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

perspective
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 Childrens 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 Rules) 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 maturity5. 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 childs 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 Childrens Right to express their views in the proceeding, legal provision permit
the court to dispense with childrens 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.