Graduate School of Development Studies
Diversion and Alternative Sanctions
in the Juvenile Justice System in Bangladesh:
a Child Rights Perspective
A Research Paper presented by:
Khandaker Farzana Rahman
(Bangladesh)
in partial fulfilment of the requirements for obtaining the degree of
MASTERS OF ARTS IN DEVELOPMENT STUDIES
Specialization:
Human Rights, Development and Social Justice
(HDS)
Members of the examining committee:
Professor Karin Arts (Supervisor)
Dr. Jeff Handmaker (Second Reader)
The Hague, The Netherlands
November, 2011
Disclaimer:
This document represents part of the author’s study programme while at the
Institute of Social Studies. The views stated therein are those of the author and
not necessarily those of the Institute.
Inquiries:
Postal address:
Institute of Social Studies
P.O. Box 29776
2502 LT The Hague
The Netherlands
Location:
Kortenaerkade 12
2518 AX The Hague
The Netherlands
Telephone:
+31 70 426 0460
Fax: +31 70 426 0799
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Dedication
I hereby dedicate my MA Research Paper to my parents Khandaker Habibur
Rahman and Lutfun Nahar for their unquantifiable love and moral support
throughout my life.
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Acknowledgment
I would like to express my sincere gratitude to my supervisor Professor Karin
Arts for her guidance and critical inputs and insights in different stages of the
research work. My heartiest thanks go to my second reader Dr. Jeff
Handmaker for his feedback and comments to develop my paper. I also
acknowledge Dr. John Cameron’s directions and encouragement to my work.
This paper would not have been possible without the responses from the
key informants. I am highly indebted to the children in conflict with the law
who took part very actively in the focus group discussion and the key
respondents for sharing their idea and expertise with me.
I would also like to thank Ms Rumana Islam, Assistant Professor of Law,
University of Dhaka and Khandaker Kohinoor Akhter, Lecturer of Law,
Northern University Bangladesh for their valuable suggestions for this paper. I
gratefully acknowledge the contribution from my colleagues, Rajesh Kumar
Jena and Godana Denge during RP design and draft seminar.
And lastly I would also take the opportunity to convey my grateful
acknowledgement to my husband Md. Mushfiqul Islam to understand me
always, inspire to pursue this study and to comment on an earlier draft.
Khandaker Farzana Rahman
16 November, 2011
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Contents
Dedication
Acknowledgment
List of Tables
List of Figures
List of Maps
List of Acronyms
Abstract
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CHAPTER 1: INTRODUCTION
1.0 General Introduction
1.1 Problem statement
1.2 Background and context of the research
1.3 Justifications
1.4 Objectives of the study
1.4.1 Main research question
1.4.2 Sub research questions
1.5 Methodology
1.6 Limitations of the research:
1.7 Ethical Considerations
1.8 Organization of the paper
CHAPTER 2: CONCEPTUAL AND LEGAL FRAMEWORKS
2.0 Introduction
2.1. Conceptual framework
2.1.1 Juvenile justice
2.1.2 Child rights-based juvenile justice system
2.1.3 Retributive vs. restorative justice
2.1.4 Alternatives to deprivation of liberty and juvenile diversion
2.1.5 Rehabilitation
2.2 International legal framework
2.2.1 Definition of ‘child’
2.2.2 Arrest procedures and detention
2.2.3 Specialized institutes for children in conflict with the law
2.2.4 Sentencing options
2.2.5 Reintegration and rehabilitation policy
2.3 Summary and concluding remarks
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CHAPTER 3: DOMESTIC STANDARD ON (FORMAL)
JUVENILE JUSTICE IN BANGLADESH: LAW AND PRACTICE 23
3.1 Background of the juvenile justice system in Bangladesh
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3.2 The juvenile justice in Bangladesh: General provisions and their
practice
3.2.1 Arrest and arrest procedure
3.2.2 Provisions for bail and detention
3.2.4 Provisions of specialised institutes/juvenile courts and trial
proceedings
3.2.5 Sentencing option for juvenile offenders
3.2.6 Certified institutes for the juvenile offenders
3.3 Social rehabilitation of children in conflict with the law: Current
practice and experience
3.4 Summary
CHAPTER 4: DIVERSION AND ALTERNATIVE SANCTIONS
IN THE (INFORMAL) JUVENILE JUSTICE SYSTEM OF
BANGLADESH
4.1 Background
4.2 Informal mechanisms within local government for the children in
conflict with the law
4.2.1 Village Courts
4.2.2 Dispute Conciliation Board
4.2.3 Shalish or Mediation
4.3 Implications of informal mechanisms in the juvenile justice system in
Bangladesh
4.3.1 Child development & psychology
4.3.2 Societal collectiveness
4.3.3 Cost effectiveness
4.3.4 Community involvement and child participation
4.3.5 Preventing crime and promoting social security
4.3.6 Ensuring better parental care
4.4 Progressions and achievements
4.5 Levels of diversions: A potential framework in juvenile justice in
Bangladesh
4.6 Obstacles and solutions
4.6 Summary
CHAPTER 5: CONCLUSION AND RECOMMENDATIONS
5.1 Conclusion
5.2 Suggestions
5.2.1 Legislative reforms
5.2.2 Executive/administrative interventions
5.2.3 Coordination between actors to initiate non-Custodial
sanctions or alternatives to deprivation of liberty
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5.2.4
Establishment of an office of child ombudsman/child
commissioner
5.2.5 Formation of juvenile police force
5.2.6 Developing education and training program
BIBLOGRAPHY
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APPENDIXES
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Appendix 1: Plan of activities
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Appendix 2: The Children Act, 1974 (ACT NO. XXXIX of 1974)(The provisions
related with youthful offender)
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Appendix 3: The Village Court Act 2004 and The Disputes Conciliation (Municipal
Areas) Board Act 2004: Schedule 1
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Appendix 4: Questionnaire for semi structured interviews with the key informants
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Appendix 5: Questionnaire for focus group discussion with the children in conflict with the
law
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Appendix 6: Name and designation of the key informants
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Appendix 7: Summary report on the semi-structured interviews with the key informants 66
Appendix 8: Summary report of focus group discussion with the children in conflict with the
law (4 September, 2011)
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Appendix 9: Different provisions of international instruments (UNCRC and other soft
instruments) related with juvenile justice
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Appendix 10: Weekly diet menu for inmates of correctional institutes
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List of Tables
Table: Inmates remanded, discharged, on probation from 1978-June 2002
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List of Figures
Figure 1: Three pillar model of a child rights-based approach to
development(CRBA)
Figure 2: Child rights-based juvenile justice system
Figure 3: A Table Leg Test to introduce child rights based approach
Figure 4: Stakeholders involvement and common ground in retributive
and restorative justice process
Figure 5: Obligation of Bangladesh under international and national
legislations
Figure 6: Police's action against a child in Dhaka
Figure 7: Children treated with adults in police unit in Bangladesh
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List of Maps
Map 1: CDCs identified in map of Bangladesh
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2
List of Acronyms
ADR
BSAF
CAT
CDC
CRBA
FGC
FGD
HCD
HRW
I/NGO
ICCPR
JDL
NCP
NHRC
SC
UN
UNICEF
USA
VOM
Alternative Dispute Resolution
Bangladesh Sishu Odhikar Forum (Bangladesh Child Rights
Forum)
The United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
Child Development Centre
Child Rights Based Approach
Family Group Conference
Focus Group Discussion
High Court Division
Human Rights Watch
International/Non-governmental Organisation
International Covenant on Civil and Political Rights
UN Rules for the Protection of the Juveniles Deprived of their
Liberty 1990
National Child Policy
National Human Rights Commission
Save the Children
United Nations
United Nations Children’s Fund
United States of America
Victim Offender Mediation
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Abstract
This paper analyzes the need to develop alternative sanctions and diversionary
programs in the juvenile justice system of Bangladesh.
The analysis focuses on a child rights-based juvenile justice system, framed
on the basic principles of UN Convention on the Rights of Child 1989. As a
state party to the UNCRC, Bangladesh is obliged to comply with its provisions.
Non-judicial interventions, such as alternative sanctions and juvenile
diversions, are very much in line with the UNCRC approach of juvenile justice,
but still hardly applied in Bangladesh.
The study presents relevant primary and secondary data to examine the
present law and practice relevant to a child in conflict with the law in
Bangladesh. It investigates the existing informal mechanism for handling
criminal matters outside the criminal justice system. Since Bangladesh
underscores on the overuse of imprisonment as means of correction of
children, the practice in the ground is not very compatible with international
law. Children encounter ill-treatment during arrest, even in police custody and
they are devoid of basic opportunities of lives in child correction centre.
Lastly, recommendations have been made in this study to effectively introduce
different forms of alternative responses and diversionary programs in the
juvenile justice system of Bangladesh to make the juvenile justice system more
rights-based.
Relevance to Development Studies
Most children who come into conflict with the law in Bangladesh come from
poor families. They commit crime for various reasons, including: poverty,
breakdown of the family, lack of parental care, negative peer associations or
homelessness. They need and are entitled to special care and guidance. This
research centers on the introduction of non-custodial options in Bangladesh, a
core element of a child rights based juvenile justice system.
In Bangladesh, children constitute a major percentage (44%)1 of
population. The national development of Bangladesh thus largely depends on
the development of its children. The development of a child rights-based
juvenile justice system needs to be promoted in Bangladesh in order to ensure
child welfare. Therefore, the paper is highly relevant to development studies.
Keywords
Juvenile justice, children in conflict with the law, juvenile offender, child rights,
child rights-based approach, rehabilitation, alternative sanctions, diversion.
Bangladesh has a population of 140 million; 63 million or 44 percent of the total population
are children. see details at <http://www.irinnews.org/report.aspx?reportid=87306>
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CHAPTER 1: INTRODUCTION
1.0 General Introduction
The development of juvenile justice is built on the recognition that many
juveniles who come into conflict with the law are victims of social hardship,
violence and deprivation and that they often do not understand the
consequences of the act they committed. Due to the multi-faceted nature of
needs, they require and are entitled to special care and protection. In this
context, the UN Convention on the Rights of the Child of 1989 and other
relevant international and national standards for dealing with juvenile offenders
provide several provisions to protect their rights.
The principles of the UNCRC, that is non-discrimination, participation
and best interest together, provide the common framework for a child rights
perspective to juvenile justice. The key attention of such approach is to take
into account the individual need of each child and bring rights-based
interventions to promoting their survival and development. According to
Wernham (2004:19), “in child-rights based juvenile justice, this is particularly
important to take into account the wider spectrum of rights of the children
coming in conflict with the law which are essential to programs on prevention,
separation of criminal justice system and social welfare system, diversions and
alternative sanctions”. Thus the child rights perspective sees each child’s needs
and choices equally and supports the child to demand rights so that his/her
rights will be met through adequate interventions.
As a state party to the Convention on the Rights of the Child(1989),
United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment(1984) and International Covenant on Civil and Political
Rights (ICCPR), Bangladesh is under a legal and moral obligation to protect
the civil, economic, social and cultural rights of children and to prohibit
inhuman and degrading punishment imposed on them. Bangladesh, likewise,
recognized the special needs of children in conflict with the law, even before
CRC came into force, by the Children Act 1974, complemented by the
Children rules 1976. The Children Act 1974 covers a wide range of areas like a
special judicial mechanism (sections 3, 4 and 5), prohibition of joint trial with
adults (section 6), detention of a child in a safe place (section 55), and
restrictions on punishment of children (section 51) for the protection of
juvenile offenders. The two main policy-making bodies in Bangladesh are the
Ministry of Women and Children Affairs, created in 1994, and the National
Council on Children, created in 1995. They are responsible for overseeing and
enforcing children's rights and protection laws. At present, there are three
specialized certified institutes Child Development Centre (CDC) in
Bangladesh. Among them two centres are for boys, located in Tongi and
Jessore, and the girls’ centre in Konabari (map 1)
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Map 1: CDCs identified in map of Bangladesh
Map source:http://www.mapsofworld.com/bangladesh/bangladesh-political-map.html
1.1 Problem statement
Protecting the human rights of juvenile offenders, including rehabilitating them
in the society, is one of the biggest challenges to securing a child-rights based
justice system in Bangladesh. Lack of appropriate consideration of alternative
sanctions and diversion from formal legal procedures is one of the primary
understandings behind the failure of proper rehabilitation for the
children(Ahmed and Islam, 2010:279).
Coming into conflict with the law in the first place and subsequently
coming into contact with the formal criminal justice system is generally
acknowledged to be detrimental to children’s full or optimum development
(physical, social, emotional, cognitive and spiritual) (UNICEF, 2009:2). Direct
contact with law enforcing agencies in Bangladesh often brings violence, abuse
and exploitation of the children in conflict with law. The police, with whom a
child offender has contact first, often is not very sensitive in dealing with a
child delinquent. Sometimes the police is negligent in documenting children’s
cases in order to avoid the formalities responsible for a child’s trial (Odhikar 2,
2000:14). Thus it is not uncommon to find child offenders treated with adults
by the ordinary courts without special attention and guidance (Ali, 2010:5)
After the child is tried by the court and found guilty, (s)he is left with the
option of full confinement in a correction centre, or is sometimes placed on
probation, depending on the crime committed. Most of the research and
Odhikar (meaning ‘rights’) is a Bangladeshi NGO aiming to create a wider
monitoring and awareness raising system on the abuse of civil and political rights. see
details at < http://www.odhikar.org/about.html>
2
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writings on juvenile justice reviewed for the purposes of this study found that
there are no fully comprehensive rehabilitation policies in the justice system of
Bangladesh. The child development centres, sometimes called as correction
centres, lack the necessary responses and basic facilities for correctional
activities for rehabilitating them in the society. The Third and Fourth periodic
report submitted by Bangladesh to the CRC Committee also admitted that the
centres require better logistics and that resources are not adequate. “There are
shortages of training facilities for children, and the general physical conditions
and overall atmosphere are not up to the mark” (CRC Committee, 2008:31).
In a study, UNICEF (2006) revealed that in South Asia, especially in
Bangladesh, implementation of special juvenile protection has been far from
splendid. In general, insufficient emphasis has been placed on diversions, both
in legislation and in practice, on introducing alternatives to the formal justice
system, or on changing the fundamentally custodial nature of the entire
juvenile justice system. As a result “most children who come into conflict with
the law end up deprived of their liberty either in police lock-ups, prisons,
children’s rehabilitation centres or homes without the touch of family” (ibid).
The Bangladeshi government has not yet adopted a family or communitybased rehabilitation policy which recognizes that different social units like
family or community are the first line of response for dealing with children in
conflict with the law. Thus these children are mostly tried and processed by the
retributive criminal justice system which does not offer community or family
supervision.
1.2 Background and context of the research
The substantive and procedural criminal justice system in Bangladesh is a result
of a legacy left behind in 1947 by the British colonial government. In 1971
Bangladesh seceded from Pakistan and the laws existing in Pakistan became
part of the legal system of Bangladesh after its independence. The basic
relevant legislations are the Penal Code, 1860 enacted as the Indian Penal
Code; the Evidence Act 1872 and the Code of Criminal Procedure 1898. The
Penal Code (section 53) provides for different categories of punishment of
offenders. These are death, life imprisonment, rigorous (with hard labour) or
simple confinement, forfeiture of property, and fines. As an alternative to
imprisonment, a court may issue a probation order in case of a first time
offender under the Probation of Offenders Act 1964 (section 5) if the person
is convicted of an offence punishable with imprisonment for not more than
two years.
The juvenile justice system of Bangladesh is part of a traditional criminal
justice system which consists of regulations and procedures to deal with a child
in conflict with the law. Juveniles who are guilty upon conviction are mostly
sentenced to detention. Juvenile offenders may be sentenced to detention in
reform schools for a period of three to ten years (section 52, the Children Act)
according to gravity of the offences they commit. Only probation is granted as
an alternative to detention for child offenders, with certain restrictions under
the juvenile law of Bangladesh. Other alternatives such as community service
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or care, guidance and diversion or family conferencing are not recognized in
the law of Bangladesh.
Additionally Bangladesh has an age-old background of informal
mechanisms of conflict resolution on the local government level. In
Bangladesh where traditional values, family ties and social ethics form the crux
of the society’s behaviour, the traditional system of resolving criminal disputes
stands virtually extinct and has been replaced by police cases, legal procedures
and other methods (Study Circle Bangladesh, 2003:2). Though child rights can
be protected though these informal forums in village and municipal level as
well, most child delinquency cases are heard and tried by a criminal court.
However, the present democratic government is committed to creating a
child-friendly environment in the country through providing for the human
rights of children and ensuring the safety of children from all sorts of
exploitation and deprivation in line with the UN Convention on the Rights of
the Child (The Daily Star, 12 October, 2011). In consequence of this, on 14
February 2011 the Cabinet of Ministers adopted the ‘National Child Policy’
with a view to re-emphasizing the rights of the child guaranteed nationally and
internationally. This new policy draws special attention to children in conflict
with the law, and provides that the government shall protect and assist such
children during and after the trial procedure. The new policy also affirms that
the differences in domestic law with regard to juvenile justice would be
amended in conformity with the new child policy and in compliance with
UNCRC (Ministry of Women and Child Affairs, 2011). In this context, this
research paper works to introduce different alternative sanctions and
diversionary methods by amending the present children’s law and policy of
Bangladesh so as to comply with the international legal framework and make
the juvenile justice system more child rights-focused.
1.3 Justifications
Most of the literature that the author reviewed depicts the overall
ineffectiveness of the present juvenile justice framework in Bangladesh. There
has been an outcry on the need to bring the present system in compliance with
international standards by international development organizations and the key
local stakeholders dealing with juvenile justice in Bangladesh. The National
Child Policy was consequently adopted. This climate offers opportunities for
juvenile justice reform and makes my study relevant to future improvements of
the juvenile justice system in Bangladesh.
In this connection this paper identifies potential reforms to make the
juvenile justice system more rights-focused, especially from the aspects of
alternatives to detention and diversion. It explores whether directing children
away from judicial proceedings and towards community solutions would add
value and assist the rights that children in conflict with the law in Bangladesh.
Non-governmental agencies hence can use this study as an advocacy tool to
step forward for a child friendly juvenile justice system.
As a member lawyer of the Dhaka Bar Council and a novice human rights
activist, I am professionally involved with juvenile delinquency and juvenile
justice reform in Bangladesh. This work is highly significant for me as well
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since this academic research expands my legal thinking and understanding and
develops practical research skills.
