. 25.

Ibid, s.49.

does not contain any special considerations for the granting of bail to children. There are no limitations on the duration of pre-trial detention, and children can languish for years waiting for their case to be determined by the Courts. Many are eventually found not guilty by the Courts due to lack of evidence.

Children who are subject to pre-trial detention may be sent to one of the three specialized Remand Homes (two for boys at Tongi and Jessor, and one for girls at Konabari). Although these Remand Homes are located on the same grounds as the Child Development Centers, children who are on remand are kept under full-time confinement and are not permitted to take part in education classes, trade course or games and cultural activities.

Furthermore, despite the fact that the children’s remand homes are consistently operating under capacity, the vast majority of children who are detained while awaiting their trial are sent to regular prisons. For example, in one-four month period between October 2006 and January 2007, 476 children were sent to Dhaka Central Jail, while only 19 were sent to Tongi Correction Centre. The police note that they do not have vehicles to transport children out to Tongi, Which is approximately 20 kms from Dhaka. Due to lack of separate facilities, children in jails are generally not separated from adults and are subject to abuse.

4.5 Juvenile Court and Trial Proceedings The Children Act, 1974 calls for the designation of juvenile Courts, specialize Juvenile Courts, and requires courts of all levels to follow the special court procedures when hearing cases involving an alleged offender under the age of 16. 35 When hearing juvenile cases, the Court should sit in a different building or room from the ordinary court sitting, or on a different day or time of day. 36 The Court is closed to the public, and the media is prohibited from disclosing the child’s identify. 37 Proceedings must be conducted in as simple a manner as possible and in a “home-like atmosphere”. 38 When being brought before the Court, children should not be under the close guard of a police officer, but should be permitted to sit in the company of a relative or probation officer. 39 The child’s parents or guardian have the right to be present, and may be required by the Court to attend.

The existing Juvenile Courts are no different from adult courts in terms of their physical design, and tend to re-create the same formal environment as the regular courts. They have limited jurisdiction, and cannot hear cases of children who have committed serious offences. Most children in conflict with the law are therefore referred to the regular courts. While children’s cases should be referred to a designated juvenile magistrate, in practice this does not always occur. Most Courts do 35

Ibid, Ss. 3 and 4.

36

Ibid, s. 7 (2).

37

Ibid, Ss. 9, 13 and 17.

38

Ibid, s. 4.

39

Ibid, s. 4.

not comply with the requirement to separate juvenile cases and deal with them at a different time of day then the adult proceedings. The Children Act, 1974 is reportedly not well-known by magistrates, and even when they are aware there is still the tendency to approach cases involving children like ordinary criminal matters. Magistrates do not communicate directly with the child, and it has been noted that children exhibit a greater deal of fear in court and sometimes cry. Although there is a legal aid system in place, many children are unrepresented, or are taken advantage of by unscrupulous lawyers. When being transported from the police station to the court, children are packed into ill ventilated prison vans together with adults. While waiting for their cases to be heard, children are kept in the court custody cell, sometimes for five or six hours, along with adults. There continue to be incidents of children being brought into court in handcuffs.

Children who are arrested under the Vagrancy Act are taken before the Special magistrate at the Vagrant Reception Centre, rather than the Juvenile Court. Hearings are reportedly very brief, and children are generally not given the opportunity to speak. The Vagrancy Act does not provide a fixed time for confinement, and children may be detained there for lengthy periods of time, particularly if they are unable or unwilling to provide the address of a parent or guardian 4.6 Sentencing When making an order under the Act, the Court must take into consideration the character and age of the child; the circumstances in which the child is living; and the report from a Probation Officer as to the child’s background and family history. 40 While probation officers may be instructed by the court to prepare a social inquiry report, in practice these are rarely requested. 41 Upon finding a child under the age of 16 guilty of an offence, the Court may impose one of the following dispositions which are: Admonishment and discharge, Release on probation in the care of a parent or other fit person, and under the supervision of a Probation Officer for a period of up to three years, Commitment to a certified institution (now a Child Development Centre) for a minimum of two years and maximum of ten years, but not extending beyond the age of 18 years,. If the offence is serious in nature of the child is “of so unruly or depraved of character� that he/she cannot be placed in a certified institution, the child can be imprisoned for up to the maximum time stipulated for that offence in the Penal Code.

Children between the ages of 16 and 18 are not covered by the Act, and are therefore subject to adult sentences. While the Act states that no child shall be subject to the death penalty, this applies only to children under the age of 16, not 18, as explicitly required by Article 37 (a) of the CRC. The Children Act, 1974 provides limited scope for non-custodial dispositions. Sentences are often quite severe and disproportionately heavy, and there are no special protections at all for children between the ages of 16 and 18.

40

Ibid, s 15.

41

Mizanur Rahman, ibid., p. 20.

4.7 Conditions in Detentions There are three specialized institutions for the detention of child offenders, recently renamed Child Development Centers (KUK), which are under the responsibility of the Department of Social Services of the Ministry of Social Welfare. There are Centers for boys at Tongi and Jessore, and one for girls at Konabari. These are large institutional centers (150-200 children each), and care for a mix of children in pre-trial detention, child offenders under the age of 16 who have been sentenced by the courts and children voluntarily admitted by their parents for being “uncontrollable’. One new KUK is under construction in Joypurhat district, and three more are in the process of receiving approval. Each would have a capacity of 300. The KUK provide general education up to primary level and some vocational training. Children also participate in weekly cultural programs, sports and exercise. Each has at least one social case worker on staff to provide individual and group counseling and to promote behavioral development. The Centers are housed on quite large grounds, with gardens and facilities for outdoor games. Although the stated objective of these Centers is to promote the rehabilitation and reintegration of children, in practice they do not have the required skills or resources to fulfill this objective effectively, and have been criticized for being simply places of confinement.

