Bangladesh

Rights of the Child come into contact with Law and state of Juvenile Justice system- Bangladesh perspective

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by Shamim Ara

Abstract- The object of this writing is to focus on existing suppression faced by the Children in conflict with Law and the maladministration of Juvenile Justice System in Bangladesh. The paper also stresses the need for full implementation of the Convention on the Rights of the Child, 1989. A comprehensive reform of the existing Juvenile Justice System is required to ensure the protection of children in conflict with the law. Attempt has been made to find the loopholes of the existing system in order to reach an amicable solution.

  1. Introduction:

Deep scars crisscross the body of a seven-year-old boy at the centre of a criminal case that investigators say exposes “pure evil.” [DHAKA, 4 May 2011].1 Bangladesh is one of the earliest signatories to UNCRC and obligated to protect Children’s Rights under national law and under several international human rights instruments. Article 28(4) of the constitution of Bangladesh guarantees judicially enforceable fundamental rights to all citizens including children and ensures affirmative action for children. In addition, the constitution provides for the fundamental principles of State Policy which act as guiding principles for formulating national policies and laws relating to human rights of citizens. Despite regularly reiterating its commitment to the promotion and protection of child rights, children coming into conflict with the law are an issue of serious concern in Bangladesh. The Committee on the Rights of the Child in a concluding observation expressed its concern on “the limited progress achieved in establishing a functioning juvenile justice system throughout the country.”2

In recent years there has been significant impetus for juvenile justice reform. The government appointed a high-level Juvenile Justice Task Force, and identified priority areas for action. A new national social policy on Models of Care and Protection for Children in Contact with the Law has been adopted to address both children in conflict with the law and children in need of their protection. The Government also has formulated The National Plan of Actions for Children (NPA) as a follow-up to the CRC, of which the current NPA covers the period 2005-2010. More committed and responsive policy environment has begun developing recently for children, with several national policies acknowledging child rights as an integral part of the national development goal. Despite those, children experience arbitrary arrest, torture and ill-treatment while in custody. Still often, they are deprived of liberty for minor offences, non-violent offences or even without committing any offences. Separate systems to deal with the special needs of children in conflict with the law are lacking. Therefore, still much remain to be done for the implementation of a fully comprehensive separate system for children in conflict with law.

2.Children in Conflict with Law and Children in need of Protection:

2.1. Juvenile Offender:

The definitions of ‘youthful offender’ can be found in section 2(n) of the Children Act, 1974. A ‘child’ is a person under the age of 16 years and a ‘youthful offender’ means any child who has been found to have committed an offence. The term ‘in conflict with the law’ is generally used in a broader sense to include anyone coming into contact with someone in authority upon being accused of breaking the law.

2.2. Juvenile justice:

The term “juvenile justice” refers to legislation, norms and standards, procedures, mechanisms and provision, institutions and bodies specifically applicable to juvenile offenders. In wide sense juvenile justice is understood not only just to cover the treatment of children in conflict with the law but also includes efforts to address the root causes of offending behavior and implement measures to prevent such behavior. There are three major strands of work under this broad definition, all of which are features of 'restorative justice':

• Prevention - in order to ensure that boys and girls do not come into conflict with the law in the first place and therefore do not come into contact with the formal criminal justice system,

• Diversion - to ensure that at all possible stages girls and boys are diverted away from the formal justice system and into community-based and restorative processes that address effectively the causes of their behaviors and identify strategies at the community level to effectively prevent re-offending; and • Protection - of children who are already in conflict with the law from human rights violations, focusing on their development in order to deter them from re-offending and to promote their rehabilitation and smooth their reintegration back into society.3

Legal Framework:

Juvenile Justice is one of the areas where lots of work needs to be done, as there are plenty of occurrences related to maladministration of Juvenile Justice. There is legal phenomenon both in national and international levels. According to the Article 40.1 of the United Nations Convention on the Rights of the Child, “States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society". Articles 37 and 40 of the Convention on the Rights of the Child (1989), children in conflict with the law have the right to treatment that promotes their sense of dignity and worth takes into account their age and aims at their reintegration into society. Also placing children in conflict with the law in a closed facility should be a measure of last resort, to be avoided whenever possible. The convention prohibits the imposition of the death penalty and sentences of life imprisonment for offences committed by persons under the age of 18.

In Bangladesh the justice system 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.Even it has constitutional recognition as observed by the High court Division presided by Mr. Justice A.K.M. Fazlur Rahman in The State Vs. Md. Roushan Mondal @ Hashem 4 “We believe that the Children Act 1974 was promulgated as a direct manifestation of Article 28(4) of the Constitution, which has been placed in the Part III – under the title “Fundamental Rights”, and at the same time in response to, and with a view to fulfilling the mandate of, the relevant international instruments of the UN mentioned above. Article 28(4) of the Constitution provides as follows:

“Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens.”