1.4 Objectives of the study
Against this background the present study seeks to explain the reasons and
implications for the urgent need of introducing diversions and non-custodial
sanctions in the prevailing laws and legal practice of Bangladesh so as to
actively promote the rehabilitation of the offenders in the society in order to
provide them true dignity and justice.
1.4.1 Main research question
How would diversions and alternative sanctions contribute to making the
juvenile justice system in Bangladesh more child rights-focused?
1.4.2 Sub research questions
1. What do the major international instruments relevant to juvenile justice
prescribe alternatives to detention and diversion?
2. How is a child coming in conflict with the law treated in Bangladesh in
law and in fact? Are diversions and alternatives sentencing included in
the process?
3. What is the legal scope for diversion and alternative sanctioning in
Bangladesh?
4. What obstacles for introducing and implementing such reforms are
likely to come up, and how could these be tackled?
1.5 Methodology
This research assesses the possibilities of alternatives and diversions in present
juvenile justice system in Bangladesh by a ‘situation analysis’ method that is the
primary strategy of any rights-based development intervention.
This study basically concentrates on the existing state of the juvenile
justice system in Bangladesh, i.e. how alternatives and diversions could work
within it. In this connection, situation analysis has been used as a basic method
to investigate the practices on the ground. The purpose of such a diagnosis in
this study is to improve understanding of problems and causes for the limited
progress of an effective juvenile justice, to identify effective solutions and to
design interventions that might have greater impact on the children’s lives
(Save the Children, 2002:43).
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Figure 1: Three pillar model of a child rights-based approach to development (CRBA)
Child rights situation analysis
Direct
actions on
gaps and
violation of
rights of the
children
Strengthening
structures
and
mechanism
Strengthening
communities
and civil
societies’
capacity to
support
children
rights
Resources
Source: Save the Children (2002:43)
Situation analysis as a methodological tool has largely leaned on the three
pillar model by Save the Children (figure 1). In this paper it intends to expose
gaps and violations of rights of children in conflict with the law. Then it takes
into account how to strengthen the present structures and mechanisms, e.g.
legislation amendment or introduction of diversionary programs. Lastly the
pillar model looks into how to increase communities’ and civil societies’
capacity to support children’s rights, e.g. coming up with recommendations on
how to rehabilitate the child in society.
The approach adopted to achieve the goals of the research additionally
included the wide use of secondary data. This study is primarily based on a
systematic literature review of the existing materials on juvenile justice both in
the international and national context. However, in order to determine the
practical implications of alternative sanctioning and diversion as an
indispensable element of a child rights-based juvenile justice system in
Bangladesh, a small number of semi-structured interviews has been conducted
as well.
Literature Review
A systematic literature review was conducted first to analyze the existing
academic writings relevant to juvenile justice in Bangladesh. Web-based search
engines such as Google Scholar, Picarta, Worldcat were used for the initial
research. The following combination of keywords was primarily used to
identify literature: ‘diversions and alternatives to juvenile delinquency’,
‘children in conflict with law in Bangladesh’, ‘human rights approach to
juvenile justice’, ‘juvenile justice in Bangladesh’ and so on. In addition to the
electronic resources, specialized electronic library catalogues of e.g. the
Erasmus University Rotterdam and the Peace Palace Library were used for
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identifying further material on the juvenile justice system in Bangladesh.
National laws, policy documents and relevant international instruments were
also examined with a view to determining the state of the domestic system.
Moreover, materials published by the Child Rights Information Network and
UN treaty bodies, such as the Third and Fourth Periodic Report submitted to
CRC Committee and the Committee’s Concluding Observations on those
reports were used. Relevant reports published by INGOs such as Save the
Children (SC) and intergovernmental organizations like United Nations
Children’s Fund (UNICEF) Bangladesh were consulted for information e.g. on
how alternative measures suited to the legal system of Bangladesh could be
promoted in pursuit of a rights-oriented juvenile justice system.
Direct observation
To experience the conditions in a child development centre where children are
remanded or detained, I visited one of the centres. For reasons of easy
accessibility the child development centre situated in Tongi was visited (driving
distance is 18.56 km from Dhaka, the capital of Bangladesh). With the
permission of the Social Services Department, I managed to observe the
development programs and schooling system in person as well as to interview
some children and the duty officer. After I arrived in the development centre, I
found the centre authorities informed about all aspects of my research- the
purpose and the methods, and how the information would be gathered and
used.
Interviews
Interviews commonly allow people to explain a particular situation from their
own perspective. The purpose of conducting interviews in the study is to
better understand the attitude and concerns of the organizations and
individuals in Bangladesh in regard to diversions and alternative modes to
criminal sentences. The selection of people who were interviewed was by way
of purposive sampling technique that helped me to choose a number of key
respondents dealing with the rights of children delinquents.
Semi-structured interviews with open-ended questions were conducted
with key respondents including a District Judge, the Chairman of the Human
Rights Commission, one lawyer, a police officer, a Government official of the
Social Welfare Department, Superintendent of Child Development Centre and
one NGO professional (see appendixes 6 and 7 for all details). In addition, one
Focus Group Discussion (FGD) was conducted, in the child development
centre in Tongi with seven children in conflict with the law. The purpose was
to consider their experiences in police custody and correction centres. The
FGD participants were selected by the Superintendent of the centre since he is
well acquainted with them on the different categories of crimes they
committed so that the researcher could get a detailed and different synopsis of
their experience.
1.6 Limitations of the research:
While numerous general works pertinent to juvenile justice system are
available, little specialized research in regard to diversions and alternative
sentencing has yet been conducted in relation to children in conflict with law in
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Bangladesh. However, there is extensive literature on alternatives to detention
and diversions with regard to many developing countries where different
methods of non-punitive sanctions have been successfully established.
During the fieldwork I observed that there is a lack of recent empirical
data and follow-up procedures in the government office, e.g. on the number of
juveniles who come into conflict with the law in a year, how many delinquents
go back to the society each year, or what they do after completing their
detention in correctional institutes. Thus the dearth of accurate statistics
hinders to determine to what extent the present laws are effectively being
implemented to ensure sustained rehabilitate them in the community.
Another constraint arose due to time limitations. It was not possible for
the researcher to interview every child offender and every judge or every nongovernmental organization who works with juvenile delinquents and visit all
the child correction centres. While the broader context of the study draws
attention to children in conflict with law, it would not address the children who
are in need of specific care such as victims of offences or street children
obviously because of the time limitation. Further, the FGD concentrated only
on the boy offenders due to the easy accessibility of their correction centre and
the need to maintain a manageable scope of the research.
A language barrier, i.e. to translate some legal words into the local
language was one of the challenges I faced in the field. When I conducted the
interviews with the children in conflict with the law in a child development
centre, most of whom came from poor and uneducated families, I had to ask
questions in Bengali mother tongue. Some legal terms were hardly translated,
such as diversion, handcuffs, restorative justice etc. In this case, I re-organised
the questionnaire for the children delinquents and interpreted the required
legal terminologies in the native language. The quotations from the discussion
used in the study were translated, but I maintained the contents of the opinion
of the interviewees to translating them from Bengali.
Besides, I was not permitted to bring a recording device while visiting the
CDC in Tongi. This interfered with the researcher’s full concentration as the
manual notes had to be taken during the FGD.
1.7 Ethical Considerations
The code of ethics in research work plays an important role where respondents
are especially vulnerable. Children in conflict with the law living in a correction
centre are at risk of significant harm. As follows, the researcher at the outset
took into consideration ethical principles that are necessary for conducting a
development research.
I needed more time for obtaining valid consent and building trust amongst
specifically the child offenders. In relation to the discussion with children in
conflict with the law, I needed to pay extra attention to protecting them from
any potential harmful effects of my research since it is my duty to ensure the
physical, social and psychological well-being of those who are responding to
my study. In the discussion, when I asked them to describe how they
committed the crime, one of the respondents became traumatised and started
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crying to remember his bad experience. Then I immediately tried to cope
better with his behavioural impulsivity, became very sympathetic to him and
provided support and comfort by giving hugs so that he and the other boys
could feel free to share their experience.
In dealing with very sensitive issues, like sentencing, detention and police
custody of juvenile delinquents, I was very concerned about obtaining
informed consent and maintaining the confidentiality and anonymity of
interviewees in order to respect the right to privacy of the juvenile offenders as
well as the interviewed individuals from NGOs or government office. In
addition, I agreed to show the informant’s transcripts of the interviews and to
withdraw statements upon request.
1.8 Organization of the paper
The research is directed towards assessing the need for initiating alternatives
and diversion, in line with international law, and proposing several reforms
associated with these methods that would lead to a more rights-oriented justice
framework for the protection of the rights of children in conflict with the law
in Bangladesh. It focuses primarily on the question whether alternative
sanctioning and diversion could become operative means to promote child
development in the juvenile justice system of Bangladesh. The paper has been
coherently organized pursuant to the research objectives and questions. The
research paper contains the following chapters:
a. Introduction of the paper
The first chapter provides the context of the research, its justification and
objectives, the main research questions and the methods employed.
b. Conceptual and Legal framework:
This chapter introduces the conceptual framework of a child rights-based
juvenile justice and its justification under the international legal framework.
Along with a rights-focused system, this section seeks to discover other
theories of justice, and some related concepts such as diversions, rehabilitation
in the research. Regarding the legal framework, this chapter discusses the
relevant provisions of the main human rights instruments dealing with children
in conflict with the law, such as the Convention on Rights of Child, the Riyadh
Rules and the Beijing Rules.
c. The domestic standard of formal juvenile justice in Bangladesh: Law
and practice
This chapter provides an overview of the major provisions of the juvenile
justice system (treatment by the police, rehabilitation conditions) of
Bangladesh. It also identifies the gaps in the existing laws and the current
practice that are pressing problems in the juvenile justice of Bangladesh
d. Alternative sanctions and diversion in the (informal) juvenile justice in
Bangladesh
This chapter examines how a non-repressive attitude such as community
diversions, or a quasi-judicial system could strengthen the rehabilitation of
9
child offenders in Bangladesh. This section begins with the informal
mechanism existing in the ground to resolute conflict and its implication on
juvenile justice. In conclusion it also deals with the potential challenges which
are notable predicaments to initiate alternative sanctions and their solution for
the children in conflict with law in Bangladesh.
e. Conclusion and suggestions
This chapter asserts the most urgent reforms needed for integrating
alternative sanctions and diversion in the practice so that the child delinquents
can be properly rehabilitated in community. The paper sums up by proposing
some urgent recommendations such as legislative reforms, training and
capacity building to make the present juvenile justice more rights focused.
10
CHAPTER 2: CONCEPTUAL AND LEGAL
FRAMEWORKS
2.0 Introduction
Various concepts and theories related to juvenile justice are used in this paper.
A child rights-based juvenile justice system is one of the core elements in the
theoretical analysis presented in this paper. Other theories of justice, such as
retributive and restorative justice, are given attention as well. This chapter also
looks into the relevant provisions of international law dealing with children in
conflict with the law. The national law and practice relevant to child
delinquents will be addressed in the next chapter.
2.1. Conceptual framework
2.1.1 Juvenile justice
Juvenile justice, in a narrow meaning, is the part of criminal justice which
applies to persons who are not old enough to be held liable under state law for
committing any crime (DCI, 2010). In a broader sense, the term “juvenile
justice refers to a set of norms and standards, laws and procedures,
mechanisms and provisions, institutions and bodies specifically applicable to
child offenders” (ibid). In addition, juvenile justice often includes efforts to
address the root causes of offending behaviour and, in its extended meaning,
measures to prevent such behaviour (ibid). Separate legal procedures dealing
with the juvenile offenders take full account of their age, circumstances and
needs whilst the traditional criminal justice fixes attention on the offence and
its punishment. US Justice Stewart in In re Gault(1967) observed:
Juvenile courts functioned as public social agencies striving to find the right
solution to the problem of juvenile delinquency. The object of criminal
courts, in contrast, was conviction and punishment of those who commit
wrongful acts.
The initial idea behind a juvenile justice system is that children in trouble
with the law should be helped rather than punished. Central to the concept of
juvenile justice was the principle of ‘parens patriae’ that means, instead of
lawyers fighting to decide guilt or innocence, the court would act as parent or
guardian interested in helping the child (Roberts, 2000). It is a very common
assumption that children do hardly have the capability to form necessary
criminal intent to commit a crime. Though recently in many states, juvenile is
charged with serious crimes, e.g. robbery, murder or offences related to drugs
(ibid), the necessity to treat them with different and special procedure is not
faded away. The notion that children are completely different human beings
with different sensibilities, requirements and necessities also led to the creation
of a different model for treating them when they come into conflict with
criminal laws (Malik, 2004:25). In Fahima Nasrin’s case(2009), the HCD of
Bangladesh observed:
11
Children who resort to offending do so, not through their own fault but
through their neglect or fault of their parents and their immediate
surroundings as well as the failure of the society to provide their basic needs.
It is our duty that we act with equanimity and apply special mechanism when
dealing with children coming in conflict with the law.
Most societies, to varying degrees and in different ways, have long
accepted that ‘children’ should be dealt with somewhat differently from adults
not exactly within the formal criminal administration when they come in
conflict with the law. The USA is one of the pioneer countries in terms of the
development of a juvenile justice system. During the nineteenth century, the
treatment of juvenile offenders in the United States started to change. In New
York, the Society for the Prevention of Juvenile Delinquency established the
New York House of Refuge in 1825 to house juvenile delinquents and
subsequently in 1899, the first juvenile court in the United States was
established in Cook County, Illinois. (Dialogue on Youth and Justice, 2010:5).
The idea quickly caught on, and today every country has a separate court
system for juvenile delinquents.
2.1.2 Child rights-based juvenile justice system
Recently trends in juvenile justice have tended to shift towards a child-rights
oriented approach. It emphasizes to dealing with a child delinquent in a very
comprehensive manner with a prior attention on the basic principles (nondiscrimination, best interest, and participation) and rights in UNCRC: right to
a fair trial, interventions without judicial proceedings, determination of age,
prevention of offending (Ghimire, 2008:19). The goal of such holistic
approach is to assist the child in accessing to justice and obtaining remedy.
Figure 2: Child rights-based juvenile justice system
Rights oriented juvenile justice system
Strengthen
accountability
of duty bearers
Duty bearers
Development
actors
Support the
Children in conflict
with law to
demand their rights
Children
(and their
representatives)
Changes in
-Policies
-Practices
-Institutions
-Attitudes
-Participation
-Behavior
Changes in
children’s lives
Source: www.outcomemapping.ca/download.php?...OMLC%20Presentation
In this context, the rationale of realizing a child rights juvenile justice is to
provide a separate specialized mechanism and treatment with a view to
facilitating their human dignity and integrity. Figure 1 shows that it holds the
12
development actors, including the government, responsible for coming up with
rights-centred policies and for allocating budget and mobilizing resources for
delinquents. A rights-based juvenile justice system aims to “discover the
reasons for offending behaviour to identify and address the needs of the child
and to provide effective reintegration activities in order to prevent reoffending”(Hammarberg, 2008:194). Moreover the child rights based juvenile
justice seeks to advance the capacity and responsiveness of the relevant
authorities (Save the Children, 2002:28) and services like a child-oriented
judicial system and probation service, well equipped correctional centres, as
well as to bring changes in attitudes, practices, and values in the society by the
sensitization and training of different sections The procedures under a child
rights-based approach recognize the damage to the victim as well, should make
the juvenile offender understand that the deed was not acceptable and seek to
promote correction, reformation, rehabilitation and re-integration of the child
(Hammarberg, 2008:194).
The proponents of CRBA account the development actors to mobilise
resources albeit for rights-based intervention to assist the children, I personally
think this approach does not pay attention on the process of resource
mobilisation and distribution. That's why for many developing country, it
becomes very difficult to set the priorities to achieve a goal on child rights and
prioritise their actions accordingly.
Despite some limitations of child rights-based approach, yet Arts
(2006:10) argues, “The CRC is particularly useful in supplying the main
ingredients of a child rights-based framework within which any form of
concrete action related to children should take place”. CRBA brings together
good practice in a wide range of areas of child rights and development: child's
physical and emotional development, child' education and health, and child's
family life. A ‘Table Leg Test’ (figure 3) on a child rights-based approach
depicts how the CRC principles i.e. best interests of the child, nondiscrimination, participation and implementation (including of economic,
social and cultural rights) underpin the ultimate goals of the CRC and how a
lack of any of them frustrates the whole process (Wernham, 2004:20).
13
Figure 3: A Table Leg Test to introduce child rights based approach
Child rights based Approach : The Table Leg Test
Implementation of the
rights of the children
Participation
Best interest of
child
Non discrimination
Right to Life, Survival and
Development
If any of the legs is missing, the situation or proposed system is not stable
Source: Wernham (2004:21)
Rights-based juvenile justice stands on the CRC principles of nondiscrimination, best interests and participation of the child together with CRC
articles 37 and 40. In implementing the CRC, states parties in first place, shall
take all necessary measures to ensure that all children in conflict with the law
are treated in an equal manner. Discriminatory victimization in society
affecting former child offenders trying to get education or work should be
combated (UNICEF, 2007:604). Thus, states would supply appropriate
support with reintegration and public campaigns emphasizing their right to
assume a useful role in society. Secondly, the best interests of the child must be
a primary consideration throughout the process. For example, for a child
offender under 18 years-old, restorative justice objectives are fruitful reactions
as the child gets opportunities to correct himself. With reference to the right
to life, survival and maximum development in article 6, CRC, different
sentencing options like, arrest, detention and imprisonment must be used only
as a measure of last resort and for the shortest appropriate time as they have
very negative consequences for a child’s harmonious development and
seriously hamper his/her reintegration(ibid). Simultaneously, states shall also
ensure that children in conflict with the law exercise freedom of expression
and have the right to be heard in all judicial and administrative proceedings
affecting them (article 12(2), UNCRC).
In accordance with CRC provisions, thus, within a juvenile justice system,
children need to be treated with humanity and their best interest must be taken
care of. Article 40(1) of UNCRC envisages:
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
14
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.