Children are also subject to detention in regular adult prisons. Despite the fact that the KUK are consistently operating under capacity, the police and Courts continue to send children under 16 to the adult facilities. Overcrowding in prisons is a chronic problem, and nutrition and sanitation are poor.

There are limited recreation facilities, and all convicted prisoners are required to perform manual labor. Parents reportedly are required to pay a fee to visit children in jails. Although the Act states that they must not be allowed to associate with adult prisoners, 42 in practice this is not always respected.

There have been numerous reported cases of children being subjected to physical and sexual abuse in jails.

4.8 What is Committal?

The court may order a child in respect of whom an offence is committed to be committed to a certified institute or an approved home or may be committed to the care of his parent, or guardian, or a relative or other fit person43 and the court which makes an order committing a child to the care of his parent, guardian or other fit person may in addition, order that he be placed under supervision. 44 Though it is necessary that the juvenile offenders or victimized children should as far as possible be kept within the society and among community, the above provision are not exercised accordingly.

There is no category to distinguish and determine whom to be let out in community and whom to be kept inside the correctional institute.

42

Ibid, s. 51 (2).

43

Ibid, s. 58.

44

Ibid, s. 59.

4.9 Age Determination When it appears to the court that a person charged with an offence is a child, the court shall make an enquiry as to the age of that person and shall take such evidence and shall record finding thereon. 45 In fact, very few Courts take initiative to determine the age of the juveniles. Where police arrest juveniles under Arms and Explosive Act, Women and Child Repression Act etc. the Judges try them under those laws in a manner prescribed to try an adult person. The Judges also convict them under such laws.

4.10 Probation Officer for Specialized Assistance Juvenile Court may appoint Probation Officers from among suitable persons in the district, if there is no Probation Officer in its area and may appoint a Probation Officer for a particular juvenile. Duties of the Probation officer include: to visit or receive visits from the child at reasonable intervals; to scrutinize that the conditions of bond are fulfilled; to report the court as to the behavior of the child; to advise, assist and befriend the child and when necessary endeavour to find suitable employment; and perform any other duty which may be prescribed. 46 Probation Officer may be appointed under the Social Service Department and their number is very few. In most of the district Social Welfare Officer has to perform the job of Probation Officer.

Chapter 5 JUDICIAL ACTIVISM FOR THE PROTECTION OF CHILDREN IN BANGLADESH 5.1 Prohibition on Joint Trial Despite the authority for joint trial in some circumstances where persons who are accused of commission of the same offence in the same transaction the Children Act prohibits the proceedings of

45

Ibid, s. 66.

46

Ibid, s. 31.

a child together with an adult. 47 Therefore, the Act is an exception where a separate judicial proceeding for a child offender is required though he/she commits an act, which is criminal by nature, with an adult. In other words though a child and an have committed an act of criminal nature jointly their trial will not be held together as required by the Code of Criminal Procedure, 1989. A child will not face a judicial proceeding jointly with an adult. 48 The issue of joint trial of a child with an adult has been decided in a number of cases. For example, in Shiplu and another vs. State,49 Shiplu, a boy below 16 years of age was tried with his mother for the killing of Rachana Begum under section 302/34 of the Penal Code, 1860. They were convicted by the trial court and sentenced to imprisonment for life and to pay a fine of Tk.5000, in default, 10 suffer simple imprisonment for one year more.

In the appeal, preferred by Shiplu, the conviction of the trial court was invoked, by the appellant’s advocate, to be set aside for two reasons. First, Shiplu was a child at the time of the trial and secondly, trial of Shiplu was not taken place in a juvenile court.

The first question that was raised by the appellant’s advocate is that appellant Shiplu was a child at the time of trial. Therefore his conviction is in contravention with section 6 of the Children Act which prohibits joint trial of a child offender with an adult. In addition, the appellant’s lawyer argued before the court that it was the duty of the trial court to make an inquiry as to the age of the appellant Shiplu which was not done by the trial court at the time of trial. Therefore, the trial of appellant Shiplu, jointly with an adult, suffers from want of jurisdiction.

It is noted that according to section 6 of the Children Act joint trial of a child with an adult is prohibited. Therefore, the appellate court (HCD) accepted the disposition of the appellant’s lawyer and issued an order that the conviction, as given by the trial court, would be set aside. It also condemned the trial court for not having taken into consideration the provisions of the Children Act while dealing with a child. The court observed: Having considering this question in the light of the evidences on record, we held that the trial court failed to apply its judicial mind as to the age of the appellant Shiplu, who appears to be below the age of 16 years at the time of trial. This makes the order of conviction and sentence passed by the trial court upon appellant Shiplu illegal and the impugned judgment and order are liable to be set aside for want of jurisdiction.

There is no doubt that the ultimate aim of the Act is to prevent any exposure of the child offender and therefore it envisages for a separate trial and prohibits joint trial of a child offender with an adult.

5.2 Prohibition on Public Trial 47

Code of Criminal Procedure, 1898, s 239.

48

The Children Act, 1974, s. 6.

49

49 (1997) DLR, 53.

Public judicial proceeding of a child offender is prohibited under the juvenile justice system drawing by the Children Act. According to sections 9 and 10 of the Act except members and officers of the court, parties of the proceedings, parents or guardians of the child and such other persons as the court thinks fit, no one will be allowed to present during the proceeding of a juvenile court. This is, one might say, an exception to the constitutional guarantee that the trial of a person shall be held in the open court. It is also a deviation from international norms and procedure of the criminal trial.