Other Laws are - The Penal Code of 1860, the Code of Criminal Procedure 1898, The Suppression of Violence against Women and Children Act, 2000 and Nari O Shishu Nirjaton Domon Ain-2003 also contain provisions regarding children in conflict with law. The Children Act includes some important procedural protection and placed primacy on formal court structures, legalistic responses and institution-based rehabilitation and it does not provide a particularly sound basis for the development of a child-centred, rights-based juvenile justice system.

Bangladesh has ratified UNCRC in August 1990, which is complemented by relevant international standards such as the UN Guidelines for the Prevention of Juvenile Delinquency (the ‘Riyadh Guidelines), the UN standard minimum Rules for the Administration of Juvenile Justice (the Beijing Rule’s) and the UN Rules for the Protection of Juveniles Deprived of their liberty. So it is the obligation of the state to give effect to the conventions by means of laws, policies and practices designed to further its goals. But most of the existing legislations do not comply with the principles of International Instrument concerning Child Rights. Therefore, children in need of protection are often treated the same as children in conflict with law.

3.Observations:

Age of Criminal Responsibility: “The age of Criminal responsibility shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity”5. In 2004, Bangladesh raised the minimum age of criminal responsibility from 7 to 9 years. Criminal liability of children between the ages of 9 and 12 is subject to judicial assessment of their capacity to understand the nature and consequences of their action.6 The Committee on the Rights of the Child has repeatedly noted that “the minimum age of criminal responsibility is too low in Bangladesh, that children between 16 and 18 are considered as adults under section 2 of the Children Act, and that children under 18 are in no cases, not separated from adult while in detention and kept in very poor condition and without access to basic services. The Committee also concluded that the minimum age of criminal responsibility at below 12 years is not internationally acceptable and has recommended increasing it in its General Comment.

Absence of Proper Mechanism to determine the age:

In a country where birth registration is some 10 percent in Bangladesh, it is likely that children in conflict with law are often deprived of age-appropriate protections. Police reportedly either fail to record the child’s age or deliberately note an increase age to avoid having to comply with procedural protection. As a result juvenile justice is hampered.

Arrest of Children:

Article 37 of UNCRC provides that “No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment shall be used only as a measure of last resort and for the shortest appropriate period of time. Children must not be subject to torture or other cruel, inhuman or degrading treatment or punishment, and every child deprived of liberty must be treated with humanity and in a manner which takes into account the needs of persons of his or her age. Children deprived of liberty must be separated from adults”. There are three specialized institutions for the detention of child offenders which have been renamed as the Child Development Centers. The two centres for boys are located in Tongi and Jessore and girls centre is in Konabari. Although the objectives of these Centres are to promote the rehabilitation and reintegration of children, in reality they lack necessary staff and resources to effectively promote rehabilitation and reintegration. As a result, many children however are sent to ordinary prisons where they are imprisoned with adults. Lack of protection put them at serious risk of torture, ill-treatment and other forms of abuse in jails. As a result a news was published in The daily Star reporting titled “8 years old sued, sent to jail for drug trade” on 24 April 2008. According to International Standards, deprivation of liberty affects not only children who have been sentenced after being convicted but also children in need of protection.

According to Save the Children UK, from January to October 2008, there were 939 new admissions in 57 jails, and some 1098 children were released from the jails in the same period. Of these children, 82 children (from January to May 2008) were arrested under the special power Act, Despite a police headquarters directive of 7August 2006, pursuant to the National Task Force decision that no children would be arrested under the Special Powers Act.7

Bail and Pre-trial detention of children:

Under section 44 of the Children Act, a police officer has the authority to grant a bail to a child even if the arrest is made under a non-bailable offence. 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. Section 49 of the Act empowers court to grant a bail and release an arrested child or order him/her to be detained in a remand home or place of safety. Since there is no special considerations regarding bail for children and the requirements for granting bail are same as for the adults, most of the time parents fail to comply with it.8 Therefore, children placed in the detention without any record of their arrest. 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.