Government has indeed three ‘level of obligations’ (Marks and Clapham,
2004:101) under a child rights-based juvenile justice to implement the rights
enunciated in CRC including the special provision (article 37 and 40) for the
children delinquents. At the outset, it will respect the rights of child delinquent
by refraining from interfering with the enjoyment of relevant rights. The
government will protect the right of the child offender in the next stage by
enacting and reforming laws that create mechanisms to prevent violation of the
rights of children in conflict with the law. In my view this should include the
introduction of different child-friendly sanctions prioritising the rehabilitation
process for the child offender, e.g. placing them in a community setting and
keeping them away from direct contact with law enforcing agencies. And
finally it will fulfil the rights of the youthful offenders by taking budgetary,
administrative and other measures to realize their rights.
2.1.3 Retributive vs. restorative justice
Retributive and restorative are two distinct theories of criminal justice. In
the first instance, retributive theory aims to determine whether the accused
commits the crime and then to punish the offender. According to Wenzel et al.
(2008:375), retributive justice is mostly centred on retributive theory of
punishment (an eye for an eye or a tooth for a tooth) that ‘‘criminals must pay
for their crimes; otherwise an injustice has occurred. Courts impose
punishment on offenders; once a punishment is imposed, justice is often
considered done. Furthermore, the punishment must fit the crime’’.
However, the retributive notion of justice does not look into the interests
of the victim, the offender, or society in general (figure 2) and prevention of
crime. According to Howard Zehr as quoted in Morris and Maxwell (2001:3),
“retributive justice seeks to vindicate law by determining blame and
administering punishment on the offender; it ignores the reoccurrence of the
offense through correction or rehabilitation of the offender”.
Restorative justice systems, on the other hand, have been practiced in
many parts of the world as alternatives to formal criminal mechanisms.
According to Wenzel et al.(2008:376), this approach focuses on “restoring
damaged relationships (between victim, offender and community) to the way
there were before a crime was committed - to make things right as much as
possible”.
15
Figure 4: Stakeholders involvement and common ground in retributive and
restorative justice process
Retributive Justice Process
Victim
Restorative Justice Process
Victim
Offender
Offender
Community
Community
Source: Bazemore and Schiff (2005:64)
Bazemore and Schiff (2005:63) explicitly express that while victim,
offender and community have many independent interests that don’t overlap ,
a restorative process seeks to discover the small area of overlapping interests
(common ground) to repair the harm as well as to support the offender (figure
2). The stakeholders would fix for themselves how to restore justice between
them to the extent possible by providing safety and support to the victim and
defining responsibilities of the offender.
Restorative justice requires the assumption that crimes or violations are
committed against real individuals, rather than against the state, i.e. it,
therefore, advocates restitution to the victim by the offender rather than
retribution by the state against the offender (Hutchison and Wray, 2003). Even
so, the state is present in some forms at all levels of society. It is put by Jantzi,
(2004:192-195), “the role of the state in restorative justice is very complex.
From a macro aspect of restorative justice, the multiple role of state in
restorative justice as a stakeholder includes establishment of restorative justice
practice and extend to seek ways to develop responsibilities for ownership and
action to the community through legislation and budgetary allocations”.
Proponents of restorative justice theory argue that restorative justice
programs promote healing and restoration for the victim, while seeking
repentance and responsibility from the offender. These goals are often pursued
through a facilitated dialogue between the victim and the offender (Zernova,
2007:42). They also claim that “this form of justice is able to both decrease
recidivism and increase victim satisfaction relative to the traditional court
system since the victim has an opportunity to confront the person who
16
victimized them, receive an apology, and play a role in determining what the
offenders must do to repair the harm” (Gromet and Darley, 2006:396).
From the propositions by different restorative theorists I like to argue that
restorative justice over-emphasizes on the reintegration of the accused person
than how true justice can be guaranteed for the victim or what process is
needed to secure victim's justice/victim's satisfaction. In Bangladesh, the
informal dispute mechanism system in the local governance level that follows
restorative justice does grant mandatory compensation order/monetary
penalty/fine as an option to repair the harm and provide justice to the victim.
The reason behind that is the imprisonment or community service may do little
for the victim where financial penalty assumes a punitive and reparative role
for the offender and victim respectively. But still the question remains, how far
restorative could be sufficient to meet victim's need for justice?
Again, this is my view that restorative justice additionally fails to address
the socio-economic root causes of crime in a society, hence it is not preventive.
It ponders mainly on the narrow definition of crime occurred between real
individuals, thus it is confined to relationship within a small scale.
Restorative justice applies to people of all ages but it is especially
important in relation to young offenders as it provides the option of having a
lasting impact on their emotional and moral development (Interagency Panel
on Juvenile Justice, 2011)inasmuch as it promotes diversion, community
service and alternatives to detention as sensible approaches in order to keep
child offenders away from retributive punishments of criminal justice. Besides,
as far the juvenile delinquency-control potential is concerned, evidence
suggests that restorative justice programs tend to reduce reoffending but with
considerable variation between offence types and contexts (Braithwaite,
2003:121; Latimer et al. 2005:140, Sherman et al. 2005:379). The term
‘considerable variation between offence types and contexts’ can be clarified
from the interviews carried out with the key informants during the research.
They argue that restorative justice through the community treatment dealing
children in conflict with the law could better work on first offender, offender
who commits minor offence or admits their fault than hard-core youth
offenders.
In consideration of state obligations to apply restorative justice, the United
Nations Secretary-General’s Study on Violence against Children recommends,
“States should establish comprehensive, child-centred, restorative juvenile
justice systems that reflect international standards” (Report of the independent
expert for the United Nations Study on Violence against Children, Para.
112(b)). In General Comment No. 10 on “Children’s rights in Juvenile Justice”,
the CRC Committee(2007:5) in like manner, emphasized that “rehabilitation
and restorative justice are the objectives in a rights oriented juvenile justice
system, not retribution or repression” . Furthermore, the Belfast Declaration
resulting from the XVII World Congress of the International Association of
Youth and Family Judges and Magistrates 2000(para 6) stated that:
States should adopt, after consultation with children and young people, in
compliance with the CRC and other international agreed standard. . . . .a
holistic youth justice system which prioritises and properly resources. . . . a
restorative justice system which should include a meaningful partial transfer
17
of power to communities, victims, off enders and their families to produce a
restorative response to off ending.
However, although overlapping child rights based juvenile justice and
restorative justice are not same. It would be a mistake to attempt to blend them
in any robust sense. Restorative justice, as an alternative method of conflict
resolution, has its origins from aboriginal teachings, Christian faith
communities, prison abolition advocates (Leung, 1999) whereas child rightsbased juvenile justice has been developed on UNCRC that encourages
different forms of restorative/non judicial interventions for the children in
conflict with the law.
2.1.4 Alternatives to deprivation of liberty and juvenile diversion
Alternative responses to criminal sanctions and juvenile diversions, according
to UNICEF, are essential elements of a child rights-based justice system which
aim to minimize negative impacts and maximum opportunities for positive
inputs into children’s development (UNICEF, 2009:2). Where contact with the
formal justice system is unavoidable, a specialized justice system for children in
conflict with the law may inspire involvement with a community setting, taking
into account the age and circumstances of the children involved.
A juvenile diversion program implies a counselling method instead of
formal court proceedings for juvenile offenders accused of criminal offences
i.e. to divert young people, wherever possible, away from the penal systems
into informal networks of control, support, and care (Smith, 2011:4). These
programs include victim-offender mediation (FOM), Family group
conferencing (FGC), Community-based sanctions. Diversion allows offending
to be dealt with at a level that is proportionate to the seriousness of the offence
with input from the youth’s family, community and in many instances the
victim (Graveson, 2009:16). The purpose of such practice is to prevent the
negative effects for the juvenile offender of subsequent criminal proceedings
e.g. the stigma of conviction and sentence (Ahmed, 2009:53).
Alternatives to detention refers to measures that may be imposed on
children who are formally processed through the criminal justice system, at
both pre-trial and sentencing stages that do not involve deprivation of liberty
(UNICEF, 2009:2).Alternative responses are fine/compensation to the victim,
care, guidance, community service order.
Alternatives to deprivation of liberty and diversion methods have their
basis in international treaties. At least 15 different international human rights
instruments and related guidelines contain a total of 77 articles, rules,
guidelines or provisions directly relevant to diversion and alternatives for
children in conflict with the law (ibid). CRC (articles 37(b) and 40(3b))
explicitly advocates for non-judicial proceedings such as alternatives and
diversion for the children delinquents:
The arrest, detention or imprisonment of a child only as a measure of last
resort and for the shortest appropriate period of time and whenever
appropriate and desirable, measures for dealing with such children without
resorting to judicial proceedings; a variety of dispositions, such as care,
guidance and supervision orders; counselling; probation; foster care;
18
education and vocational training programmes and other alternatives to
institutional care shall be available to ensure that children are dealt with in a
manner appropriate to their well-being.
The Beijing Rules (rule 17) also provides guidelines and directions the
states to use of alternatives to institutionalization to the maximum extent
possible. The Riyadh principles (principle 6) withal confirm that communitybased services and programmes should be developed in a juvenile justice
system.
2.1.5 Rehabilitation
The concept ‘rehabilitation’ is closely associated with the theories of justice
discussed in the research paper. The paper works with child rights based
juvenile justice as a key concept which aims to protect children's survival and
development and rehabilitate the juvenile offender into the community with
his/her dignity and integrity. This could be actualized through the use of care,
guidance, counseling, technical training, education and leisure because the
offender is perceived to be down and needs treatment (Nwankwo, 2008:25).
The content and implementation of a rehabilitation plan intends to lower risk
and to enhance offender well-being (Ward and Langlands, 2009:213). The skills
and training the offender gets from the rehabilitation process benefits him to
find an employment or get back the previous job/education after the end of
sentence.
UNCRC (article 40) also imposes obligation on the states parties “to
recognize the right of every child accused of infringing 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 which
takes into account the desirability of promoting the child's reintegration in the
community”. With different alternative sanctions and diversionary programs,
state can save the juvenile offenders from social stigma and rehabilitate them
in the society with their previous position.
2.2 International legal framework
There are a series of international instruments in relation to dealing with
children in trouble with the law. The Convention on the Rights of Child spells
out a comprehensive set of rights for protection of children in a juvenile justice
system. The dominant feature is that the state is obliged to protect the rights
of the child in all categories of informal or formal justice to promote the best
interests of child. The CRC Committee (2007:5), in General Comment 10,
stated that to advance the notion of best interest of child, states parties shall
develop and implement a comprehensive juvenile justice policy to shield child
rights from exploitation as well as to prevent and address juvenile delinquency
based on and in compliance with CRC.
In addition to the CRC, there is also international soft law in favour of
child rights-oriented juvenile justice. It consists of non-binding but
authoritative declarations or guidelines including United Nations Standard
Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) 1985,
UN Rules for the Protection of Juveniles Deprived of Liberty (Riyadh
19
Principles) 1990, Standard Minimum Rules for the Treatment of Prisoners of
1955, and UN Standard Minimum Rules for Non-Custodial Measures of 1999
(Tokyo Rules).
These international guidelines also impose soft legal obligations upon
states to come up with a child-led juvenile justice system. Beijing Rule 1(4)
notes that “juvenile justice shall be conceived as an integral part of the national
development process of each country, within a comprehensive framework of
social justice for all juveniles, thus, at the same time, contributing to the
protection of the young and the maintenance of a peaceful order in society”.
2.2.1 Definition of ‘child’
Most likely a child is an individual who is not an adult. CRC (article 1) defines a
child as “every human being below the age of 18 years unless under the law
applicable to the child, majority is attained earlier”. The Convention explicitly
specifies the upper age limit for childhood as 18 years, but leaves room for the
state parties that majority may be attained earlier under domestic laws
applicable to the child.
However the definition of child in article 1, CRC is also evidenced by
reservations and recognitions of state parties on the beginning and ending of
childhood. For instance, Argentina lodged a declaration on ratification that
article 1 ought to be interpreted to the effect that a child means every human
being from the moment of conception (Bueren, 1998:34). On the other hand,
similarly different contemplations administer the end of childhood, for
instance, in the USA and in France, children who are 16 years old can be
emancipated as adults with parental consent whereas Japan wished to see a
higher age for the beginning of adulthood as this would be consistent with
their domestic legislation (ibid:37)
Though the international community could not reach a universal
definition of child or childhood, CRC state parties are obliged to go with the
text of convention. Bangladesh, as a party of CRC recently adopted NCP and
declared any person below 18 years of age as a child notwithstanding any
different age is contained elsewhere (Ministry of Women and Child Affairs,
policy 2: 2011)
2.2.2 Arrest procedures and detention
The child specific and non child specific international human rights treaties
observe that children shall not be subject to inhuman and degrading treatment.
The CRC holds in article 37(b) that “arrest and detention of a child must be in
conformity with the law and should be used as a measure of last resort”. The
child delinquent shall be informed of the charges against him/her promptly
after the arrest and have the assistance of his/her parents or legal
representative in all stages of proceedings. The CRC Committee (2007:12) also
reminded states parties that utmost care must be taken to ensure that the
child’s human rights and legal safeguards are fully respected and protected
while the child is arrested and tried.
Furthermore, the UN Rules for the Protection of Juveniles Deprived of
their Liberty, popularly known as the ‘JDLs’ rules also consider deprivation of
20
liberty as a last resort which must be limited to exceptional cases. Rules 17 and
18 lay down that “Juveniles who are detained under arrest or awaiting trial are
presumed innocent. . . .juveniles should have the right of legal counsel and be
enabled to apply for free legal aid, where such aid is available, and to
communicate regularly with their legal advisers”.
The non child-specific convention such as, ICCPR stipulates (article 10
and 14) that child offenders must be segregated from adults and that the court
while trying the child, must consider the age and desirability of juvenile persons
to promote rehabilitation. The Convention on Torture (CAT) of 1984 (article
2) also requires states to take administrative, judicial, legislative or other
measure to prevent acts of torture or inhuman punishments against human
beings.
2.2.3 Specialized institutes for children in conflict with the law
The CRC in article 40(3) requires the parties to promote the establishment
of special procedures, authorities, or institutions which would be child friendly
and child sensitive. The CRC Committee in (paragraphs 92 and 94) of General
Comment 10 stated that “a comprehensive juvenile justice system further
requires the establishment of specialized units within the police, the judiciary,
the court system, the prosecutor’s office, as well as specialized defenders or
other representatives who provide legal or other appropriate assistance to the
child”. The establishment of specialised child friendly institutions, for instance,
child ombudsman, juvenile police unit, is to foster the rehabilitation process
and nourish child's development.
2.2.4 Sentencing options
The CRC and other international treaties are very sympathetic in concern to
sentencing a child offender. Either correction or rehabilitation of the child in
the society is the cardinal principle of these documents. No child shall be
subjected to death penalty, life imprisonment without parole or any type of
torture or other cruel, inhuman or degrading treatment or punishment (article
37a, CRC). Instead of criminal punishments, CRC (article 40(4)), Beijing Rules
(rule 18(1)) and Riyadh Guidelines (rule 6) also attempt to enumerate some of
the alternative sanctions like, probation, community service orders, financial
penalties, compensation and restitution as sentencing options to a child
offender (refer to appendix 9)3.
It is, therefore, reaffirmed by CRC Committee(2007:9) that, as part of a
comprehensive policy for juvenile justice – states need to develop and
implement a wide range of non repressive measures to ensure that children are
dealt with in a manner appropriate to their well-being, and proportionate to
both their circumstances and the offence committed. These should include
various diversionary activities and other alternatives to incarceration.
Appendix 9 indicates ‘different provisions of international instruments (UNCRC and other
soft instruments) related with juvenile justice’
3
21
2.2.5 Reintegration and rehabilitation policy
One of the principal features of a child rights-based approach to juvenile
justice is to rehabilitate and reintegrate the child offender in the community
and to ensure the full and harmonious development of the personality of a
child coming in conflict with the law. The CRC in article 40(4) requires states
parties to treat a child offender in a manner consistent with the promotion of
the child's sense of dignity and worth, which takes into account the child's age
and the desirability of promoting the child's reintegration and the child's
assuming a productive role in society. The use of deprivation of liberty such as,
harsh criminal punishments or imprisonment has very negative consequences
for the child’s development and seriously hampers his/her reintegration in
society (CRC Committee, 2007:5). In contrast, diversion and alternative
treatment to imprisonment that facilitates the child’s reintegration offers a
productive role of the child in society (ibid: 6). In addition to the CRC, the
Beijing and Tokyo Rules put forward also appropriate non-custodial
arrangements as alternatives to confinement for children's rehabilitation (refer
to appendix 9).4
2.3 Summary and concluding remarks
Children in conflict with the law are the central subject of juvenile justice
system. They need extra care since they belong to vulnerable and underprivileged section. Their rights however seldom get protected and prioritised in
a formal criminal justice system. In this chapter, the theories of justice such as
restorative justice, child rights-based justices have been examined to address
the complexity of the conventional criminal justice system. The relevant ideas
for example, alternative sanctions, diversions or rehabilitation have provided a
strong outline for any domestic legal system to advance social reintegration of
children in trouble with the law.
To deal with the issues relating to juvenile justice in Bangladesh, it is
important to think about child-friendly laws in the international law that yield
children best interests and their prosperity. The non-implementation of those
laws in Bangladesh brings poor treatment and violation of rights of the
children in conflict with the law.
4
ibid
22
CHAPTER 3: DOMESTIC STANDARD ON
(FORMAL) JUVENILE JUSTICE IN
BANGLADESH: LAW AND PRACTICE
In Bangladesh there is no separate legislation on children in conflict with the
law. The Children Act 1974 along with the Children Rules 1976 are the
principle legal documents governing the juvenile justice system. They deal with
children in need of protection on the one hand, such as destitute or street
children, and on the other hand with children in conflict with the law or
youthful offenders. These legislations enumerate both substantive as well as
procedural provisions to treating a child delinquent.
However, studies (Rahman 2003, Khan and Rahman 2008, Ahmed and
Islam 2010, Ali 2010) show that the administration of juvenile justice in
Bangladesh suffered from a most glaring gap between the law in the books and
practice on the ground. This chapter starts with a brief history of juvenile
justice administration in Bangladesh and then takes on the guiding principles of
domestic laws as well as the practice on the ground.