Article 35 (3) of the constitution of Bangladesh provides that “every person accused of a criminal offence shall have the right to a speedy and public trial�. Here the word public means the court will be accessible to the entire person generally at the time of trial. Besides, the two most international human rights instrument; the Universal Declaration of Human Rights, 1948 and the Covenant on Civil and Political Rights, 1966 reaffirm the principle of open judicial proceedings as of an accused person.

This deviation from public and open judicial proceedings as guaranteed by the constitution, in the case of a child offender, means that the juvenile trial is an exceptional criminal proceeding. In this proceeding the objective of the court is not to punish a child accused of commission of an act of criminal nature. The court will not allow the harmful exposure of the accused child either.

It is noteworthy that the Children Act provides for not only life separate trial procedure of a child offender but also it advocates for a separate court room, separate court building etc. 50 This protection is to ensure the well being of the child offender and obviously for reintegration of the child in the society. Thus a judicial proceeding under the Children Act is not a proceeding to resolve disputes between parties but a proceeding to provide for custody, protection and treatment of children. 51 5.3 Determination of the Age of a Child Different laws in Bangladesh provide with different definition of a child on the basis of the age limit.

A child, according to the Children Act, is a person below 16 years of age. There is a widespread allegation that police never mention correctly the age of a child offender in the charge sheet. Two things, (a) absence of birth registration and (b) negligence on the part of the police to inquire into the date of birth properly sometimes create a hardship for the court to determine who is a child.

Moreover, police always try to present a child as an adult before the court in order to avoid some corresponding afterwards. Therefore, court is die ultimate authority commeasure the age of a child offender the most cases. Therefore, determination of age of a child by the court becomes a custom in our Administration of justice system and the court solely depends on the visual discretionary power.

In the other hand there is a judicial debate on which date, the date of commission of the offence or the date of trial/charge sheet will be relevant to determine the age of a child. In the Mona @ Zillur Rahman vs. State 52 the Appellant Division took the elate of framing of the charge or holding the trial 50

State vs. Roushan Mondal, 59 (2007) DLR, 72.

51

Shahdeen Malik, ibid, p. 73.

52

23 (2003) BLD, AD, 187.

as the elegant date to determine whether the accused is a child or an adult. The sorts facts of this case was lat the accused convict field a leave to appeal petition against the judgment and order passed by a vision bench of the High Court Division. Zillur Rahman was charged under section 302 of the Penal Code, 1860 and was sentenced to suffer imprisonment for life and to pay a fine of Tk. 5000 if in default to suffer rigorous imprisonment for further six months. The learned advocate for the petitioner advanced only one point, while moving leave to appeal petitioner before the court, at the time of commission of the alleged offence the convict petitioner was below the age of as such his trial could not be held legally with an adult co-accused. The Court revealed: The counsel for the petitioner fails to convince us by presenting any material on date from the Evidence on record, or from the judgments of the courts below that the petitioner was below 16 years the time of framing of charges and holding of trial. We see that the HCD while considering this the legal conflict was not satisfied because there was no data or material that the convict Stoner was below the age of 16 at the time of trial. We find that in view of the aforesaid legal vision the HCD was not committed and illegality.

This is mention worthy that much earlier in the Bimal Das vs. State 53 the High Court Division also took same standing that the of framing of the charge sheet or the trial will be relevant to determine age of a child. In this case appellant Bimal Das was charged and tried under section 376/4397 of the Penal Code, 1860 for the offence of rape of one maid servant named Seema Rani Das while she was at the age of the 15 years 11 months and 10 days. During the trial learned advocate put varied a petition before the court to transfer the case to the juvenile court since the appellant was tried according to the Children Act. The trial court rejected the petition and consequently the slant field a petition to the High Court Division which observed that passage of time did not for the purpose of computing the age of the appellant. The court revealed: A close scrutiny of section 6 of the said Act will show that the age referred to in the section relates the age of accused when he is “charged with or tried for� and not to the age when the offence has been committed.

However, in the Bablu vs. State 54 the High Court Division took an opposite view that the date of demission of the offence will be the relevant date do determine whether an accused is a child or a Suit. It is also worthy of mentioning that in the State vs. Deputy Commissioner, Satkhira.55 The High Court Division also look the date of commission of the act of criminal nature as relevant date to determine the age of an offender.

Therefore, subject to the law of authoritative precedent, the date of framing of charge or the date of holding trial will be the relevant date to determine the age of a child offender. The authoritative decision of the Appellate Division must goes against the interest of the child offenders as well as the 53

46 (1994) DLR, 460.

54

1 (1981) BLD, 454.

55

45 (1993) DLR, 643.

very objective of the Children Act. If we took the date of framing of the charge to determine the age of child will be deprived of the benefit of the juvenile trial, as was in the case of Bimol Das. For example, if a child committed an offence when he/she was at the age of 15 and half an year will turn to an adult if the charge is framed against him/her by the court six months later. It is noted that framing of the charge mostly depends on the police report and in a country like ours it would be a foolish aspiration to get police report within six months.

It is noteworthy that the authoritative decision of the Appellate Division has been overlooked in number of cases. Especially; in the Roushan Mondal’s case a high court bench overwhelmingly emphasized that the date of commission of the offence will be the relevant date to determine of the child. It also termed the interpretation of the superior court that the date the date of the law. The court observed: In at least two decisions of our High Court Division the relevant date has been taken to be the date of occurrence, which we believe, with respect, is the correct approach. On the other hand there are many decisions of our superior courts holding the view that the relevant date is the date of framing charge or commencement of trial. In our humble and respect view, this misinterpretation arose initially due to the inaptly applied wording of section 6 (1) of the Act‌ It is the act of the youthful offender done in a moment of indiscretion due to his lesser mental faculty that is being targeted by Act. Therefore the relevant point in time at which qualify for the benefits of the Act must be the time of the commission of the offence.