Juvenile Court:

At present though there are three specialized juvenile courts established in the country and the creation of another four of these is being considered, most of the children are dealt with through the regular criminal courts, where they are often tried jointly with adults and have no legal representation. Existing legislation do not explicitly recognizes the Children’s Right to express their views in the proceeding, legal provision permit the court to dispense with children’s attendance violate the right of participation and due process. To note that the existing juvenile courts have limited jurisdiction and cannot hear cases of children who have committed serious offences. Though the justice system lacks the infrastructure to administer juvenile justice properly, meanwhile there have been significant efforts by the courts to hold proceeding in chamber and to encourage the separation of children from adults as they are brought to court.9

Sentencing:

The CRC states that neither capital punishment nor life imprisonment without the possibility of release shall be imposed on children under the age of 18. Section 15 of the Children Act provided the procedure for sentencing and there is direction through which the court may direct the probation officer to prepare a social inquiry report, but in reality there is rare application of these provisions.10

Children between the ages of 16 and 18 are not covered by the Act, and are therefore subject to adult sentences, which is inconsistent with Article 37(a) of the CRC. Children may be subject to adult terms of detention if they are found to be “unruly or depraved.” Under special provision, children as young as nine in Bangladesh are subject to life imprisonment. The Children Act provides limited scope for non-custodial dispositions. Strict regulation should be in place to ensure that children are not subject to corporal punishment, solitary confinement or other cruel and inhuman punishments. However, the proviso to section 51 allows the Court to award a sentence of imprisonment and for the child to be kept in a place other than a certified institute if the Court is satisfied that the child is of so unruly or of so depraved character that he cannot be committed to a certified institute. Thus sentence under section 52 is the norm and one under section 51 would be an exception when certain conditions apply.

Alternative Solution and Diversion:

Article-40 of CRC provides “State shall seek to promote the establishment of measures for dealing with children in conflict with the law without restoring to judicial proceeding, provided that human rights and legal safeguards are fully respected. The same pronouncement exists in the Beijing Rules as “The police, the prosecution or other agencies dealing with juvenile areas shall be empowered to dispose of such cases, at their discretion without recourse to formal hearings. Any diversion involving referral to appropriate community or other services shall require the consent of the juvenile or her/his parents or guardians provided that such decision to refer a case shall be subject to review by a competent authority, upon application. However the principle of “Diversion” which is the corner stone of the international standards on juvenile justice is not yet recognized by Bengali Legislation and legal practice. It is considered as alternative to formal adjudication which may involve a restorative justice component, i.e., compatible with the rights of the child.

In this regard it was observed in the Md. Roushan Mondalcase,11 cited above, that ‘.....juveniles charged with offences falling under special law will have to be dealt with by the Juvenile Court in accordance with provisions of the Children Act, which, in our view, is of universal application and approach, irrespective of the offence alleged....’

Recommendations:

Probably this is a crying urgency to introduce innovative, elaborate and effective measures to achieve a safer environment for the children to ensure juvenile justice by uprooting conflict with law. Therefore following measures can be taken into consideration:

• It is the duty of this Court and all other Courts as well as other state departments, functionaries and agencies dealing with children, to keep in mind that the best interest the child (accused or otherwise) must be considered first and foremost in dealing with all aspects concerning that child.

• Ensure comprehensive reform of the existing juvenile justice system.

• Raise the minimum age of criminal responsibility to an internationally acceptable level.

• Ensure that deprivation of liberty is used only as a measure of last resort and for the shortest possible time with basic services.

• Ensure separation of children from adults in all places of detention.

• Efforts shall be made to provide juveniles, at all stage of proceedings with necessary assistance in order to facilitate the rehabilitative process. Volunteers, local organizations and other community resources shall be called upon to contribute effectively to the rehabilitation of the juvenile in a community setting and as far as possible, within the family unit.

• Review and if necessary amend all judicial, legal and protection procedure to ensure that children who are alleged to have broken the law are fully guaranteed the rights to a fair trial and to all legal assistance.

• Bail should be considered as a matter of course and detention/confinement should ensue only as the exception in unavoidable scenarios.

• Impose strict prohibition on sentencing death penalty, life imprisonment and corporal punishment on person under the age of 18.

• Supervision and restorative justice can be put rather than sanctions involving imprisonment.

• Provided more comprehensive formal training for judicial professions including the persons employed in rehabilitation and reintegration.

• Due consideration must be given to the fact that children come into conflict with the law due to failure of their parents/guardians or the State to provide adequate facilities for their proper upbringing. If the parents or guardians lead the child astray, then it is they who are liable and not the child.

• Court has to play an active role in ensuring that the rights of the children in conflict with the law.