3.1 Background of the juvenile justice system in Bangladesh
Before the partition in 1947, there was no specific law to deal with children in
conflict with the law. According to the Apprentices Act 1850, which was
passed in the Indian subcontinent, magistrates could exercise all the powers of
a guardian of any child above the age of ten and under the age of eighteen who
was brought up by public charity, crafts and employment (preamble, the
Apprentices Act 1850). The power of a magistrate extended to dealing with the
commission of petty offences by the child concerned (section 15, The
Apprentices Act 1850). Later on, the Reformatory School Act 1897
empowered legal governing bodies to establish reformatory schools to provide
special treatment to child offenders (Khan and Rahman, 2008:11). But it was
only applicable to a boy offender under fifteen years of age (ibid). The Code of
Criminal Procedure 1898 came into force and urges for specialized treatment
in dealing with a juvenile delinquent, such as provisions for reformatory
schools or probation service.
Consequently ‘the Indian Jail Committee’ appointed by the Government
of India condemned the practice of sending juveniles to jail, recommended to
set up separate machinery for the trial of child delinquents and suggested
release on probation in reward of good conduct, with or without supervision
after release (ibid). Upon these recommendations, the Children Act 1922 was
adopted. It provided in section 2 that a child under fourteen years of age
accused of any crime would be tried by a juvenile court. Finally this Act was
repealed by the Children Act 1974 which still is the principal law in Bangladesh
dealing with children in conflict with the law. The Children Rules 1976 were
then adopted to complement the Act of 1974.
Under the Children Rules 1976, two correctional centres were established
in 1978, only for boys. The third correctional centre, for girls, in Konabari
23
started functioning in 2002. From 1978 to June 2002, statistical data are
available of the inmates remanded in police custody, discharged by the court,
placed on probation and remanded in the correctional centre (table 1). The
table depicts the fact that children delinquency has been a serious problem in
Bangladesh throughout the years.
Table 1: Inmates remanded, discharged, on probation from 1978-June 2002
Year
1978-1982
1983-1987
1988-1992
1993-1997
19982002(June)
Total number
of
children
remanded
in
police custody
801
2242
1536
1766
2306
Discharged by Remanded
the court
in
correctional
institutes
260
509
679
1525
458
1030
494
1175
1206
1033
Placed
probation
on
42
38
48
53
38
Source: Juvenile Justice Administration and Correctional Services in Bangladesh (2002), Department of
Social Services, Ministry of Social Welfare, Government of People’s Republic of Bangladesh, Dhaka
However there is lack of reported evidence and statistics regarding trends
and rates of juvenile crime committed by girls in Bangladesh.
3.2 The juvenile justice in Bangladesh: General provisions and
their practice
As stated before, juvenile justice is administered by the Children Act along
with the Children Rules. The legal instruments on juvenile justice in
Bangladesh however rely heavily on institutionalization or imprisonment of
children which is generally seen by the police and judiciary as the only possible
way to rehabilitate or correct children (UNICEF, 2010:2). The state report to
the UN Committee on the Rights of the Child acknowledged that
improvements had been made such as removing some children from adult jails,
establishing child development centres and training legal professionals in
juvenile justice, but also that the government still needs to do much more in
compliance with the UNCRC (CRC Committee, 2008:83).
The reason of less attention on rights-based juvenile justice system in
Bangladesh is that in practice the juvenile justice law is not well exercised. The
Chairman of National Human Rights Commission argues that there are
psychological factors (e.g. lack of awareness of the stakeholders or political will
to comply with international law) as well as physical factors (e.g. lack of
physical resources including human resources,) for non-implementation of
juvenile law in Bangladesh (see appendix 7 for details). However under the
international and national law (figure 4), Bangladesh is duty bound to look at
the rights of children in conflict with the law with highest possible attention.
24
Figure 5: Obligation of Bangladesh under international and national legislations
Architecture of obligations of Bangladesh arising from national and international child-rights instruments
International legal
obligationsUNCRC(basic
principles and articles
37 and 40
National legal obligation
(The Children Act 1974
and The Children Rules
1976)
International moral
obligationsSoft instrumentsTokyo Rules
Riyadh Principles
Beijing Principles
Obligations of
Bangladesh
Source: Compiled by the author
The existing domestic enactments on juvenile justice provide a legal
procedure for custody and protection of a child delinquent. These also lay
down the specialized mechanisms for trying children such as the establishment
of a juvenile court, separate criminal procedures, and certified correctional
institutes to bring about rehabilitation for them. The major provisions of the
Children Act are discussed below.
3.2.1 Arrest and arrest procedure
In Bangladesh, the police have been given wide discretionary powers to arrest
under various special laws, such as the Special Powers Act 1974, the Arms and
Explosives Act 1884, and the Code of Criminal Procedure 1898. Under the
Children Act (section 32) also, the police has the power to take children into
police custody on very broad grounds, such as, prostitution, begging, being in
the company of a reputed criminal, or being a victim of crime. The police can
also arrest anyone on the grounds of reasonable suspicion that the person may
be involved in a criminal act (section 54, Code of Criminal Procedure 1898).
The Children Act is silent on prohibiting physical force or using handcuffs
during the arrest of a child though, the CRC Committee (2009:23) is very
concerned at the ill-treatment of children by the police and requires state to
intervene. In practice, high levels of abuse or physical violence is common
during arrest (figure 6) and after arrest in police custody.
25
Figure 6: Police's action against a child in Dhaka
Source:http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8666
000
Human Rights Watch(2003) quoted in Wernham (2004:24) reports that in
many developing countries, “the police routinely use obscene and degrading
language to humiliate and intimidate children during arrests, especially using
terms such as 'bastards' , 'children of whores or dogs' or making reference to
children's mother's sexual organs”. The interviews with the juvenile offenders
too showed that among seven, two were physically beaten by the police after
arrest and three claimed that the police used offensive comments to them
during arrest (refer to appendix 8)5.
After a child is arrested alleged to commit a crime or on suspicion, the
Children Act (sections 13 and 50) asks “the officer in charge of the policestation to which (s) he is brought to inform the parent or guardian or to inform
the probation officer of such arrest in order to enable the probation officer to
proceed forthwith in obtaining information regarding his/her antecedents and
family history and other material circumstances likely to assist the Court in
making its order”.
However in practice the Act was rarely followed. After a period of lock
up, sometimes the child is handed over to his/her parents in exchange of
money (Rahman, 2003:25). Besides some police reportedly deliberately misstate
the age of the child delinquent on the charge sheet in order to avoid added
procedural mechanism required in the Children Act (UNICEF, 2006:4) One of
the respondents said, “the police is aware of the Children Act 1974, albeit to
avoid the supplementary formalities, such as, to inform the probation officer
or to keep him in a remand home or. a place of safety, set in the Act, they
falsify the age of the child and place him with the adult. Suppose, if a child is
arrested at mid night alleged to carrying drugs or arms, it becomes often
impossible for the duty officer owning to lack of logistic support in police
station, like vehicles, fuel, to send him to the probation officer or to bring him
before magistrate or to follow other special procedure. By and by, due to
insufficient fund, most of the police stations do not have arrangements for
separate cell for the children and the police use to keep children with the adult
offenders in police cell.”(personal interview with a police officer 6, 2011).
Figure 7 also demonstrates that children are not treated differently and
5
6
Appendix 8 summarizes the focus group discussion with the children in conflict with the law
An anonymous police officer at Gulshan Police Station, Dhaka
26
separately by the police in police custody though the juvenile law in Bangladesh
appeals separate arrangements from adult offenders. The discussion with the
child offenders in child development centre confirms that six out of seven
children in conflict with the law were detained with adult offender in police
custody (refer to appendix 8)7.
Figure 7: Children treated with adults in police unit in Bangladesh
Source: UNICEF (2010:3)
In recent years UNICEF Bangladesh, along with other inter-governmental
organizations, has addressed the issue of separate treatment of the children in
police custody or in prison centre. UNICEF developed training materials on
juvenile justice specifically on topics included case management, interviewing
skills, legal procedures, victim-offender mediation training and international
legal standards for police, magistrates and judges (UNICEF, 2010:4). Study
shows “as a consequence of training and workshops on juvenile law with the
professionals involved with juvenile delinquency, the number of children in
adult jails is slowly decreasing: In October 2008, there were 277 children in
adult jails, including 105 aged under 16. By November 2009 that number had
reduced to 205 children including 98 aged less than 16” (ibid).
3.2.2 Provisions for bail and detention
Section 48 of the Children Act empowers the police in charge to release a child
on bail, even for a non-bailable offence to avoid the use of police custody. The
provision has not been genuinely practiced in the ground. The police are
unaware of the law, or do not have the resources to trace parents (Rahman,
2003:3).
Under statutory law, police would take care of the child in custody until he
has not been brought before the court. It is also found that misconduct and
Appendix 8 summarizes the findings of the focus group discussion with the children in
conflict with the law
7
27
negligence of the police cause to mistreatment of the detained children in the
custody. It is evident by Khan (2000:19) that “most often in police station,
police remove money from children in return for small quantities of food.
Children are then unable to buy food for themselves. Children have also
reported that most often the food when provided is stale and inedible. There is
scarcity of water and children are not provided with clothes”.
Under this Act children are subject to the same requirements as adults
with respect to sureties and bond payments (UNICEF, 2006:42). Nonetheless,
the Act does not prefer any non-custodial options, such as care, guidance, as a
method to correct the child. Children who are subject to pre-trial detention are
sent to the specialized remand home ‘child development centre’. Children who
are on remand are kept here under full time confinement and are allowed to
meet their families with certain restrictions (ibid)
3.2.4 Provisions of specialised institutes/juvenile courts and trial
proceedings
The Children Act 1974 asks for a separate trial system for youthful offenders.
Sections 3 and 4 state that “the government may by notification of official
gazette establish one or more juvenile courts for any local area and the powers
conferred on a juvenile court can be exercised by the High Court Division or
by a Court of Sessions or by a Court of an Additional Judge or by an Assistant
Sessions Judge or by a Magistrate of first class”. The proceedings must be
conducted in as simple manner as possible in a home-like atmosphere (rule 4,
Children Rules).
However in practice, “there is no juvenile court in district headquarters”
(Rahman, 2003:16). Thus “it becomes difficult for the police to send a child
offender from a remote village to the divisional headquarters/capital cities;
consequently, it increases the possibility of lengthy contact with police and
violence against the children in custody” (Salam 8 2011, personal interview).
Most of the magistrates dealing with children delinquency are unaware of
the provisions of the Children Act 1974 and they did not receive special
training on children law (ibid). So when the charge sheet misstates the age of a
youthful offender, they become reluctant to use their discretionary power
because of lack of knowledge and willingness. One of the respondents says,
“The magistrates are to work on paper (charge sheet) which we receive from
the police. We cannot go beyond it because we are over-burdened with cases
and we are supposed to decide a case within a limited time” (Salam9 2011,
personal interview). Evidence also finds the magistrates to oppose to apply
moral conscious too when in 2005, a six years old boy had been granted bail
and required for further attendance in the hearing of court after being accused
of rape (The Daily Star,10 March, 2005).
Last but not least; Bangladesh has yet to establish a Child Ombudsman
that could inquire the allegations from the children against their employer,
teachers, community members, and police. An office of child ombudsman also
8
9
Judicial Magistrate, Metropolitan Magistrate Court, Dhaka.
ibid
28
could advice the government to develop new policies and practices conducive
to child's interest and benefits.
3.2.5 Sentencing option for juvenile offenders
Under the Children Act(section 15), the court would make an order of
discharge after having considered the age of the child, the circumstances where
he/she lives and the report from the probation officer as to child’s background
and family history. The court may also impose an order of release on probation
under the supervision of a probation officer for a period up to three years
(article 50, the Children Act). Regarding imposing a sentence, capital
punishment is absolutely prohibited for a child offender. Section 51 of the
Children Act states that:
No child shall be sentenced to death, or imprisonment : provided that when a
child is found to have committed an offence of so serious a nature that the
Court is of opinion that no punishment, which under the provisions of this
Act it is authorized to inflict, is sufficient or when the Court is satisfied that
the child is of so unruly or so, depraved character that be cannot be
committed to a certified institute and that none of the other methods in
which the case may legally be dealt with is suitable, the Court may sentence
the child to imprisonment or order him to be detained in such place and on
such conditions a s it thinks fit.
Before the adoption of the NCP in 2011, children between the ages of 16
and 18 were not covered by the above provisions and could be sentenced to
death or life imprisonment which is a gross contradiction with the CRC and
other international instruments. The state report submitted to the CRC
Committee(2008:65) acknowledged that there were four children under 15
years serving life sentences in Tongi CDC and one such child in Jessore centre.
The Children Act 1974 is also deficient in providing noncustodial
dispositions, even in petty criminal cases, except conditional probation.
3.2.6 Certified institutes for the juvenile offenders
In Bangladesh there are three specialized institutes set up under the Children
Rules 1976 for the detention of child offenders. These are monitored and
supervised by the Department of Social Service under the Ministry of Social
Welfare.
Evidence (Khan and Rahman, 2008:83, Rahman, 2003:17-27, UNICEF,
2006) shows the very unsatisfactory condition of the post-trial
institutionalization system for the juvenile offenders in Bangladesh. This is
almost entirely because of poor administrative cooperation and lack of
sufficient logistic support from the Ministry of Social Welfare (Rahman,
2003:47-51). For example, the vocational training programs in the centres such
as tailoring, automobile, electric service are very obsolete and modern technical
education such as; computer programming is open to very limited delinquents.
Only the Muslim five times prayers is conducted in the centre, there is no
arrangement to perform the activities of other religions (Rahman, 2003:34).
29
The interviews with the children in conflict with the law in the child
development centre also depicted a lack of basic facilities, such as, lack of
electric fans in the summer and sanitation facilities. Yet one of the respondents
said, ‘I come from a very poor family where my parents hardly could manage
three times a meal in a day, so I am happy with the three meals I get in the
centre’ (a juvenile offender aged 12 years, 2011, FGD)10. Though apparently
the meals seem to be better than what the poor children got previously, the
meals provided to them are not very tasty and healthy - meat is served only
once in a week while milk, a source of adequate nutrition, is not in the diet
menu (refer to appendix 10)11.
Additionally there are no arrangements in child development centre for
keeping the children separated in accordance with their age. Ali (2010:229)
argued that “the need to keep older children separate from younger children is
patent if we consider their physique. It is a common phenomenon that younger
children may be exposed to psychological abuse and bullying by older peers
and more importantly, they may be sexually abused, which would leave them
distraught and scared for life”. Child's placement and adjustment according to
his age and development stages are completely left behind in the concerns of
CDC authorities.
3.3 Social rehabilitation of children in conflict with the law:
Current practice and experience
As stated in the previous chapter that CRC and other instruments dealing with
children in conflict with the law gear towards restorative principles in a juvenile
justice to reintegrate the children. In Bangladesh the rehabilitative provisions
of offender can be found in the Probation of Offenders Act, 1964, where the
aim of the law is to allow for leniency in awarding sentence to first time
offenders and those who have committed a lesser offence albeit, the ordinance
is rarely used dealing with a child (Ali, 2010:196). In State vs. Roushan Mondal
alias Hashem (2007), the High Court Division of Bangladesh held thatThe overall aim the juvenile law in Bangladesh is not to punish the offender,
but treating the cause of their criminality and directing them on a path which
will be acceptable to mainstream society in order to ensure their
rehabilitation.
However the reality contradicts what the law and precedents are
conveying. The practice still lays money on the full confinement with some
vocational and correctional activities as a core technique of rehabilitation.
Additionally the negative mindset and attitudes of the family/people in the
society may put the rehabilitation process at risk. The people view child
delinquency in same line with crimes committed by adults and encourage harsh
punishment/full incarceration on the children (Ali, 2010:6). In many cases,
even parents are as well unwilling to take the children back to the family or
sometimes helpless to carry out their parental obligation. Abdul Haque,
assistant director of Jessore child development centre, quoted in McNamara
10
11
Focus group discussion with juvenile offenders at Child Development Centre, Tongi.
Appendix 10 shows the weekly diet menu for the inmates of correctional centre
30
(2009) says that “most of the boys in this centre are from poor or broken
families. Sometimes, when their case finishes, the boy is free and we provide
the information to their families, but the family doesn’t come. The mother may
think that the boy is a burden for her, and is living well in the centre. So where
do they go? They are free but they have no home to go to”.
In another case McNamara (2009) points out, when a child is placed on
probation under a probation officer, the officer does not behave humanly with
the child: he warns the teenager to stay on his best behaviour- “You are out of
the centre, but you are not free from the law. You have to answer to the law,
to your family, and to me. It is up to you to maintain your freedom”
The mindset of people in favor of institutional rehabilitation in the present
juvenile justice system of Bangladesh needs to come on an end by the
successful establishment of the necessary infrastructure for alternatives and
diversions. We cannot ignore the truth that the role of children in building
society confides in the protection of their physical, moral, spiritual
development and that becomes only possible when a young offender is
rehabilitated in the society with his/her human dignity and self-worth.
Unfortunately this is not the case in Bangladesh.
3.4 Summary
The chapter has displayed that despite having different juvenile protection
clauses in the law of Bangladesh, these provisions are not efficiently
implemented in the practice on the ground. Children coming in conflict with
the law are treated degradingly by the law implementing agencies and they are
languishing in CDCs without care and support. After a child served his
sentence in the centre, often he does not get the same cooperation because of
social stigma from his family/community that he deserves and this ultimately
actualizes an impediment in effective social rehabilitation. This grave violation
needs to be redressed by the assistance of the state and non state actors in
Bangladesh to accomplish a child rights oriented juvenile justice.
31
CHAPTER 4: DIVERSION AND
ALTERNATIVE SANCTIONS IN THE
(INFORMAL) JUVENILE JUSTICE SYSTEM
OF BANGLADESH
4.1 Background
As implied in the previous chapter, the juvenile justice system in Bangladesh
mainly relies on retributive criminal justice and does not recognize alternatives
to deprivation of liberty and diversion. The alternative sentence, probation is
though perceived in the formal criminal justice system by the Probation of
Offenders Act 1964 for all prisoners including child delinquents; the probation
of a child delinquent is mostly exercised on a court order under Children Act
1974 once his trial is completed in a juvenile court.
Article 40 CRC establishes a presumption in favor of diversion and
alternative sanctions by recommending non-judicial sentencing in dealing with
a child in conflict with the law. To line with the CRC provisions, non-custodial
sanctions need to be integrated in the law on juvenile justice in Bangladesh.