5.4 Prohibition on making address, particulars etc One should not forget that the fundamental aim of the juvenile justice system is reintegration of the child in the society. Taking this principle aim of juvenile justice jurisprudence into account the Children Act prohibits publication of particulars of a child offender in any newspaper, magazine etc, 56 except with the order of the court. Nor will any particular of any case or proceeding under the Children Act in which a child involves which may disclose identify of the child directly or indirectly be published. The Act aims to protect a child offender from exposure though media which may affect adversely the reintegration process of the child accused of commission of an offence. Privacy will be maintained not only in the judicial proceeding but also in all stages of the administration of justice while dealing with a child.57 5.5 Look to the Offender not to the offence 56

The Children Act, 1974, s.17.

57

Ibid, s. 12.

An important aspect of the Children Act is that it advocates for reintegration of a child offender in he society. Therefore, the Act appeals to the court to look to the child offender not to the act committed by it. That the court will take into account the character, age, circumstances in which the child is living and such other mailers as the court things fit before passing a sentence. 58 Unlike the criminal tactic the court will not determine the guilty of a child offender based on the act alone. Taking into consideration section 15 of the Children Act the court in the State vs. Deputy Commissioner, Satkhira,59 observed: Section 15 shows the factor to be taken into consideration for passing orders by the Court with regard to juvenile offenders. The character and the age of the child and the circumstances in which a child is leaving are to be considered. Importance of separate judicial institutions and reformative approach of the court while deciding cases involving child offenders is also reiterated in a number of cases. In Bimal Das vs. State Case60 the court observed: Juvenile Courts are created in recognition of special needs of the young offenders so that a child appearing before the court does not come into contact with adult offenders or come out of trial with necessary and unavoidable stigma to his name or do not pass through the trauma and exposure of public trial. This becomes apparent from the fact that the Act deals in detail how the trial of an offender below 16 years of age shall be held under special circumstances such as not every one is allowed to be present in the court room at the time of trial, the attendance of had a offender may be dispensed with, several factors such as character, age, circumstances have to be taken into consideration by the court before passing an order.

5.6 Restrictions on imposing punishment It is worthy of mentioning that Children Act is enacted to realize the objectives of juvenile justice jurisprudence and therefore it discourages any sort of punishment for the children come into conflict with law. Section 51 of the Act, in the negative way, prohibits death penalty, transportation of imprisonment of a child offender. The Act encourages imprisonment of a child, accused of commissioner fan act of criminal nature, as a last resort. The court may order for imprisonment of a child offender if he/she is found, upon the report of the probation officer, so unruly or of so depraved character that he/she can not be committed to a certified home and where none of the methods envisages by the act is suitable.61 Therefore, the Act in no way empowers the court to pronounce death penalty for any offence committed of the children irrespective of its seriousness or heinousness. It is to be mentioned here that death penalty under section 302 of the Penal Code, 1860 or any other special laws, such as Nari o 58

Ibid, s. 15.

59

45 (1993) DLR, 643.

60

46 (1994) DLR, 460.

61

Children Rules, 1976, Rules 5-7.

Shishu Nirjaton Doinon (Bishes Bidhan) Ain 2002 is against the spirit of the juvenile justice jurisprudence. It is also contrary to the objectives of the Children Act, the parent legislation in Bangladesh, enacted on the spirit of the juvenile justice jurisprudence. One of the fundamental objectives of the juvenile justice system is to facilitate re-orientation of the child offender in the society. Marginalizing the criminal by imposing punishment, on the contrary, is one of the objectives of the criminal justice system. Therefore, the Children Act imposes restrictions on the court to punish a child accused of commission of an act of criminal nature.

There are few instances earlier whore our highest court deviated from the provisions of the Children Act on the plea that the Act is a general law. For example in Munna and other case two young offenders, below the age of 16, were convicted for murder and sentenced to life imprisonment by the trial court. In the appeal the conviction and sentence passed by the trial court was upheld by the High Court Division on the plea that section 302 of the Penal Code, 1800 provides for no less punishment than life imprisonment. The HCD observed: When sentence for offence under section 302 of the Penal Code, 1860 has no scope to be less than imprisonment for life, such sentence can be conveniently awarded if the child offender is found guilty under section 302 of the Penal Code, 1860 after trial.

Again in Shukur Ali case62 a boy of 14 years of age at the time of commission of the offence was convicted under section 6 (2) of the Nari O Shishu Nijatan (Bishesh Bidhan) Ain, 1995 and was sentenced to death by the trial court. The sentence was upheld by the High Court Division on the ground that the provision of a special law will take precedence over the provision of a general law.

The court revealed: Section 3 of the Nari O Shishu Nirjaton (Bishesh Bidhan) Ain, 1995 has an overriding effect over other laws and this provision will prevail over other laws including the Children Act. This Act has been enacted for speedy trial and deterrent punishment of any person in respect of offences specified.