Conclusions:

Finally we can conclude that there should be a child oriented Juvenile Justice System in Bangladesh, which will ensure the well-being of children in conflict with law. Most of the existing legislation does not comply with the principles of international instrument concerning child rights. The Children Act, 1974 is the principle legal instrument governing the juvenile justice administration in Bangladesh, includes some important procedural protections, it does not provide particularly comprehensive juvenile justice system. Modern concept of juvenile justice system, such as diversion, mediation, restorative justice, community- based rehabilitation is lacking. There is no clear concept regarding the distinction between children in conflict with the law and children in need of protection in the legislation. There exists lack of compatibility of legislation and policies with international juvenile justice standards. The age of criminal responsibility is also too low, that children between age of 16 and 18 are considered as adults, and children under the age of 18 are in no case separated from adults. Children are often tried in the ordinary criminal courts and are co-accused with the adults. Arrest, detention and sentencing are often arbitrary and at times even illegal. However, judicial activism is strong and Courts have played active role for ensuring the rights of the children in conflict with the law. Despite government has taken various initiatives in association with UNICEF and other agencies, donors, national and international NGOs, the actual improvement of the juvenile justice system depends on effective implementation of the international standards for juvenile justice and judicial decisions. More than thirty-three years have elapsed since the enactment of the Children Act 1974, yet we find many persons concerned with and responsible for the operation of the law to be oblivious of the provisions of the law thus enacted. It cannot be overemphasized that it is our bounden duty and in our greater interest to look after the well-being of our children for our prosperous and peaceful future. We are duty bound to enforce the law and to administer the rights ensured by legislation and to grant benefits accruing there from, whenever and wherever it is due. Justice is to be ensured by due process of law. Children too have a right to be dealt with in accordance with law, i.e. the provisions of the Act, and thereby in conformity with the mandate of the Constitution. The law was purposefully enacted for the benefit of that class, giving them specific rights, overriding the non-discrimination clause in the Constitution. We should not allow such rights to be frittered away.

Bibliography:

  1. Rohfritsch, and N.K. Sattar, A Critical Review of Judicial Institutions in Relation to the Rights of the Child, Child Study Series, Rädda Barnen, 1995.)

  2. Protection Fact Sheet: Children in Conflict with the Law, July 2008, Save the Children UK, Bangladesh Programme.

  3. Children Act, 1974 4. Children Rules-1976.

  4. Third and Fourth periodic report of The Government of Bangladesh under the Convention on the Rights of the Child, August 2007.

  5. JUVENILE JUSTICE IN SOUTH ASIA: IMPROVING PROTECTION FOR CHILDREN IN CONFLICT WITH THE LAW 7. Unicef(2006) Juvenile Justice in South Asia: Improving Protection for Children in Conflict with Law .

  6. Unicef (2007) Improving the Protection of Children in Conflict with Law in South Asia-Regional Parliamentary Guide.

  7. State of Juvenile Justice and Violence against Children in Bangladesh.

  8. Rahman, Mizanur, Tracing the Missing Cord: A study on the Children Act, 1974, Save the Children UK, 2003 11. My Childhood in Chains: Juvenile Justice and Violence against Children in Bangladesh, Save the Children UK, 2004

References-

  1. http://thecnnfreedomproject.blogs.cnn.com/2011/05/04/gang-profits-from-maimed-child-beggars/

  2. UN Committee on the Rights of the Child, Concluding observations: Bangladesh, CRC/C/15/Add.221, 27 Oct 2003.

  3. http://www.juvenilejusticepanel.org/admin/htvleditor.php.

  4. [BCR 2006 HCD 275] 5. "A Critical Review of Judicial Institutions in Relation to the Rights of the Child", A. Rohfritsch with N.K. Sattar, Child Study Series, Rädda Barnen, 1995.)

  5. Penal Code (Amendment) Act, 2004.

  6. Khair, Sumaiya, "Street Children in Conflict with the Law. The Bangladesh Experience", Asia-Pacific Journal on Human Rights and Law, Vol.2., No. 1, 2001, Kluwer Law International, pp-55-76, 56.

  7. Nacela K. Sattar and Gopalan Balagopal, Children Involved with the System of Juvenile Justice: A Forgotten Agenda in Bangladesh 9. State vs. Metropolitan Police Commissioner, Khulna and others.

  8. State vs. Metropolitan Police Commissioner, Khulna and others, Suo Motu Rule No 4 of 2008, judgment dated 22 July 2008 (unreported). The Court was presided over by Justice Md. Imman Ali.

  9. Nacela Sattar and Gopalan Balagopal, Bringing Juvenile Justice into Focus, UNICEF Dhaka.

Ms. Shamim Ara Assistant Professor & Chairperson Department of law Dhaka International University E-mail: shamimshume2008@yahoo.com

Asian Human Rights Commission
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984