With respect to this concern, one NGO professional brings out, “if we believe
that juveniles are not as culpable as adults and their greater treatability warrants
a special system for them which aim to admit reintegration of them, why
doesn’t Bangladesh need to introduce a desirable model of restorative justice
considering the rehabilitation policy of children? It is urgent to address this
issue because of that, proper rehabilitation strives to secure the fundamental
human rights of a child in trouble with the law” (Uddin 12 2011, personal
interview)
Outside the formal criminal system, however, informal
measures/alternative dispute resolution are already in place in many parts of
Bangladesh, though, these provisions are not recognised by the Children Act
1974. This chapter starts with an overview of the informal means to dispose of
minor criminal offence and its potential implications. Afterwards it will reveal
the major obstacles in relation to introducing a full-fledged alternative and
diversion-oriented system for child delinquents in Bangladesh.
4.2 Informal mechanisms within local government for the
children in conflict with the law
Beyond the criminal courts, two informal forums are entitled to decide a
criminal case under the law of Bangladesh: the Village Court within a union
parishad13 and Dispute Conciliation Boards for municipal areas. “These bodies
are headed by local government personnel who handle disputes between the
parties with the aid of the additional nominees nominated by the parties”
12
Director, Bangladesh Child Rights Forum(Bangladesh Child Rights Forum)
13Local
government(Union Parisad) Ordinance 1983(Ordinance no LI of 1983) defines, ‘Union
Parishad is the local government institution in rural areas, established by Local Government’
32
(Khair, 2008:104 cited in Khan and Rahman, 2009:31). The procedures of the
alternative dispute resolution (ADR) through Village Court and Dispute
Resolution Board are in line with restorative justice principles by which victim
and offender play a participatory role in repairing the harm. There is also
another non-state justice system, so-called ‘shalish’ in the local community to
resolute disputes. All informal mechanisms will be further introduced below.
4.2.1 Village Courts
“The village court is an ad hoc forum for adjudicating minor disputes or
conflicts in rural areas”(Khan and Rahman, 2009:31). A village court is
composed of a chairman of the union parishad and four representatives – two
from each party, one of them being a member of union parishad (section 5(1)
Village Courts Act 2006). A village court has exclusive jurisdiction to try all
disputes that are enumerated in the schedule of the Act (refer to appendix 3)14.
A village court may forward a case to the criminal court for disposal,
sometimes on an order of a magistrate (section 16, the Village Court Act 2006).
It cannot order for imprisonment or fine, the only remedy that the Village
court can exercise is compensation of an amount not exceeding 25000 BDT
(section 8(1), Village Court Act 2006).
4.2.2 Dispute Conciliation Board
In municipal area, a dispute resolution board has exclusive jurisdiction to try
any criminal case specified in the schedule (refer to appendix 3)15 of the
Disputes Conciliation (Municipal Areas) Board Act 2004. The formation of
such a board and options of adjudication are the same as those of a village
court. But this Board cannot try a person if (s) he has been convicted for any
cognizable offence (section 4(2a) the Disputes Conciliation Board Act 2004).
4.2.3 Shalish or Mediation
The term “shalish” (or “salish”) refers to a community-based, largely informal
Bangladeshi process through which small panels of influential local figures help
resolve community members’ disputes and/or impose sanctions on them
(Golub, 2003:3). Shalish deals a wide range of civil issues, some with criminal
implications, such as minor theft. It has very limited scope to try a child who
allegedly committed a crime though; sometimes solutions are arbitrary and
imposed on reluctant disputants by powerful village or community members
(ibid).
Appendix 3 describes Schedule 1 of The Village Court Act 2004 and The Disputes
Conciliation (Municipal Areas) Board Act 2004
15 Ibid
14
33
4.3 Implications of informal mechanisms in the juvenile
justice system in Bangladesh
One of the questions posed to the key informants was whether the types of
punishments available for the child offender in Bangladesh help to correct
or/and rehabilitate them. All the respondents agreed that non-custodial
sanctions instead of present detention-based reformation system need to be
perceived and indeed for the benefits of the children. The Children Act 1974
unfortunately does not contain specific provisions of neither alternative to full
confinement, nor diversionary programs for the children in conflict with the
law.
They also believe that the framework for juvenile diversion and alternative
sanctions in the informal mechanism in Bangladesh would involve the children
and community in a way that could reduce the negative impacts of adversarial
responses on child on one side and then maximise the involvement of the
community to repairing the harm. The potential implications of informal
mechanisms to deal with youthful offender in the ground are further explained
below:
4.3.1 Child development & psychology
As stated earlier, coming into contact with the formal criminal justice system is
generally assumed to be inimical to children’s growth and psychology. To try
the children within the society in contact with their families would lessen bad
impacts and into children’s development.
The reason for the establishment of alternatives and diversions is to
deflect stigmatisation that any criminal justice system intervention generates.
One of the respondents of focus group discussion expressed his concern that
“some relatives came to meet me here and insult like- you are serving
imprisonment in jail and we would not never take you back to our home since
you are an offender for lifetime” (a juvenile offender aged 14, FGD)16. The
interview shows there is significant societal stigma and prejudice against
children living under full confinement that the society makes them feel that
they are abandoned and barren. Definitely it enslaves a child's psychological
betterment. As a solution for this, non-punitive sanctions might be placed in
Bangladesh to prioritize the reintegration and rehabilitation within the society
which would lead to develop child’s psychology in a sound manner.
4.3.2 Societal collectiveness
Large endorsement of restorative justice and norms, such as diversions or
alternatives to full confinement in the international child rights field works as
harmonious principles encouraging the notion of respect, dignity, construction
and reintegration (Lynch, 20010:169, Moore, 2008:9). Simultaneously a child
rights based juvenile justice also stands on the principles of dignity and
rehabilitation of child offenders.
16
Focus group discussion with juvenile offender at the child development centre, Tongi.
34
Establishing diversion and alternatives as a part of child rights-based
restorative justice approaches in Bangladesh can lead to societal preference and
collectiveness to dealing a child conflict with the law (UNICEF, 2009:3).
Therefore diversion and alternatives programmes, such as participation of
victim-offender in mediation, or family conferencing can contribute positively
to collective community actions towards achieving societal bond and peacebuilding
4.3.3 Cost effectiveness
UNICEF (2009:3) believes that “investment in prevention, diversion and
alternatives is more cost-effective than investment in systems which have an
over-reliance on detention”. For instance, In Zimbabwe a Community Service
Scheme was introduced for petty offenders by which the offender carries out
unpaid work of benefit to the community which saves the cost of prison
management (Stern, 1999a:233).
Informal mechanisms to try a child in conflict with the law would run at
lower cost than detention facilities. In Tongi CDC a chart displayed in the
Superintendent’s room that there are presently 192 students. Providing for
each student’s food, medical treatment and other expenses, monthly 2000
BDT(less than 25 euro) is allocated. If the children were diverted into society,
and reforms lead to a reduction in criminal justice costs, i.e. the costs for the
children in CDC but an increase in social welfare costs then this may still be
balanced out overall (UNICEF,2009:4).
4.3.4 Community involvement and child participation
Community involvement and youth participation in juvenile justice may
enhance the scope for a child’s reintegration into the society. It also allows the
children to be in a family environment which offers ample scopes subsequently
to participate in decision-making processes of the family.
The UNICEF respondent argued also that “the formal justice system in
Bangladesh is very ineffective to deal with the special needs and problems
whereas diversion or a community-lead mechanism is often a process that
further guards children’s dignity at every possible level since it engages
offenders throughout the process” (Sazal 17 2011, personal interview).This also
offers breadth of capacity to the child to contribute for the community.
Among different forms of alternatives and diversionary programmes,
community service is one that is not just an opportunity to serve the society
but equally an opportunity for the community to serve in the direct
rehabilitation of the children offenders. Bangladesh could be inspired of
Barbados, where offenders are ordered to become volunteer to the
community, e.g. to look after the gardening in any government place or to
clean up the garbage or to help to remove the pallets (Stern, 1999b:16-17).
17
Child Protection Officer, UNICEF Bangladesh, Dhaka.
35
4.3.5 Preventing crime and promoting social security
To promote national security, Bangladesh needs to concentrate on prevention
of the crime. Studies show that diversions and alternative responses become
successful if it is a cooperative effort by the community and the government as
a whole to fight crime (Stern, 1999a:231, Stern, 1999b:56) The finding also
reveals that “putting the children in conflict with the law in family and
community settings would raise their level of understanding and minimize the
tendency of reoffending” (Karim 18 2011, personal interview). The juvenile
crime prevention strategy in Bangladesh might include community and family
involvement, child participation, mobilisation of civil society that prevents
threats and loss of life and injury and strengthen national security and progress.
The emphasis on prevention of crime has been followed in many
diversion projects around the world. Since 2002 and 2003 respectively
community-based prevention and diversion programme in Philippines and
family and community group conferencing in Thailand for children in conflict
with the law were largely carried out to keep the children within the family so
that they could prevent themselves from reoffending. The report indicates the
result as, “all of the children interviewed by the assessment team reported
satisfaction with these processes, as did their parents. Although the reaction of
victims was more mixed, they generally supported the process and the idea of
‘giving children a second chance’ to correct himself that ultimately prevent
crime in society” (Loyola University Review Reports 2007 cited in UNICEF,
2011:8).
4.3.6 Ensuring better parental care
“The successful rehabilitation of youth in the system and their sustained
reintegration into the community rely upon the mutual support of juvenile
justice systems and families of the children” (Osher and Hunt, 2002:4).
Participation of parents in the juvenile justice process requires parents as a
guardian of the children delinquents in assuring their children’s rights. It is
based on the assumption that children have not yet developed the capacity to
proceed through the justice process on their own (Harvell et al. 2004:4).If
parents are involved in the treatment or counselling of their child, this would
lower child's distress and discomfort.
If the informal forums in Bangladesh empowered to sanction alternative
and diversions, accountability of the parents could be guaranteed more
effectively whilst the community/local adjudicators would be more able to
judge the level of care and protection a child receives from his/her parents
(Khan and Rahman, 2009:38).
4.4 Progressions and achievements
Though the government has been active in promotional activities to raise the
level of understanding on the children rights, it has taken very limited
initiatives to introduce restorative form of justice in the juvenile law. However
international child organizations such as SC, UNICEF, and non-governmental
18
Superintendent, Child Development Centre, Tongi
36
organizations such as Bangladesh Child Rights Forum and Children Justice
Network, have been advocating for government to take action on noncustodial sanctions so as to place the domestic law in line with the CRC and
other international instruments.
Other than the probation service and other informal mechanisms on the
ground, a project of diversion for boys in conflict with the law by UNICEF
Bangladesh in association with the Ministries of Social Welfare and of Law,
Justice and Parliamentary Affairs was piloted at the Jessore CDC in June 2009.
The project works to divert children who come into conflict with the law by
referring them to alternative services or reintegrating them with their families,
where appropriate (UNICEF, 2010:5). A case management team has been
established, including members of the Department of Social Services, the
police, the Bar Council, local government, the juvenile court and NGOs which
reviews the cases of certain children who are already in detention at the centre
and refers children to appropriate services such as legal aid and assists children
to reconnect with their family (ibid). The project considers minor offender as
appropriate for cases. Since the diversion pilot project began, 12 children have
been reintegrated with their families, and 23 other children are having their
cases reviewed (ibid)
4.5 Levels of diversions: A potential framework in juvenile
justice in Bangladesh
Most of the key informants who shared their expertise on the juvenile justice
system in Bangladesh observed that alternative sanctions along with juvenile
diversion under family/community supervision are the effective vehicles for a
rights-based juvenile justice. They also indicated that the alternative options or
diversion work best with a juvenile offender who admits his guilt. In the light
of the findings, the paper argues that alternative sanctions such as fines or
community services have to be imposed when a child offender is processed by
the court. Contrarily, juvenile diversion needs to be intervened outside the
court system in a holistic means to promote a child’s wellbeing. Both means of
treatment would allow the child offender to gain useful skills and contribute to
society building.
In Bangladesh juvenile diversion has only been experimented with by
UNICEF with child offenders who committed petty offences. The key
informants admit that government can introduce different level or phase of
diversions to experience how it persuasively divert the children in conflict with
the law from the stigma associated with deterrent value of criminal justice and
helps them to socially adjust and rehabilitate. The different phases of
diversions might include several stakeholders in the process, for example,
parents, community, juvenile courts, police, prosecutor, government attorney,
and facilitator. However, I would like to agree on the point that diversions can
be introduced and applied by the police, or even by court and other forums, to
confirm that diversions prevent the adverse effects that flow from being
processed by the formal criminal justice administration. A potential framework
of diversion in the juvenile justice system of Bangladesh could look like this.
a. Phase one diversion/police diversion:
37
It might be implemented by the police if the police find at the first stage that
the crime committed by the child is very petty in nature or he is a first time
offender. Child could be released with warning. Otherwise the diversion may
be for a very short time and the police may start their intervention by a quick
and short enquiry of the child- his family, background and so forth. The police
may order for compulsory school attendance, full time stay in the family or
place him under a governor or written or verbal apology to the
victim/survivor. These dispositions are meant to encourage good behavior in
children and support parents in guiding the child.
b. Phase two diversions:
If the crimes committed by a child are more intense/ severe than those at
previous phase, the police can send the children to the informal forums which
are entitled to try criminal cases outside the formal criminal court system.
These forums could be set up in community settings, for example, village
court. These forums could have the power to make an order for community
service without remuneration such as gardening and cleaning playground or
attending a vocation training or working in a pre-school/infant education
program. The forum could prefer FGC or reconciliation between victim and
accused at this phase if it thinks suitable.
c. Phase three diversions:
If the informal forum finds upon conviction that the child committed a
crime punishable with full time detention for short term, it could refer to
counselling or therapeutic treatment or behavioural or skill oriented programs
that produce larger effects on the children.
However in sanctioning an order of diversion, the age of the child, his
backgrounds as well as the gravity of crime have to be considered. Children
alleged to commit serious offences such as murder, rape, trafficking, and
crimes related with drugs and arms needs to be dealt through in-home
intensive supervision or house arrest by the child friendly professionals of
juvenile courts.
4.6 Obstacles and solutions
Though the local forums of dispute resolution are in place of village and
municipal level under the Village Court Act and Dispute Resolution Board Act,
they are yet to be popular as an alternative to juvenile court. Only three
respondents are aware of the informal mechanism to conflict resolution in
local level who propose that these forums could be resorted to as an alternative
to the formal juvenile courts. These forums are more or less dealing with the
petty offences under Penal Code which are not exactly in nature of juvenile
delinquency (Salam 19 2011, personal interview). With regard to resolute a
juvenile delinquency, thus they have very limited coverage of crimes and
jurisdictions. Legislative interventions are highly expected to broaden the
jurisdiction of the informal forums so that children can be tried and offered
with ample scopes to get support from community. In a country where
19
Judicial Magistrate, Metropolitan Magistrate Court, Dhaka.
38
retributive criminal justice is in the centre of criminal justice administration,
introduction of wide varieties of alternatives and diversions in the informal
resolution mechanism through legislatives actions also may pose some
challenges in the context of Bangladesh
Appropriate preparation, facilitation and monitoring for the restorative
procedure in the context of juvenile justice will be another issue for discussion
and for finding effective ways to deal with offending children (Graveson,
2009:9). It is also important to have considerable investment in publicity
campaigns among the ordinary people to explain the purpose and advantages
of non custodial measures and to make it popular through education, seminar,
rallies and debates. The training and sensitization of the professionals involved
in the justice process need to be placed in the agenda of the Bangladeshi
government that requires resources and experts.
If resources are available in abundance, alternatives and diversions could
be accelerated within a short period in the legal practice of Bangladesh
(Pathan20 2011, personal interview). It is however a common assumption that
where political commitment is strong, logistics and financial constraints are
much more easily addressed. The practice of alternatives and diversions also
require ensuring collaboration between stakeholders so that existing
opportunities are made full use of and potential outcomes brings social welfare
for the children in conflict with the law.
Last but not least, the local dispute mechanism or community
initiative/decisions to deal with a child in conflict with the law can be biased
and politically influenced. Such systems carry risks as they rest on the power of
the judicial authority embodied in the local chieftainship or community elders
(UNICEF, 2007:19). The CRC Committee (2003:8) also has expressed deep
concern at the reported inhuman and degrading punishment carried out by
order of shalish. In this regard, proper care and concern have to be taken to
ensure that the child offender will be well protected throughout the procedure
of shalish. Nongovernmental organizations and civil society can have access to
the juvenile delinquents treatment process to ensure accountability and
transparency of the community mechanism.
4.6 Summary
Bangladesh has two statutory and other non informal forums to dispose
criminal cases in local level. These forums can deal with charges against
children though with limited jurisdiction. The chapter upholds that community
supervision and child participation in the process are new to the legal practice
of Bangladesh. They might have many positive implications on the child as
well as the society.
However many juvenile crimes committed in metropolitan and divisional
area and juvenile offender are mostly tried by the criminal court. Thus to
dispose criminal issues committed by juvenile within a family-like environment,
empowerment of the local bodies with full jurisdiction to try juvenile crime
and other logistic and financial support need to be in the place .
20
Advocate, Dhaka Bar Council.
39
40
CHAPTER 5: CONCLUSION AND
RECOMMENDATIONS
5.1 Conclusion
The preamble of the CRC states that “childhood is entitled to special care and
assistance”. In accordance with the spirit of CRC, the international legal
framework provides guiding principles by which a state can protect the rights
of a child in conflict with the law. Set against this, the supreme law of
Bangladesh, i.e. the ‘Constitution of the People’s Republic of Bangladesh’ in
article 28(4), connotes that the state shall make special provision in favour of
children or for the advancement of any backward section of citizens to
advance their human rights. Besides, the Children Act along with the Children
Rules add a double obligation to protect the rights of the children in conflict
with the law.
The research asserts that lack of non-institutional dispositions suitable for
juveniles in conflict with the law is an obstruction to achieve the goals of CRC
based juvenile justice. As stated earlier, the juvenile justice system in
Bangladesh is mainly punitive and retributive in nature. The system
overestimates full confinement as an efficient technique to correct child
offender. Correspondingly non-judicial sanctions such as, care, guidance,
community service work, family conferencing are not accepted in the juvenile
law of Bangladesh. Only probation however is possible upon certain
conditions. So children in conflict with the law are mostly dealt within the
traditional criminal proceedings.