In view of the above, we find that a minor or a ‘child’ within the meaning of the Children Act who commits an offence under the Nari O Shishu Nirjatan (Biishesh Bidhan) Ain, 1995 has not been excluded from the ambit of the said Ain. In these two cases the highest court unfortunately comes up with a wrong interpretation of the provisions of the Children Act. In addition, the court failed to understand the very objectives, purposes and spirit of the juvenile justice jurisprudence as well as the Children Act. The court further failed to understand that the Children Act is not a criminal law and the trial and punishment provided by the Act is based on the juvenile justice jurisprudence rather than the principle of criminal justice jurisprudence.63 The court also did not take into account the special character of the Children Act that it is enacted for the treatment, care and protection of a special group of human being, i.e. children.

62 63

State v. Shukur Ali, 9 (2004) BLC, 409.

Shahdeen Malik, ibid, p. 125.

5.7 Supremacy of the Children Act, 1974 Confusing standing of the highest court, in some cases, gives rise to a debate on the supremacy of the Children Act. It is mentioned earlier that there are a host of laws dealing with protection and promotion of child rights. Therefore, confusing often arises among lawyers as to provisions of which law will take preference. There are a lot of directions in this respect from the highest court that the provisions of the Children Act will have to be followed by the trial court while dealing with a child offender. For example, in the State vs. Deputy Commissioner, Satkhira 64 case the High Court Division of the Supreme Court held that all subordinate courts including the Courts of Magistrates shall try to follow meticulously the provisions of the Children Act in dealing with the cases of juvenile offenders.

In this case a boy named Nazrul Islam, aged about 14-15 years was implicated falsely for a host of dacoity cases (12 cases) that took place in the different places of the Khulna district. The boy was tried with adult accused persons later and was convicted as well as sentenced to seven years rigorous imprisonment in a case. Though the period of sentence was expired he was not released since there were a number of cases against him. In addition, a ‘custody warrant’ was issued by the Magistrate against him. After publishing this news in a local newspaper the High Court Division issued a show cause notice against the Deputy Commissioner of Satkhira to produce the detenu before the court.

Nazrul Islam was produced before the court accordingly and it was seen by the court that he was detained illegally and without lawful authority. Therefore, the court ordered his release and also declared that the conviction of the detenu is illegal since the provisions of the Children Act were not followed by the trial court.

In addition the court directed the Ministry of Law, Justice and Parliamentary affairs to inform the Sessions Judges of all district to communicate the massage with other subordinate judges that the provisions of the Children Act must be followed while dealing with a child offender. The court revealed: Let a copy of this judgment be further sent to the Secretary, Ministry of Law and Justice. The Secretary of the Ministry of Law and Justice shall inform all the Sessions Judges of Bangladesh pointing out that all the sub-ordinance Courts including the Courts of the Magistrates shall try to follow meticulously the provisions of the Children Act, 1974 in dealing with the cases of juvenile offenders for greater interest of the country.

The much discussed decision where a direction was given by the High Court Division to follow the provisions of the Children Act is the Bangladesh Legal Aid and Services Trust (BIAST) vs.

Bangladesh case.65 In this case the High Court division condemned the District and Session Judge, Comilla for not following the provisions of the Children Act. Short facts of this case is that a boy named Alamgir Hossain bellow the age of 16 years was tried under the Nari O Shishu Nirjatan 64 65

45 (1993) DLR, 643.

7 (2002) BLC, 85.

Daman Ain, 1995 and was convicted as well as sentenced to imprisonment for life. The petitioner argued before the appellate court that section 5 of the Children Act ousted the jurisdiction of any other court over a child below 16 years old and therefore the conviction is illegal and without any lawful authority. In addition the petitioner also argued that in the Shiplu and another vs. State case66 it was held that any order of conviction and sentence passed by the trial court not being a juvenile court in respect of an accused below the age of 16 years is liable to be set aside for want of jurisdiction.

The High Court Division of the Supreme Court accepted the argument of the petitioner and declared the trial and conviction passed by the District and Session Judge, Comilla illegal and without any authority. The court also was on fire over the District and Session judge, Comilla for not following the provisions of the Children Act, 1974. According to the court: Before parting with the mailer we are constrained to put on record that how a Session Judge could ignore the Children Act, 1974more so when previously on several occasions the High Court Division in the different judgments passed, directed all concern to take care as to the trial of juvenile offenders and particularly in the State vs. Deputy Commissioner, Satkhira and other case.

The High Court Division also directed the Deputy Commissioner, Comilla and Divisional Commissioner, Chittagong to instruct the law officers of the Government to lake due care in conducting cases of juvenile offenders. In addition it directed the Registrar of the Supra Court ask for an explanation from the district and Sessions Judge, Comilla as to how he could award sentence of imprisonment for life of juvenile offender and ignore the Children Act and order to all sessions judges of the country advising them to discuss the provisions of the Children Act with judges, officials working under their respective judgeship.

Special character of the Children Act is also re-iterated in the Roushan Mondal’s case. In this it is said by the court that the Act is a special; one since it is dealing with especially the young offender and provisions of no other law will ousted the jurisdiction of this Act over children if not mentioned especially.

According to the court, “the Children Act being a special law in respect of, inter alia, trial of youthful offenders, preserves the jurisdiction over them in respect of all offences under any law unless especially excluded.”

Chapter 6 CONCLUDING REMARKS

6.1 Major Challenges of the Juvenile Justice System

66

49 (1997) DLR, 53.

The Children Act, 1974 has failed to reap its fruit because; most probably the law is inherently weak in various aspects. But, why the Act has failed may be discussed from two points of views: The first may be of sociological nature in the sense that in the legal history of Bangladesh juvenile justice was never a concern of legal study until the present day. The matter was always a topic of social perspective prone to find its link with the breach of social values.