The law enforcing agencies specifically police in Bangladesh has extraordinary power to search and arrest on reason of suspicion. This has been
manifested in this paper that abuse, excessive use of force, degrading and
inhuman behavior is widespread against children during and after arrest. Most
of the children who are found guilty lead their lives in CDC without family
care and comfort. The conditions and facilities of these centres are at same
time far from acceptable. These are running with lack of adequate food,
sanitation, education facilities and other correctional responses. Again the
possibilities of stigmatization and resentment from the society may be
confronted by the juvenile offenders that oftentimes produce high risks for
self-management and community adjustment. Methods of dealing child within
a community arrangement under family care can be an appropriate clarification
against the problems prevailing in juvenile justice of Bangladesh. International
norms and guidelines in fact suggest a child rights-restorative justice system for
children in conflict with the law which is a key approach to rehabilitate the
children with his dignity. Bangladesh cannot escape from performing its
obligations under international child rights treaties.
Bangladesh has informal ad-hoc forums outside the formal criminal courts
to dispose of minor criminal issues. Communities based informal dispute
resolution services through village court, or dispute resolution board,
administer justice by way of discharging criminal issues and reconciliation
between the parties. The treatment of the children in conflict with the law
41
through the use of restorative justice approaches by these forums could
prevent children suffering negative developmental impact associated with
detention and formal criminal proceedings and contribute to social
development, conflict resolution and peace-building efforts by placing the
needs of victims/survivors more centrally in the process (UNICEF, 2009:1).
These forums howbeit have limited territorial and pecuniary jurisdiction to
deciding juvenile delinquency. Most importantly these forums are not accepted
by the Children Act 1974 to try juvenile crimes.
This is viewed in the research that these boards in the legal system could
be substituted in place of juvenile court to try juvenile offender and impose
alternative sanctions and diversionary programs. As the informal forums try
the case within a community setting, certainly children can have the
opportunity to acknowledge the wrong-doing and benefit from reintegrative
services and programs.
In recent years, government has made good efforts to advance children
rights. It enacted a NCP which reaffirms the full implementation of the rights
of child provided by UNCRC. In compliance with the CRC with a view to
securing a child rights-based justice system in Bangladesh, these efforts must
extend to establishment and recognition of alternatives and diversions in legal
practice for the children in trouble with the law. The research paper also
confirms that to provide child justice and to reintegrate child offenders in the
community, Bangladesh needs to take some effective initiatives to make the
current system more rights focused.
5.2 Suggestions
The aim of child justice is to provide special treatment of every child
accused of a crime. His reformation and reintegration in the society comes to
be placed in top agenda of the actors to provide him/her true dignity.
Placement in a restrictive prison setting with some correctional activities
cannot be the best option for rehabilitation of the children. It is better to
involve the community in reforming the children in conflict with the law as
children get the opportunities to participate in the process. In Bangladesh, with
the gradual application of the set of un-codified social norms, moral values,
cultural practices and beliefs, community based services and other diversionary
programs could be deemed as one of the most important elements to socially
rehabilitate the children in conflict with the law (Save the Children, 2004:11).
If properly staffed and funded, alternatives and diversion through these
forums that would reintegrate youthful offenders in the society, would be less
expensive, more humane and more protective of public safety than others and
most importantly would protect the human rights under CRC and other
instruments. In sum, the research suggests some urgent recommendations for
non-repressive approaches- alternative sanctions and diversion, in the law and
on the ground, so as to make the present juvenile justice system more rightsbased and child focused.
42
5.2.1 Legislative reforms
The informal mechanisms existing in the local government have to be
revisited and improved with some legal reforms. The limited application of
restorative justice forums existing in Bangladesh is desired to be extended to
the metropolitan areas and divisional headquarters.
Next in order, an amendment needs to be brought in the Children Act
1974 which would recognize non-custodial sanctions or alternatives to full
confinement. The amendment in the Children Act might confirm the informal
local forums as alternatives of juvenile courts which could have the exclusive
jurisdiction to adjudicate minor offences. The power to try serious offence
such as murder, rape, trafficking, activities relating to arms might be intervened
by the juvenile court in a home-like supervision. The amendment could
empower the court additionally to arrange police diversion or refer to child
commissioner wherever it deems fit and just.
5.2.2 Executive/administrative interventions
To fulfil the substantive commitment of the government, a National Taskforce
comprised of key national and international stakeholders, has been established
to identify priority areas, provide the principal secretary to the Prime Minister
with strategic information and coordinate action on justice for children
(UNICEF, 2010:3). This taskforce needs to work on national efforts to
emphasizing different child-friendly sanctions in the children law of
Bangladesh. Along with it, Social Services Department needs to come up with
some promising initiatives to make the present system more child-centred. For
example this department needs to prepare report time to time on the
effectiveness of rehabilitation activities and implement follow-up programs.
The report may be placed in the parliament and open for discussion for the
members.
5.2.3 Coordination between actors to initiate non-Custodial
sanctions or alternatives to deprivation of liberty
There have been calls by non-governmental organisations to introduce noncustodial dispositions and alternative sentencing in the law as well as in the
practice of Bangladesh due to the potential harms brought by retributive
criminal system. Government in this regard is advised to pay attention to
developing collaboration with other stakeholders including social and justice
sectors to arrange dialogue, seminars for professionals with a view to creating
awareness on alternative sanctions and juvenile diversion.
5.2.4 Establishment of an office of child ombudsman/child
commissioner
To protect and promote the human rights of children in conflict with the law
in Bangladesh, an independent child ombudsman or commission is a need of
time. The office could investigate complaints made by children if their rights
are violated by police or attorney or any other individual.
43
5.2.5 Formation of juvenile police force
It is true that the police have a meaningful role in dealing with children coming
in conflict with the law. It is only the police who arrests an offender and
produces him before the court. At district level, government is advised to
establish Juvenile Police Units to focus on juvenile offenders. It could report
improper behaviour and offences to the prosecutor and use diversion formally
or otherwise. The Bangladesh Police Authority can follow other country’s
successful initiative in juvenile diversion. “In Spain, police has shifted to a
‘softer’ approach to treating juvenile delinquents. Juvenile Police Unit dealing
with juvenile delinquents do not wear uniforms and receive special training on
skills that encourage juveniles to trust them and become friendly” (Valles,
2006:290-291).
5.2.6 Developing education and training program
Article 24 of ECOSOC Resolution on Juvenile Justice declares, “persons
having contact with the child offender should receive an education in human
rights, the provisions of the CRC, and other UN documents relating juvenile
justice”. According to Wernham et al.(2005:10), the important initiative is to
change the traditional understanding, attitudes to children offender and
develop skills of professionals including police, judge, prosecutor, NGOs so
that “every child offender who comes into contact with them is treated as we
would want our own child to be treated”. Staff trainings, education,
campaigning on alternative sanctions and diversion thus need to be run in
Bangladesh to create awareness on among professional involved with justice
process and the ordinary people of the society.
17482 Words
44
BIBLOGRAPHY
International Legal Instruments
Belfast Declaration on the International Association of Youth and Family Judges and
Magistrates, 2006
ECOSOC Resolution on Administration of Juvenile Justice, 1997
International Covenant on Civil and Political Rights 1966 (ICCPR)
The Beijing Rules (UN Standard Minimum Rules for the Administration of Juvenile
Justice), 1985
The Riyadh Guidelines (UN Guidelines for the Prevention of Juvenile Delinquency),
1990
UN Rules for the Protection of Juveniles Deprived of their Liberty (JDL), 1990
UN Standard Minimum Rules for Non-Custodian Measures (the Tokyo Rules), 1990
United Nations Convention against Torture, Cruel, Inhuman or Degrading Treatment
or Punishment 1984 (CAT)
United Nations Convention on the Rights of the Child 1989 (CRC)
National Legal Instruments
Code of Criminal Procedure 1898
Reformatory School Act 1897
Special Powers Act 1974
The Apprentices Act 1850
The Arms and Explosives Act 1884
The Child Act 1974 and the Child Rules 1976
The Disputes Conciliation (Municipal Areas) Board Act 2004
The Evidence Act of 1872
The Penal Code 1860
The Probation of Offenders Act 1964
The Village Court Act 2006
Case laws
Fahima Nasrin vs. Bangladesh and others (2009) 61 DLR 232
In re Gault (1967) 387 U.S. 1
State vs. Roushan Mondal alias Hashem (2007) 59 DLR 72
45
Books/ Articles/ Reports/ Web Resources
Ahmad, M.M. (2009) 'Alternatives to Imprisonment for the Juveniles: A Case Study of
Pakistan', Pakistan Journal of Criminology 1(3):47-72.
Ahmed M.B. and M.R. Islam (2010) 'Treatment of Juvenile Offender: Bangladesh
Perspective', Bangladesh Research Publication Journal 4(3), 274-285.
Ali, M.I. (2010) 'Towards Justice Delivery System for Children in Bangladesh: A
Guide and Case-law on Children in Conflict with Law'. Dhaka: UNICEF
Bangladesh.
Arts K. (2006) ‘General Introduction: A Child rights-based Approach to International
Criminal Accountability’ in Arts K. and V. Popovski(eds.) International Criminal
Accountability and the Rights of Children, United Nations University and Hague
Academic Coalition, pp. 3-17 The Hague: Hague Academic Press.
Bazemore, G. and M. Schiff (2005) Juvenile Justice Reform and Restorative Justice: Building
Theory and Policy from Practice. Portland: Willian Publishing.
Braithwaite, J. (2003) 'Restorative Justice and Responsive Regulation', The Australian
and New Zealand Journal of Criminology 36(1): 109-126.
Bueren, G.V. (1998) ‘The International Law on the Rights of the Child’, Dordrecht: Martinus
Nijhoff Publishers.
CRC Committee (2009) 'Concluding Observations on Third/Fourth Report',
CRC/C/BGD/CO/4, 12 June 2009, accessed 25 April 2011 <
http://www2.ohchr.org/english/bodies/crc/docs/co/CRC-C-BGD-CO-4.pdf>
CRC Committee (2008) 'Third and fourth periodic reports of Bangladesh submitted to
the Convention on the Rights of the Child', CRC/C/BGD/4, 23 October 2008,
accessed 1 March 2011<
http://www2.ohchr.org/english/bodies/crc/docs/co/CRC.C.BGD.CO.4_en.pd
f>
CRC Committee (2007) 'General Comment 10, Children’s rights in Juvenile Justice',
CRC/C/GC/10, 25 April 2007, accessed 12 July 2011 <
http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf>
CRC Committee (2003) 'Consideration of Report Submitted by State Parties under
Article 44 of the Convention, Concluding observations: Bangladesh',
CRC/C/15/Add.221, 27 October 2003, accessed 12 July 2011< http://daccessddsny.un.org/doc/UNDOC/GEN/G03/446/27/PDF/G0344627.pdf?OpenEl
ement>
DCI (2010) 'Juvenile Justice', accessed 11 December 2010 <
http://www.defenceforchildren.org/juvenile-justice.html>
Dialogue on Youth and Justice (2010) 'History of Juvenile Justice', accessed 25 April
2011 <
http://www.americanbar.org/content/dam/aba/migrated/publiced/features/D
YJpart1.authcheckdam.pdf>
Ghimire, R. (2008) 'The Juvenile Justice System in Nepal: An Agenda for Reform',
MA thesis. The Hague: International Institute of Social Studies, Erasmus
University Rotterdam.
Gromet, D.M. and J.M. Darley (2006) 'Restoration and Retribution: How Including
Retributive Components Affects the Acceptability of Restorative Justice
Procedures', Social Justice Research 19(4): 395-432.
Golub S,(2003) 'Non-state Justice Systems in Bangladesh and the Philippines', Paper
prepared for the United Kingdom Department for International Development,
Boalt Hall School of Law University of California at Berkeley.
46
Graveson, C. (2009) ‘Restorative Juvenile Justice: The Challenges, the Rewards’,
Youth Aid, New Zealand Police, paper for the First World Congress on
Restorative Juvenile Justice, Lima, Peru(4-7 November 2009)
Hammarberg, T. (2008) 'A Juvenile Justice Approach Built on Human Rights
Principles', Youth Justice 8(3): 193-196.
Harvell, S.,B. Rodas, L. Hendey(2008) 'Parental Involvement in Juvenile Justice:
Prospects and Possibilities', accessed 12 October 2011
<http://www.oklaosf.state.ok.us/~oja/SAG%20Website/MacFound/Parental_
Involvement_in_Juvenile_Justice.pdf>
Hutchison.P. and H. Wray(2003) 'What is Restorative Justice?', accessed at 22
September 2011<http://gbgm-umc.org/nwo/99ja/what.html>
Interagency Panel on Juvenile Justice(2011) 'Fact Sheet 4: Ensuring Appropriate Age
Limits of Criminal Responsibility', accessed 12 June 2011
<http://www.juvenilejusticepanel.org/resource/items/D/C/DCI_GC10FactSh
eet4_EnsureAppropriateAgeofCR08_EN.pdf>
Jantzi, V. (2004) 'What is the Role of the State in Restorative Justice Program' in Zehr
H. and B. Toews (eds) Critical Issues in Restorative Justice, pp. 189-202. New York:
Criminal Justice Press
Khan, S.Z.(2000) 'The Issue of Safe Custody of Children in Bangladesh', Save The
Children UK, Dhaka: Bangladesh Programme.
Khan, B.U. and M.M. Rahman (2009) 'Local Government Level Restorative
Adjudication: An Alternative Model of Justice for Children in Bangladesh',
Commonwealth Journal of Local Governance (4):26-45.
Khan, B.U. and M.M. Rahman (2008) 'Protection of Children in Conflict with the Law
in Bangladesh', Save the Children UK, Dhaka: Bangladesh Programme.
Latimer, J., C. Dowden and D. Muise (2005) 'The Effectiveness of Restorative Justice
Practices: A Meta-Analysis', The Prison Journal 85(2): 127-144.
Leung, M. (1999) 'The Origins of Restorative Justice', accessed 11 November 2011,
<http://cfcj-fcjc.org/clearinghouse/drpapers/leung.htm>
Lynch, N. (2010) 'Restorative Justice through a Children's Rights Lens', The
International Journal of Children’s Rights 18 (2): 161-183.
Malik, S. (2004) 'The Children Act 1974: A Critical Commentary', Save the Children
UK, Dhaka: Bangladesh Programme.
Marks, S. and A. Clapham (2004) International Human Rights Lexicon. Oxford: Oxford
University Press.
McNamara, S. (2009) 'Childhood behind Locked Doors', UNICEF Bangladesh,
accessed 12 October,
2011<http://www.unicef.org/bangladesh/media_6321.htm>
Ministry of Women and Child Affairs (2011) 'Jatiyo Sishu Niti(National Child Policy)',
People’s Republic of Bangladesh, accessed 2 October,
2011<http://www.mowca.gov.bd/wp-content/uploads/NCP2011.pdf>
Moore , S.A.(2008) , 'Rights-Based Restorative Practice: Evaluation Toolkit', accessed
2 March,2011<http://www1.umn.edu/humanrts/links/RBRJ%20toolkit.pdf>
Morris, A. and G. Maxwell (2001) Restorative Justice for Juveniles: Conferencing, Mediation
and Circles. Oxford: Hart Publishing.
Nwankwo, K.S. (2008) 'Community Service Order as an Alternative to Imprisonment
in Lagos State Nigeria', MA thesis. The Hague: International Institute of Social
Studies, Erasmus University Rotterdam.
47
Odhikar(2000) 'Women and Children in Disadvantaged Situation', accessed 2 March
2011<http://www.odhikar.org/pubs/pdf/women_and_children_in_disadvantag
ed_situations.pdf>
Osher, T. and Hunt, P. (2002) Involving Families of Youth who are in Contact with
the Juvenile Justice System', Research and Program Brief. Washington, DC:
National Centre for Mental Health and Juvenile Justice.
Rahman,M.(2003) 'Tracing the Missing Cord: A Study on the Children Act 1974', Save
the Children-UK, Dhaka: Bangladesh Programme.
Report of the independent expert for the United Nations Study on Violence against
Children(2006) United Nations, General Assembly, sixty-first session, August
2006, A/61/299, accessed 22 July 2011
<http://www.unicef.org/violencestudy/reports/SG_violencestudy_en.pdf>
Roberts, C.H. (2000) 'Juvenile Delinquency: Cause and Effect Yale-New Haven
Teachers Institute', accessed 11 September 2011
<http://www.yale.edu/ynhti/curriculum/units/2000/2/00.02.05.x.html>
Save the Children (2004) 'My Childhood in Chains: Juvenile Justice and Violence
against Children in Bangladesh', Save the Children, Dhaka: Bangladesh
Programme.
Save the Children (2002) 'Child Rights Programming: How to Apply Rights-Based
Approaches to Programming – A Handbook for Internationals Save the Children
Alliance Members', London: Save the Children.
Sherman, L.W., H. Strang, C. Angel, D. Woods, G.C. Barnes and S. Bennett (2005)
'Effects of Face-to-Face Restorative Justice on Victims of Crime in Four
Randomized, Controlled Trials', Journal of Experimental Criminology 1(3): 367-395.
Smith, R. (2011) 'Developing Restorative Practice: Contemporary Lessons from an
English Juvenile Diversion Project of the 1980s', Contemporary Justice Review 14(4):
425-438.
Stern, V. (1999a) 'Alternatives to Prison in Developing Countries: Some Lessons from
Africa', Punishment & Society 1(2): 231-241.
Stern, V. (1999b) 'Alternatives to Prison in Developing Countries', International
Centre for Prison Studies, London: Kings College London.
Study Circle Bangladesh(2003) 'Guide on Alternative Dispute Resolution', accessed 15
October2011< www.studycirclebangladesh.info/.../2007041164>
The Daily Star (2011) 'PM emphasises child-friendly environment', 12 October,
accessed 15 October 2011< http://www.thedailystar.net/newDesign/newsdetails.php?nid=205044>
The Daily Star (2005) 'Jessore Rape Case:6-year-old boy gets bail', 10 March, accessed
15 October 2011
<http://www.thedailystar.net/2005/03/10/d50310012319.htm>
UNICEF (2011) 'Toolkit-Diversion-Alternatives to Deprivation of Liberty', accessed
5 September 2011< http://www.docstoc.com/docs/82787161/UNICEFToolkit-%E2%80%93-Diversion-_-Alternatives-to-Deprivation-of-Liberty>
UNICEF (2010) 'Justice for Children in Bangladesh', accessed 25 February 2011
<www.unicef.org/bangladesh/Juvenile_Justice(2).pdf >
UNICEF (2009) 'Toolkit on Diversion and Alternatives to Detention', accessed 25
February 2011 <http://www.unicef.org/tdad/index_55654.html>
UNICEF (2007) 'Implementation Handbook on the Convention on the Rights of
Child', accessed 18 August 2011
<http://www.unicef.org/publications/files/Implementation_Handbook_for_th
e_Convention_on_the_Rights_of_the_Child_Part_1_of_3.pdf>
48
UNICEF (2006) 'Juvenile Justice in South Asia: Improving Protection for Children in
Conflict with the Law', Kathmandu: Regional Office for South Asia.