The second one has a concern with legal point in an indirect way. The administration of criminal justice in Bangladesh is a firmly established institution from British period and it is regarded to have a universal criminal jurisdiction against every crime committed. So, to set up a concurrent and adverse jurisdiction against it the piece of legislation should be a very strong and self-contained one.

Although many successes in developing the children justice system of the country in a pro-child manner have been achieved, Bangladesh still has a long way to go. In this journey, many challenges are to be faced. The major challenges can be outlined as follows:

6.1.1 Vulnerability of the Children of Bangladesh Vulnerability of the children of Bangladesh to be in conflict with the law is another great challenge.

Many children of Bangladesh are always likely to be in conflict with the law. Lack of parental care, extreme poverty, lack of education and awareness and lack of access to justice prevailing among huge number of population of the country lead the children to such awesome likelihood. Moreover, extreme poverty and lack of education of a good number of children cause them fall in prey to the criminals.

6.1.2. Development of Policy and Strategy to Promote Diversion Children Development of policy and strategy to promote diversion of children from the formal justice mechanism is a great challenge for Bangladesh. While the handling of a child through formal methods may be justifiable up to a certain extent, an institutional measure beyond a point is likely to become counterproductive for children. Thus, there is need for diversion from institutional mechanisms into more non-institutional alternatives. 67 Day by day, many countries are developing various strategies like caution, mediation, family group conferencing, pre-trial community service etc to deal with children in conflict with the law. Contrarily in Bangladesh, law does not contain adequate provision for diversion of children in conflict with the law. Bail seems to be only pre-trial diversion mechanism available under the laws of Bangladesh.

Moreover, institutionalization, both in law and in practice, is the primary tool used to conflict with the law, regardless of the seriousness of the offence committed. Although the Children Act, 1974 makes provision for two other alternative adjunction options such as admonition and probation. These are hardly exercised by the courts. This aspect of the children justice system of Bangladesh is a threat 67

Sumaiya Khair, ibid, p, 27.

for the well beings of the children. This is because the overuse of institutions for children exacts enormous costs on children, their families, and society. Extensive research in child development has shown that the effects irreversible psychological damage. The negative effects are more severe the longer a child remains in an institution and in instances where the conditions of the institution are poor.

6.1.3 Non-Compliance with International Standard The aims and standards maintained in the local legislation in Bangladesh do not in every aspect show the resemblance of the standards and aims contemplated by the International Conventions. Hence infra-structural facilities should be provided along with flexible and lenient legal norms. If it becomes expedient to keep a juvenile under detention, necessary arrangements should be made to provide the juveniles the facilities that a human being is entitled. The Riyadh Rules 1990 from article no. 31 to 37 has given out the full details of the requirements of detention. Again within the paradigm of our national legal system there are not many scopes for pre-trial probation system. This weak side of the laws should be properly cared about.

About the process of trial stage there are not many discrepancies between International Standards and national legislation as per the text and wording. The prime problem in this respect is lack of proper infrastructure facility and logistic support. Of course the concurrent jurisdiction of criminal courts to try offences of the juveniles as conferred by section 4 of the Children Act, 1974 should be amended forthwith. Only a juvenile court with exclusive jurisdiction should try juvenile cases. Again it should be clearly pointed out in the legislation as to which crimes should be regarded as heinous and which are not. Though detention in remand home is the prime concern of the national legislation the International Standards always put emphasis on a community based correctional system. It is highly questionable whether the method of correction in remand homes in Bangladesh is capable of making a child socially responsible citizen.

6.1.4 International Standard as to pre trial treatment The definition of child is primarily conceived as a human of 18 years. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.

The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. The police, the prosecution and other agencies shall have the power to dispose of such case before final hearing. The police officers who frequently or exclusively deal with juvenile offences should be specially trained.

Regarding this special group of police may be established. Detention pending trial may be used as a measure of last resort and for the shortest possible time. 68 Whenever possible detention pending, trial shall be replaced by alternative measures such as close supervision, incisive care or placement in a family or in an educational setting. The juveniles in detention shall not be discriminated upon their status and civil, economic and political right cannot be denied on this ground.

6.1.5 International Standard as to trial stage treatment The Children Act, 1974 after all contains the provisions which if properly followed shall be able to maintain a good degree of right and security towards a child. 3 (b) (iii) of the CRC 1989 speaks for speedy disposal of a trial to which a juvenile is a party. But this is not always possible when the case is exclusively trialble by a Court of Session or courts established under section 4 of the Children Act, 1974.The juvenile justice system shall emphasis the well being of the juvenile justice system shall system shall emphasize the well being of the juvenile and restriction on the personal liberty of the juvenile shall be imposed only after the careful consideration and shall be limited to the possible minimum. The well being of the juvenile shall be the paramount factor in the consideration of a child’s case.69

6.1.6 Lack of Proper Administrative and other Co-operative It is badly left that there exists a huge gap between administration of justice and enforcing agent.

Police Officials through their corrupt practice are frequently violating the basic rights of the juvenile offenders and remain untouched. There are lots of instances where Investigation Officers have charged children of three or four. Most of the police officers do not have knowledge about the Children Act. Especially, they are confused about the age limit of the child, i.e. whether it is 14, 16 or 18.

Co-ordination is badly needed between the police and jail authority, judicial officers, public prosecutors, engaged lawyers the probation officers. As per the Act, the police officer is under an obligation to inform the Probation Officer within the shortest possible time. Then the juvenile will be handed over to the Probation Officer or to the Place of Safety and will be kept there until the case is finally disposed of. During the trial, both the judicial officers and the lawyers have a very important role to safe guard the interest of the juvenile for proper investigation of the case, proper representation in the court.70 68

Mizanur Rahman, ibid, p. 45.

69

Ibid, p. 46.

70

Ibid, p. 46.

6.1.7 Police Behaviour with the Children In the administration of justice the police play one of the most vital roles and juvenile justice system is not an exception to that. In fact, in pre trial stage police is the most important agent that comes in contact with the juveniles.

Field level police officers have not the least training and orientation on the juvenile justice system.

They often behave roughly towards the children. Only a very few motivated workers in the juvenile justice administration really understand child psychology and sociology. The Children Act, 1974 prescribes separation of children from adults in every possible stage of the juvenile justice system.

The trial and subsequent imprisonment of a juvenile has to be separated from that of an adult. But the fact is children have to remain in police custody, remand under trial stages and various forms of preventive custody together with adult. Children are subjected to long remands in police custody because of courts failure to sit regularly. There are children and adults who have remained under trial for more than 5 years, when the alleged offence deserves an imprisonment of only 2 or 3 years.

Another problem with the police is substitution of physical violence for investigation process in police custody.71 Violence within the police actually considered a very information obtaining process. Every child who has come in contact with police has complained against it.

6.1.8 Others Challenges Lack of logistic support is one of the reasons behind non-implementation of the Act. The arrangement necessary for compliance with the Act is not adequate at all. There are only three correctional centers in this country. So it is not possible in each case to send the juveniles from all over the country to these centers due to shortage of fund, vehicle and manpower. Hence, juveniles are generally kept in jails with prisoners. Again the Act in these cases stipulates separate arrangements for juvenile offenders, and in most cases it is also far away from the practice. Jails in our country are over crowded, so it is not logically possible to make any arrangements for juvenile offenders. Since most of the magistrates have legal backgrounds, they do not understand the inner meaning of a specific law.

Most of the magistrates are unaware of the existence of the Children Act, 1974.72 When youthful offender is arrested, his/her lawyers in most cases conceal his/her age to the court and move for his/her bail. This creates negative impact on the juveniles. In addition to this if, any lawyer tutors witnesses to tell lies in order to secure the bail of a juvenile, the juvenile, the juvenile is encouraged to commit offences.

71

Ibid, p. 48.

72

Ibid, p. 51.

The probation officers are coming from different disciplines; as a result lack of professionalism is evident. In the districts where there is no probation officer, social welfare officer has to execute extra jobs of probation officer.

Most of the adult persons do not adult persons do not have adequate knowledge about the rights of children. As a result, in most cases, adults’ behaviour towards children is not always supportive of the welfare and overall development. The weakest point is children cannot also force the authority to protect their own rights. There is no strong and effective children’s organization, especially in the rural areas, through which children can organize themselves in order to protest against violent activities.

6.2 Recommendations 1. At every police station, there should be separate register about child/ juveniles. When the senior Police Officer go the visit of police stations they would write down in the visitor book after inquiring for the number of arrested child or juvenile and their age another steps which have been taken, seeing the register book.

2. Separate FIR should be given for juvenile delinquents and according to the existing traditional the FIR should be in three copies. Regarding advantages to the trial of juveniles it should be made four copies. As they change of the existing Rule is a matter of time, so the procedure may be carried on doing a photocopy of the original FIR having attestation by the Officer-in-Charge of the police station. This excess copy should be sent to the Juvenile Court.

3. Duties of Probation Officers steps should be taken to set up juvenile Prison Home, Correctional Institutes along with Juvenile Court in other divisional cities. For implementing program, necessary initiatives should be taken by the Ministry of Social Welfare.

4. Almost the one third is female juveniles according to references. As there is no separate arrangement for them, they are passing disgusting life in the jails without being able to return to the normal life. So, it is necessary to set up a separate female juvenile correctional institute at Dhaka for the female juveniles under the supervision of the Ministry of Social welfare.

5. The Social Welfare Department has to take initiatives to find out the juvenile delinquents, which are kept in different jails. Permanent Probation Officers should be appointed in districts for the betterment of probation management. The duty of Probation Officers should be the management probation for the children and first offender who have committed crime for the first time and if necessary After-care-services should be introduced.

6. The arrangement of Remand Home, Juvenile Court or Institute for correctional Services at every Districts for the children or juveniles are yet not possible and so separate arrangement are advised to be accepted. The jail authorities of Central and District jails should take necessary steps to keep the child and juveniles separate from adults.

7. With the assurance of first trial, the separate procedure should be taken for the juveniles of safecustody. They should have to be a correctional centre. So, the mentality to behave rudely with the convict should be prohibited. The separate Register Book (R.B) should be made for juvenile offenders like the under trial prisoner and Convicted Prisoner Register.

8. Every month the lists of the under-trial prisoner and convicted juveniles should be sent to the I.G (Prison), concerned District Social Welfare Officers, Ministry of Law, Justice and Parliament Affaires, and other concerned organizations.

9. The jail authority should have taken the steps to display separate clinical facilities considering the Physical and psychological structure of the child juveniles. The jail authority should keep good look over the convicted prisoners who are in-charge of inside the jail administration such as World Head, Writer, Mate, Night Guard etc. They should show with human and sympathetic attitude towards the children and juveniles.

10. The steps of separate conveyance instead of prison-van should be allowed during their attendance before the court. Necessary all arrangements should be made so that the studying (any Institutional School or Girl’s School) child or juveniles can continue their study during the period of detention without and disturbance or hamper.