Valles, L. (2006) 'The Role of the Police within the Spanish Juvenile Justice System:
The Results of Legal Reforms in Catalonia' in Jensen, E. L., & Jepsen, J. (eds)
Juvenile Law Violators, Human Rights, and the Development of New Juvenile Justice
Systems.pp.283-292. Oxford: Hart.
Ward, T. and R. Langlands (2009) 'Repairing the Rupture: Restorative Justice and the
Rehabilitation of Offenders', Aggression and Violent Behaviour 14(3): 205-214.
Wenzel, et. al. (2008) 'Retributive and Restorative Justice', Law and Human Behaviour
32(5): 375-389.
Wernham, M., S. Geerinckx, and E. Jackson (2005) 'Police Training On Child Rights
and Protection: Lessons Learned and Manual', London: Consortium for Street
Children.
Wernham, M. (2004) 'An Outside Chance: Street Children and Juvenile Justice –an
International Perspective', London: Consortium for Street Children.
Zernova, M. (2007) Restorative Justice: Ideals and Realities. London: Ashgate Publishing
Group.
49
APPENDIXES
Appendix 1: Plan of activities
Activities
June
July
Augus
t
Submission
of
final
research
paper
Gathering data in
field
Analysing
and
reporting the data
Working on the
findings
Presenting the first
draft
Rewriting
conceptual
and
legal framework
Writing
the
conclusion
Final editing
Final submission
of the research
paper
50
Septembe Octob
r
er
Nove
mber
Appendix 2: The Children Act, 1974 (ACT NO.
XXXIX of 1974)(The provisions related with
youthful offender)
Preamble: An Act to consolidate and amend the law relating to the custody,
protection and treatment of children and trial and punishment of youthful
offenders.
WHEREAS it is expedient to consolidate and amend the law relating to the
custody, protection and treatment of children and trial and punishment of
youthful offenders.
Definitions
2. In this Act, unless there is anything repugnant in the subject or context,
(f) “child” means a person under the age of sixteen years, and when used with
reference to a child sent to a certified institute or approved home or
committed by a Court to the custody of a relative or other fit person means
that child during the whole period of his detention notwithstanding that he
may have attained the age of sixteen years during that period;
Juvenile Courts
3. Notwithstanding anything contained in the Code, the Government may, by
notification in the official Gazette, establish one or more Juvenile Courts for
any local area.
Courts empowered to exercise powers of Juvenile Court
4. The powers conferred on a Juvenile Court by this Act shall also be
exercisable by(a) the High Court Division,
(b) a Court of Session,
(c) a Court of an Additional Sessions Judge and of an Assistant Sessions Judge,
(d) a Sub-Divisional Magistrate, and
(e) a Magistrate of the first class,
whether trying any case originally or on appeal or in revision.
Powers of Juvenile Courts, etc
51
5. (1) When a Juvenile Court has been established for any local area, such
Court shall try all cases in which a child is charged with the commission of an
offence and shall deal with and dispose of all other proceedings under this Act,
but shall not have power to try any case in which an adult is charged with any
offence mentioned in Part VI of this Act.
(2) When a Juvenile Court has not been established for any local area, no Court
other than a Court empowered under section 4 shall have power to try any case
in which a child is charged with the commission of an offence or to deal with
or dispose of any other proceeding under this Act.
(3) When it appears to a Juvenile Court or a Court empowered under section 4,
such Court being subordinate to the Court of Session, that the offence with
which a child is charged is triable exclusively by the Court of Session, it shall
immediately transfer the case to the Court of Session for trial in accordance
with the procedure laid down in this Act.
No joint trial of child and adult
6. (1) Notwithstanding anything contained in section 239 of the Code or any
other law for the time being in force, no child shall be charged with, or tried
for, any offence together with an adult.
(2) If a child is accused of an offence for which under section 239 of the Code
or any other law for the time being in force such child but for the provisions of
sub-section (1) could have been tried together with an adult, the Court taking
cognizance of the offence shall direct separate trials of the child and the adult.
Sittings, etc of Juvenile Courts
7. (1) A Juvenile Court shall hold its sittings at such places, on such days and in
such manner as may be prescribed.
(2) In the trial of a case in which a child is charged with an offence a Court
shall, 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.
Adult to be committed to sessions in a case to be committed to sessions
8. (1) When a child is accused along with an adult of having committed an
offence and it appears to the Court taking cognizance of the offence that the
case is a fit one for committal to the Court of Session, such Court shall, after
separating the case in respect of the child from that in respect of the adult,
direct that the adult alone be committed to the Court of Session for trial.
(2) The case in respect of the child shall then be transferred to a Juvenile Court
if there is one or to a Court empowered under section 4, if there is no Juvenile
52
Court for the local area, and the Court taking cognizance of the offence is not
so empowered:
Provided that the case in respect of the child shall be transferred to the Court
of Session under section 5 (3) if it is exclusively triable by the Court of Session
in accordance with the Second Schedule of the Code.
Presence of persons in Juvenile Courts
9. Save as provided in this Act, no person shall be present at any sitting of a
Juvenile Court except(a) the members and officers of the Court;
(b) the parties to the case or proceeding before the Court and other persons
directly concerned in the case or proceeding including the police officers;
(c) parents or guardians of the child; and
(d) such other persons as the Court specially authorises to be present.
Withdrawal of persons from Courts
10. If at any stage during the hearing of a case or proceeding, the Court
considers it expedient in the interest of the child to direct any person, including
the parent, guardian or the spouse of the child, or the child himself to
withdraw, the Court may give such direction and thereupon such person shall
withdraw.
Dispensing with attendance of child
11. If at any stage during the hearing of a case or proceeding, the Court is
satisfied that the attendance of a child is not essential for the purpose of the
hearing of the case or proceeding, the Court may dispense with his attendance
and proceed with the hearing of the case or of the proceeding in the absence
of the child.
Withdrawal of persons from Court when child is examined as witness
12. If at any stage during the hearing of a case or proceeding in relation to an
offence against, or any conduct contrary to, decency or morality, a child is
summoned as a witness, the Court hearing the case or proceeding may direct
such persons as it thinks fit, not being parties to the case or proceeding, their
legal advisers and the officers concerned with the case or proceeding, to
withdraw and thereupon such persons shall withdraw.
Attendance at Court of parent of a child charged with offence, etc
53
13. (1) Where a child brought before a Court under this Act has a parent or
guardian, such parent or guardian may in any case, and shall, if he can be found
and if he resides within a reasonable distance, be required to attend the Court
before which any proceeding is held under this Act, unless the Court is
satisfied that it would be unreasonable to require his attendance.
(2) Where the child is arrested, the officer in charge of the police-station to
which he is brought shall forthwith inform the parent or guardian, if he can be
found, of such arrest, and shall also cause him to be directed to attend the
Court before which the child will appear and shall specify the date of such
appearance.
(3) The parent or guardian whose attendance shall be required under this
section shall be the parent or guardian having the actual charge of, or control
over, the child:
Provided that if such parent or guardian is not the father, the attendance of the
father may also be required.
(4) The attendance of the parent of a child shall not be required under this
section in any case where the child was, before the institution of the
proceedings, removed from the custody or charge of his parent by an order of
a Court.
(5) Nothing in this section shall be deemed to require the attendance of the
mother or female guardian of a child, but any such mother or female guardian
may appear before the Court by an advocate or agent.
Factors to be taken into consideration in passing orders by Courts
15. For the purpose of any order which a Court has to pass under this Act, the
Court shall have regard to the following factors:(a)
the character and age of the child;
(b)
the circumstances in which the child is living;
(c)
the reports made by the Probation Officer; and
(d)
such other matters as may, in the opinion of the Court, require to be
taken into consideration in the interest of the child:
Provided that where a child is found to have committed an offence, the above
factors shall be taken into consideration after the Court has recorded a finding
against him to that effect.
Reports of Probation Officers and other reports to be treated
confidential
54
16. The report of the Probation Officer or any other report considered by the
Court under section 15 shall be treated as confidential:
Provided that if such report relates to the character, health or conduct of, or
the circumstances in which, the child or the parent or guardian of such child is
living, the Court may, if it thinks expedient, communicate the substance
thereof to the child, or the parent or guardian concerned and may give the
child or the parent or guardian of such child an opportunity to produce
evidence as may be relevant to the matters stated in the report.
Prohibition on publication of report disclosing identity, etc, of child
involved in cases
17. No report in any newspaper, magazine or news-sheet nor any news giving
agency shall disclose any particular of any case or proceeding in any Court
under this Act in which a child is involved and which leads directly or
indirectly to the identification of such child, nor shall any picture of such child
be published:
Provided that, for reasons to be recorded in writing, the Court trying the case
or holding the proceeding may permit the disclosure of any such report, if, in
its opinion, such disclosure is in the interest of child welfare and is not likely to
affect adversely the interest of the child concerned.
Establishment and certification of Institutes
19. (1) The Government may establish and maintain training institute for the
reception of children and youthful offenders.
(2) The Government may certify that any training institute not established
under sub-section (1) or any industrial school or other educational institution is
fit for the reception of children or youthful offenders.
Remand Homes
20. The Government may establish and maintain remand homes for the
purposes of detention, diagnosis and classification of children committed to
custody by any Court or Police.
Conditions for certification or recognition of institutes, etc
21. The Government may prescribe conditions subject to which any training
institute, industrial school, educational institution or approved home shall be
certified or recognised, as the case may be, for the purposes of this Act.
Management of certified institutes
22. (1) For the control and management of every training institute established
under section 19 (1), a superintendent and a committee of visitors shall be
55
appointed by the Government, and such superintendent and committee shall
be deemed to be managers of the institute for the purposes of this Act.
(2) Every institute, school or institution certified under section 19 (2) shall be
under the management of its governing body, the members of which shall be
deemed to be the managers of the institute, school or institution for the
purposes of this Act.
Consultation with managers
23. The managers of a certified institute shall be consulted by the Court before
any child is committed to it.
Medical inspection of certified institutes and approved homes
24. Any registered medical practitioner empowered in this behalf by the
Government may visit any certified institute or approved home at any time
with or without notice to its managers or other persons in charge thereof in
order to report to the Chief Inspector on the health of the inmates and the
sanitary condition of the certified institute or approved home.
Power of the Government to withdraw certificate
25. The Government, if dissatisfied with the management of a certified
institute, may at any time by notice served on the managers of the institute
declare that the certificate of the institute is withdrawn as from a date specified
in the notice and on such date the withdrawal of the certificate shall take effect
and the institute shall cease to be certified institute:
Provided that before the issue of such notice a reasonable opportunity shall be
given to the managers of the certified institute to show cause why the
certificate shall not be withdrawn.
Resignation of certificate by managers
26. The managers of a certified institute may, on giving six months’ notice in
writing to the Government through the Chief Inspector of their intention so to
do, resign the certificate of the institute and accordingly at the expiration of six
months from the date of notice, unless before that time the notice is
withdrawn, the resignation of the certificate shall take effect and the institute
shall cease to be a certified institute.
Effect of withdrawal or resignation of certificate
27. A child or youthful offender shall not be received into a certified institute
under this Act after the date of receipt by the managers of the institute of a
notice of withdrawal of the certificate or after the date of a notice of
resignation of the certificate:
56
Provided that the obligation of the managers to teach, train, lodge, cloth and
feed any child or youthful offender detained in the institute at the respective
dates aforesaid shall, except so far as the Government otherwise directs,
continue until the withdrawal or resignation of the certificate takes effect.
YOUTHFUL OFFENDERS
Bail of child arrested
48. Where a person apparently under the age of sixteen years is arrested on a
charge of a non-bailable offence and cannot be brought forthwith before a
Court, the officer-in-charge of the police-station to which such person is
brought may release him on bail, if sufficient security is forthcoming, but shall
not do so where the release of the person shall bring him into association with
any reputed criminal or expose him to moral danger or where his release would
defeat the ends of justice.
Custody of child not enlarged on bail
49. (1) Where a person apparently under the age of sixteen years having been
arrested is not released under section 48, the officer-in-charge of the policestation shall cause him to be detained in a remand home or a place of safety
until he can be brought before a Court.
(2) A Court, on remanding for trial a child who is not released on bail, shall
order him to be detained in a remand home or a place of safety.
Submission of information to Probation Officer by police after arrest
50. Immediately after the arrest of a child, it shall be the duty of the police
officer, or any other person affecting the arrest, to inform the Probation
Officer of such arrest in order to enable the said Probation Officer to proceed
forthwith in obtaining information regarding his antecedents and family history
and other material circumstances likely to assist the Court in making its order.
Restrictions on punishment of child
51. (1) Notwithstanding anything to the contrary contained in any law, no child
shall be sentenced to death, transportation or imprisonment:
Provided that when a child is found to have committed an offence of so
serious a nature that the Court is of opinion that no punishment, which under
the provisions of this Act it is authorised to inflict, is sufficient or when 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 and that none of the other
methods in which the case may legally be dealt with is suitable, the Court may
sentence the child to imprisonment or order him to be detained in such place
and on such conditions as it thinks fit:
57
Provided further that no period of detention so ordered shall exceed the
maximum period of punishment to which the child could have been sentenced
for the offence committed:
Provided further that at any time during the period of such detention the Court
may, if it thinks fit, direct that in lieu of such detention the youthful offender
be kept in a certified institute until he has attained the age of eighteen years.
(2) A youthful offender sentenced to imprisonment shall not be allowed to
associate with adult prisoners.
Commitment of child to certified institute
52. Where a child is convicted of an offence punishable with death,
transportation or imprisonment, the Court may, if it considers expedient so to
deal with the child, order him to be committed to a certified institute for
detention for a period which shall be not less than two and not more than ten
years, but not in any case extending beyond the time when the child will attain
the age of eighteen years.
Power to discharge youthful offenders or to commit him to suitable
custody
53. (1) A Court may, if it thinks fit, instead of directing any youthful offender
to be detained in a certified institute under section 52, order him to be(a) discharged after due admonition, or
(b) released on probation of good conduct and committed to the care of his
parent or guardian or other adult relative or other fit person on such parent,
guardian, relative or person executing a bond, with or without sureties, as the
Court may require, to be responsible for the good behaviour of the youthful
offender for any period not exceeding three years, and the Court may also
order that the youthful offender be placed under the supervision of a
Probation Officer.
(2) If it appears to the Court on receiving a report from the Probation Officer
or otherwise that the youthful offender has not been of good behaviour during
the period of his probation, it may, after making such inquiry as it deems fit,
order the youthful offender to be detained in a certified institute for the
unexpired of probation.
Power to order parent to pay fine, etc
54. (1) Where a child is convicted of an offence punishable with fine, the Court
shall order that the fine be paid by the parent or guardian of the child, unless
the Court is satisfied that the parent or guardian cannot be found or that he
has not conduced to the commission of the offence by neglecting to exercise
due care of the child.
58
(2) Where a parent or guardian is directed to pay a fine under sub-section (1),
the amount may be recovered in accordance with the provision of the Code.
59
Appendix 3: The Village Court Act 2004 and
The Disputes Conciliation (Municipal Areas)
Board Act 2004: Schedule 1
The Village Court and Dispute Conciliation Board have the jurisdiction to try
the cases under Bangladesh Penal Code 1860:
1. Any crime committed under section 160 (Punishment for committing
affray), section 323 (Punishment for voluntarily causing hurt),section 334
(Voluntarily causing hurt on provocation), section 341 (Punishment for
wrongful restraint, section 342 Punishment for wrongful confinement), section
352 (Punishment for assault or criminal force otherwise than on grave
provocation), section 358 (Assault or criminal force on grave provocation),
section 426 (Punishment for mischief), section 447 (Punishment for criminal
trespass),section 504 (Intentional insult with intent to provoke breach of the
peace), section 506(Punishment for criminal intimidation), section 508 (Act
caused by inducing person to believe that he will be rendered an object of the
Divine displeasure),section 509 (Word, gesture or act intended to insult the
modesty of a woman),section 510( Misconduct in public by a drunken person)
2. Punishment for theft of domestic animal under section 379,380 and 381
3. Punishment for theft except domestic animal(where the property value
does not exceed 25000DT) under section 379, 380, 381
4. Any crime committing under Section 403(Dishonestly misappropriation
of property), Section 406 (Punishment for criminal breach of trust), Section
417(Punishment for cheating), Section 420 (Cheating and dishonestly inducing
deliver of property) provided that the value of the property does not exceed
25000BDT
5. Mischief committed under section 427, section 428 and section 429
provided that the value of the property/domestic animal does not exceed
25000BDT
6. Section 24, 26, 26 under the Cattle-Trespass Act 1871
60
Appendix 4: Questionnaire for semi structured
interviews with the key informants
Name: ………………………………... (optional)
Date ………………………………… / 2011
Which Sector do you belong? …… (Magistrate/ Judge/Lawyer/Police/NGO/
Civil Society)
Organization…………………………..
1. Could you please explain briefly the present existing law in regard to
Juvenile justice in Bangladesh?
2. Do you think the domestic law is compatible with the international
standard?
3. What are the gaps/inconsistencies you notice in the present legislation?
4. Do you think the law is properly practiced in the ground? if not, what
are the reasons behind it?
5. Are the personnel dealing with juvenile offender, such as police, judge,
and probation officer adequately trained? If yes, how and where are
they trained?
6. Are you aware of custodial violence with children which take place in
dealing with a child offender by the police or other concerned
authority?
7. Do you think the types of punishment for the child offender existing in
Bangladesh are properly working to correct them?
8. In your opinion, what is the present situation/condition of child
detention centre in Bangladesh?
9. To introduce rights focused juvenile justice system, which concerns do
you think need to be addressed most?
10. Can alternative sentence or diversion be realistic methods to mitigate
the problem?
11. If yes how do you suggest the stakeholders to initiate it in the present
legal practice?
12. What obstacles could the government experience in aiding the new
alternatives and diversions in Bangladesh juvenile justice system?