11. The introduction of religious and moral education should be made compulsory for the juvenile delinquents. In buildings up one’s human character and moral personality the influence of religious and moral education need to be duly emphasized. A man who is really pious and have the fear of God always keeps in mind about his life after death and his accountability of every of his actions during life to be God This fear of the judgment of actions in the life after death keeps a pious man always abstain from committing any violation of the existing laws, norms moral values etc. Not only in the fear of people’s blame about his deed rather due to the liability towards God. 12. A situation should be created to keeps him aside from committing any such action. If the children from their childhood are assisted with this religious and moral education, a statuary influence will be created upon their character and personality. Therefore, ethical education should be imparted to young minds so as to guide them properly.

13. The juvenile justice administration system should be adopted under the provisions of juvenile justice (care and protection of children) Act, 2004 satisfactorily. The involvement of Judicial Magistrate and Police should still play a dominant role in the working of the Act which should have been assigned to social service organization. Social based education and social awareness is most essential for the protection of the children from delinquents.

14. For the protection of Juvenile Delinquency in Bangladesh the burden duty fall upon state to initiate adequate measures to safeguard children and juveniles against exploitation, deprivation and criminalization as they are a valuable nation asset, besides being the future citizens of Bangladesh.

Otherwise the nation will fall in serious problem that can be major.

15. The government shall establish Children’s Home for the reception of child in need of care and protection. The government also need established of Shelter Homes for destitute and shelter less children. The main object of providing Shelter Homes shall ensure protection and restoration of destitute and neglected children.

16. In view of the above findings it is humbly submitted that many of the sections of the Penal Code 1960, Vagrancy Act, 1943 and Children Act, 1974 are to be amended to cope with changed social situation. Sections 82 and 83 of the Penal Code, section 2 (3) of the Vagrancy Act and section 2 (f), 2 (j), section 7 (1), (2), section 13 (5), section 46, section 31 (1), section 32, 33, section 51 (2), section 53, section 78 are to be amended in order to update juvenile delinquency law in Bangladesh.

17. In Bangladesh the Government should constitute Central or District Advisory Board in every District as the case may be, to advise the government on any of the following maters, a. Establishment of Special Homes. b. Management of Children Home, Special Homes and Shelter Homes. c. Mobilization of resources for running these homes. d. Education training and rehabilitation of children who need care and protection. e. Ensuring co-ordination sand co-operation among various of official and non-official agencies and organization.

6.3 Scope for Further Study The juvenile are the essential future citizen of Bangladesh. There should the grown up in a good environment and society where they will get proper education and other facilities are available. So for the better benefits of the society and Bangladesh the exclusive study should be made. These are: 1. The causes of juvenile delinquency in Bangladesh should be find out for taking necessary measures for the protection of juvenile delinquents.

2. Causes of crime of a society influence upon the mind of the juveniles. In our society the deeply engaged with many type of crime like white color crime. These causes of crime make influences over the juveniles. These shorts of criminal used the lower class juveniles as their tools and they become criminals. On the other hand the juveniles from the upper class society become juvenile delinquents from the family environment. So a wide spread through study is essential on white color crimes in our country and to find out them and their activities and to take necessary action for the sake of the society, country Bangladesh.

REFERENCES

Books: 1.

Sheikh Hafizur Rahman Karzon, Theoretical and Applied Criminology, Palal Prokashoni & Empowerment through Law of the Common People (ECLOP), Ed.1st, June 2008, Dhaka

2.

3.

Prof. N.V. Paranjape, “Criminology and Penology, 11th Ed. Reprinted in 2004.

Shahdeen Malik, “The Children Act, 1974: A Critical Commentary” (Dhaka: Save the Children UK, 2004).

Journals: 1.

Abdul Hakim Sarkar, Juvenile Office in Dhaka City: A Socio-Economic Perspective, Institute for Social Welfare and Research, Dhaka University, 1988.

2.

International Encyclopedia of the Social Science, Vol. A.

3.

M. Enamul Hoque, “Under-Aged Prison Inmates in Bangladesh: A Simple Situation of Youthful Offender in Greater Dhaka” (Dhaka: Save the Children UK, 2008)

4.

Mohammad Afsaruddin, Juvenile Delinquency in Bangladesh, Dhaka: Department of Sociology, 1965.

5

The Daily Sangbad August, 27, 2002.

6

Mizanur Rahman Khan, “Kishar Sanghosodhani Practisthane Ekdin: Amara Ki Aparadhi,” The Weekly Bichitra, 21 year, 26 June, 1992.

Statutes: (1)

Convention on the Right of the Child, 1989

(2)

The Children Act, 1974

(3)

The Children Rules, 1976

(4)

The Code of Criminal Procedure, 1898

(5)

The Penal Code, 1860

(6)

The Penal Code (Amendment) Act

(7)

The Vargancy Act, 1943

(8)

Nari O Shishu Nirzatan Ain 1995.

Table of Cases (1)

Shiplu and another V State, 49 (1997) DLR, 53

(2)

State V Roushan Mondal, 59 (2007) DLR, 72

(3)

Mona @ Zillur Rahman V. State, 23 (2003), BLC. AD 187

(4)

Bimal Das V State, 46 (1994) DLR, 460

(5)

Bablu V. State, 1(1981) BLD, 454

(6)

State V. Deputy Commissioner, Satkhira, 45 (1993) DLR, 643

(7)

State V Shukur Ali, 9 (2004), BLC, 409

(8)

Bangladesh Legal Aid and Services Trust (BLAST) V. Bangladesh Case, 7 (2002) BLC, 85.

Web Pages UNICEFInterParliamentaryUnionGuide107.pdf,

2007,

[http://www.juvenilejusticepanel.org/resources/?act=res&cat=&nod=_root_&=id=UNICEF Inter ParliamentaryUnionGuide107&start=11, last visited 12 Dec 2010]