61
13. Do you have other comments you would like to share?
Thank You for your response.
62
Appendix 5: Questionnaire for focus group
discussion with the children in conflict with the
law
Briefing:
The information gathered from the discussion will be kept confidential.
The group discussion would be for the purpose of MA thesis and the
respondents would be informed of the aims, purposes and consequence of this
questionnaire. The moderator would ask their consent to participate in the
research process
1. Could you explain the incident how and why you were arrested?
2. Where did the police keep you after arrest?
3. Were you kept with adult criminals?
4. How did the police treat you during and after the arrest? Did they use
handcuffs?
5. Did you experience any torture or humiliation by them?
6. Were you assisted by lawyer during the trial?
7. Who heard your case and did you feel the judge/magistrate is sensitive
to you?
8. How often does your family visit you?
9. How do the officials of child development centre treat you?
10. Do you find any trouble living in the child development centre?
11. Do you prefer to live in a family to correctional institute?
63
12. What changes do you think need to come in present juvenile justice
system?
13. What do you opine if the community involvement and other
alternatives are introduced in the present system?
64
Appendix 6: Name and designation of the key
informants
S
1
Name
Md. Abdul Goffur
Designation
District and Sessions Judge
2
Dr. Mizanur Rahman
3
M. A. Salam
4.
M M Aminul Islam Sazal
5.
A S M Sayem Ali Pathan
Chairman, National Human
Rights Commission
Judicial Magistrate, Dhaka
Metropolitan Court
Child Protection Specialist
UNICEF Bangladesh
Advocate, Dhaka Bar Council
6.
Md. Kafil Uddin
7.
Md. Abu Baker
8.
S M Anworul Karim,
Director, Bangladesh Child
Rights Forum
Deputy Director, Department
of Social Services
Superintendent, Child
Development Centre, Tongi,
Dhaka
65
Appendix 7: Summary report on the semistructured interviews with the key informants
Md.
Abdul
Goffur,
District
and
Sessions
Judge, Judiciary of Peoples Republic of Bangladesh (21 August 2011)
No separate juvenile justice law still exists in Bangladesh. The Children
Act 1974 is not fully compatible with international human rights law. The
definition of a child, age of criminal responsibility needs to be amended. In
practice the correction centers for the juvenile offenders are not providing
proper nutrition, training to the children offenders because of lack of
infrastructure. There is a lack of knowledge about the concept of juvenile
justice and the rights of children who come into conflict with the law by
relevant government officials and professionals working in the justice system,
such as police, judiciary, social welfare officers and probation officers.
For resolving the problems I would suggest a comprehensive legal
enactment dealing with children delinquents. Proper training in order to build
active human resources, such as judges, advocates working on providing true
justice to the children must be addressed by the government. Community
mediation or diversion mechanism must be introduced in law and in practice in
Bangladesh. But this goes with the minor offender rather the offender who
commits murder or forgery. Though resource constraint is one of the crucial
problem in context of Bangladesh, I believe if the government has political
commitment, there is nothing impossible to do.
Most of the child who commit crime come from poor and needy family
and don’t know how the crime would affect their life. That’s why Bangladesh
government must be so active in preventing crime by providing fair
distribution of resources and all the basic needs throughout the country
Dr. Mizanur Rahman, Chairman, National human Rights
Commission (1 August 2011)
Before comparing with international standard, we need to take into
account the existing realities of the society and the financial capacity of the
state. If we go by the letters of international law, many of the provisions in
Bangladesh are in existence in the law of Bangladesh. But in reality it is very
unacceptable and violative with the minimum international standard which the
government needs to comply with. The reasons behind this non compliance
with the international standard may be physical factors, such as lack of physical
resources including human resources, or physiological factors, i.e. people
including the responsible professionals dealing with juvenile justice considers a
deviant child in criminal system as equal as an adult accused.
That’s why it is very necessary to ensure a child friendly juvenile justice
where it might be a guiding principle- ‘Look everything through the eyes of a
child’. But in practice I find a very grim picture when I talked once a juvenile
who was kept in the correction centre because he was not very attentive in
attending school and doing regular activities in daily life. He told me that I only
66
know how to make sharp weapon from iron grill and my parents will have
experience this after my release. The programs of correction centre renamed as
development centre must be reformed
A child must be born, brought up, nourished and nurtured into a family.
So there should a priority of diversions and alternatives to confinement in the
juvenile justice administration. Many countries of the world already have been
successful in community based programs. In one hand we might introduce
some pilot projects how it could work better and on the other hand, these
children could be adopted by the partners who don’t have any child.
Political will of the states with mobilization of the resources are in the
centre of initiating alternatives and diversion in the present legal system.
Attempts by the NGOs and civil society must be made to create awareness and
education on alternatives and diversions among the community
M. A. Salam, Judicial Magistrate, Court 29, Dhaka Metropolitan
Court (8 July 2011)
The present system in regard to juvenile justice is not satisfactory. There
are several laws existing in our country, but in practice these laws are rarely
implemented. The personnel who deal with juvenile offenders, they are not
properly trained and aware of the international and national law. In most cases
they are kept in police custody with adults. On committing a crime, a juvenile
offender is arrested and produced before the magistrate. The investigation
officer in the police station tries to mislead the age of the juvenile offender in
practice. When a juvenile offender is produced before the magistrate, in most
case we find that a juvenile offender who seems to be under 18, but the
documents, like FIR or Charge sheet shows that he/she is an adult, i.e. more
than 18 years of age. These complicacies are mostly done by the police officers.
Few magistrates use their discretion sine we are also burdened with multiplicity
of cases, because we have to work on papers. Moreover, there is no separate
custody system in police station, and the police seem to be so reluctant to
follow separate treatment for the juveniles. The child offenders are seen to be
dealt by ordinary criminal court where they are kept in a single dock with the
adult criminal. Though they might be handcuffed during arrest, I didn’t find
anyone to be handcuffed in the dock when the children appear before the
court.
The reason of such problems however is that these personnel don’t get
special training on juvenile law. The mindset of the people contributes to
formulate lots of barriers for a proper and child friendly juvenile justice system.
People believe the crimes committed by the juvenile offender might shake the
law and order situation in the country because they may turn into big criminals.
Additionally some changes must be brought in the prevailing system. We are
happy that this government has adopted a national child policy where the age
of child has been considered at 18 which are in compliance with CRC.
In regard to community involvement, I personally urge to make the village
court and Conciliation Board effective where the local government
representatives chair a session and mediate criminal offences between the
victim and accused in presence of their representatives. They can offer
diversion analysing children's case. Imprisonment or full confinement would
67
not work to correct the children in a home-like environment. We can think to
keep the children away from the formal criminal justice system in case of
minor offences, these forums might come forward. But in serious crime, we
can seek to get assistance under magistrate court. I want to emphasis on
increasing government’s capacity, like when a child is arrested in a rural area
and the court orders for a detention under a correction system, it’s not easily
possible for the authority to send them in a child development centre which is
near to capital city due to unsatisfactory transport system.
In conformity with child friendly juvenile justice system, we can proceed
to society involvement which can enhance community’s consciousness to
protect child rights. The government must reform the present law to insert
community sanctions or alternative sentencing, otherwise it cannot come in
practice. The government must offer ample scope of training to the mediator
or community leader to practice diversionary programs in practice. It must also
think to make supervisory authority strong to take care of the children so that
he/she cannot reoffend after getting released in the society.
A child is full of possibilities, so I feel everyone must be very sensitive to
deal with a juvenile coming in conflict with the law.
M M Aminul Islam Sazal, Child Protection Specialist, UNICEF
Bangladesh (12 July 2011)
The criminal justice system in Bangladesh basically centered on retributive
punishment. There is only one statute ‘Probation of Offenders Act’ which
provides only one alternative sentencing, probation, both for adult and juvenile
offender. Unfortunately the main juvenile justice law in Bangladesh ‘The
Children Act 1974’ doesn’t contain any provision for alternative sanctions and
juvenile diversion. CRC holds the state parties to follow alternatives as
deprivation to liberty beyond a formal criminal justice administration.
Additionally the definition of child is not compatible with that of CRC.
Trial and detention under a formal criminal justice system hinder the
physical and psychological development of a child delinquent. The formal
system doesn’t offer any space for correction which ultimate compel the
offender to re-offend. As well the government has to spend a big portion of its
budget for dealing the child offender within the traditional criminal justice
system. That’s why UNICEF has started to address those children who were in
prison with their mother since 2000/2001. Concentrating on the rationale of
restorative justice, UNICEF initiated a pilot project in Jessore where juvenile
delinquent has been dealt informally within the community. Ministry of Social
Welfare and Ministry of Law, Justice and Parliamentary Affairs provide
technical and financial support. However the coordination between probation
officer, police and lawyer is highly desirable in this regard.
Additionally we encourage family group conferencing or victim offender
mediation as an effective method to deal with the child offender within the
society. With the consent of the children, a school teacher or community
leader facilitate the mediation between a victim and child offender. The
probation officer must establish the link from formal system to diversion. If
the mediation is not successful it can be referred back to the formal court.
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The major problems we might face are the resource scarcity and lack of
political commitment. There is a system of mediation of petty offences
between victim and accused called Salish (in local language). I believe in regard
to juvenile diversion and alternative sanctions in juvenile justice system would
be highly appreciated and accepted by the community.
A S M Sayem Ali Pathan, Advocate, Dhaka Bar Council (24 August
2011)
There are some laws where provisions regarding children offenders are
available. But it is not unworthy to say that all those laws are not satisfactory
enough to deal with juvenile. The Children Act, which is the sole one to
regulate juvenile justice system in Bangladesh, has got rare implementation.
From practical experience, it is evident that law is not properly practiced. It
could be a long list. Lacking of logistic support is the main reason. The
structure of local Police station is like that there is no way to treat a juvenile
differently. The judges are not provided with proper support to deal with the
juvenile. Mostly, the advocates/lawyers have no proper idea on Juvenile law.
So, lacking of proper structure makes the law indolent.
In most of the cases, the child who is an accused gets acquittal depending
upon the nature of the alleged offence. It is like, if a child is named in chargesheet for committing robbery then the Court usually gives a look to the
surrounding circumstances. Most of the cases, it becomes evident that the
accused child has no ability to commit the offence. However, if the accused is
of 12-15 years, then the court give more emphasis on circumstantial evidence
i.e. his previous record (if any), his life style, his prudence etc.
I would suggest these initial solutions:
a. Training program for Police and lawyers on dealing with juvenile.
b. Decorating the Police station by providing all the facilities for
juvenile.
c. Creating a cell in every district for juvenile which will be regulated
by a committee. The District Commissioner, The District Judge
and The Police Super (who is the head of the Police of that district)
will be the member. A written statement will send to this
committee whenever a juvenile will be arrested by police.
d. In every local police station, there must be a police officer in charge
of juvenile.
e. In every Court premises, there must be special facilities for juvenile.
f. Proper facilities should be introduced in every Jail.
g. Juvenile justice system must be included in the syllabus of the
LL.B.
h. Increasing people awareness by way of advertising
Community involvement or juvenile diversion could be an appropriate
way to mitigate the problems. But lack of financial and logistic support is main
obstacle to initiate these in Bangladesh juvenile justice system.
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Md. Kafil Uddin, Director, Bangladesh Child Rights Forum (10
August 2011)
State obligation to establish a comprehensive Juvenile justice system
originates from UNCRC and other international instruments. Moreover the
Children Act 1974 in Bangladesh is very sensitive to child offender. BCRF
along with UNICEF, SC has advocated amending the domestic law in
compliance with international standard. In consequence, the cabinet has
already initiated to reform the Act in 22 December, 2010 though it has not
been adopted by the Parliament yet.
BCRF advocated with the government to appoint a child-friendly police
officer in every police station throughout the country. Government has agreed
to establish District Monitoring Committee in every district which will provide
information in regard to the situation of juvenile delinquents to the
government so that state can prepare the report to the CRC committee.
Unfortunately only in capital city we find child friendly office in the station. In
2009, the National Task Force on Children in Jail reported that 334 children
are kept in prison with their mother, or as juvenile offender. In June, 2011,
only 62 children are found in jail. So it is a positive motion to protect the rights
of children.
The condition of the child correction centre is also very unsatisfactory.
The training programs are not very child oriented. Even the centre doesn’t
provide any certificate on completion of a training program. The probation
office rarely visits the centre. For 64 districts, there are only 22 probation
officers
In Bangladesh, normally children are punishing for serious offences under
Arms Act or Penal Code. In that we think community leaders are not enough
trained to try them. They can be hardly diverted to society. But alternative
sentencing options can be introduced in the legal practice, such as community
service, fine etc. These can be possible only by political will and financial
support
Md. Abu Baker, Deputy Director, Department of Social Services,
Ministry of Social Welfare, People's Republic of Bangladesh(26 July
2011)
In Bangladesh to deal the juvenile offender we have the Children Act
1974. This is a very child sensitive enactment. If the court finds any child
offender, it sends the offender to the correction centre. But we have only three
child correction centre. The Probation of Offenders Act 1964 is to provide for
the release on probation of offenders, both juvenile and adult, in certain cases.
The Social service Department promotes and protects the rights of the
children offender and thereby provides the development programs targeted to
these children by strengthening their survival skills. Bangladesh government
has developed recently a national child policy where the government initiates
lot of development projects for the children. However for the children
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delinquents, the initiatives are few. The upcoming amendment of Child Act
might be an important step to improve the state of administration of juvenile
justice in Bangladesh.
S M Anworul Karim, Superintendent, Child Development Centre,
Tongi, Dhaka (4 September, 2011)
In line with CRC, I find the juvenile law of Bangladesh is very child
sensitive. Though there are some dilemmas in regard to define a child, CRC
also leaves it flexible to the state to fix an age of a child. The main aim of such
law is to rehabilitate the children in the society. Most of the children who come
in conflict with the law came from poor family. Poverty, family breakdown,
lack of parental care are the key factors to drive the children to commit crime.
I find most of the juveniles in the centre are instigated to commit crime, even
they often didn’t understand the consequence of such act.
The government is very committed to establish a comprehensive juvenile
justice system in Bangladesh. The recent amendment which is yet to be passed
by the parliament provides ample scopes to protect human rights of such
children. In this case, the introduction of restorative justice in dealing with
children in conflict with law of course would be a landmark decision to
promote the rights of the children. The government has limited capacity, so
the involvement of society could lessen the burden of the government.
However to provide true justice to the child offender I believe it is necessary to
find out the big criminals who hire children to fulfill their criminal act.
An anonymous Police in Gulshan Police Station, Dhaka (8 July 2011)
I began my career in police service as a junior officer in 2009. However from
2009 onwards, I don’t have any training on child law. In police academy we
used to have classes on the major criminal laws of Bangladesh. But there is no
comprehensive education for us on juvenile law of Bangladesh. Sometime we
need to go though some books on children law dealing with a child. But all the
police officers don’t come from legal background and many provisions remain
unclear to us. Because of that sometimes police officer misstate the age of a
child so as to avoid the special formalities in dealing with a child and the child
is often treated as an adult accused. Some nongovernmental organisations have
been struggling to secure child friendly police officer in every police station
over the country. At this moment almost all the station in Dhaka have child
friendly police officer. If this trend extends to all over the Bangladesh, I believe
the police would have to have in-depth knowledge on the juvenile law. What i
know that in village and municipal area we have some informal courts which
are very directly involved the court procedure. This system could be initiated in
the city areas so that the children can get chances to be redressed within a
community environment
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Appendix 8: Summary report of focus group
discussion with the children in conflict with the
law (4 September, 2011)
The focus group discussion was conducted with seven children delinquent
in Child Development Centre, Tongi with the permission of Social Service
Department, Ministry of Social Welfare, the Peoples’ Republic of Bangladesh.
Because of the confidentially and anonymity I didn’t want to report their name
and the incidents of their cases











The discussion was conducted on the premise of Child Development
Centre in Tongi with the male juvenile delinquents who are being tried
by the court and under custody of the authority of Child Development
Centre.
Out of seven delinquent, four were accused of murder, two for
carrying drugs, one for carrying illegal arms
In the discussion all said that they were informed by the police before
being arrested. All them were handcuffed when they were arrested by
police
Except one, all of them face unfriendly behavior in police custody.
Among them two were physically beaten by the police and three
claimed that police used offensive comments to them.
Six of the children in conflict with the law were detained with adult
offender in police custody.
Only two discussants said that they have been assisted by the lawyers.
Though others had idea of hiring legal professionals, due to poverty
and limited income of their parents, their family could not afford a
lawyer.
No camera proceedings were taken place while the children were tried
by the juvenile court.
All the delinquents were tried by the juvenile court. Five found the
judge very indifferent to them and remaining two said that the judge
was sensitive to them.
Five children claimed that their family member especially their mother
used to visit them in the child development centre. The family member
of remaining two cannot come regularly due to long distance from
their home to child development centre
Most of them said that the officials of the child development centre are
very child friendly. They were satisfied with the allocation to food,
medical treatment etc. There face some problems in the room, such as,
no electric fan during the summer, lack of comprehensive schooling
programs and sincere school teachers etc.
All of them prefer to live with their family instead of being detained in
the development centre. They say they want to be diverted from the
whole process of criminal law because they want to stay in the family
and in the society independently they were born and brought up.
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

Five of the children complained that the government is not sincere to
deal with the issue of juvenile justice. They ask for child friendly police
officer and judge throughout the trial procedure. One of the
respondents highly recommended reorganising the education system in
child development centre, especially to offer computer education for all
of the delinquents.
Six of the children said that dealing the juvenile delinquency needs to
be administered by the community leader and within the process, the
participation of their family could bring justice for them. Because of
poverty and other reasons many children guardians cannot afford a
lawyer, therefore disposal of their case in the community in the
presence of their families and relatives would give them the
opportunity to live with their families.
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Appendix 9: Different provisions of
international instruments (UNCRC and other
soft instruments) related with juvenile justice
Legal
Provisions
Legally binding international Soft
international
convention(UNCRC)
instruments(Riyadh
Guidelines1990, Beijing
Rules 1985, JDLs 1990
Arrest
Article 37(b) says, arrest and Beijing Rules asserts in
procedure and detention of a child must be in rule 10(1), Upon the
detention
conformity with the law and apprehension of a
should be used as a measure of juvenile, parents or
last resort. The delinquent shall guardian of the child
be informed of the charges shall be immediately
against him promptly and have notified
of
such
the assistance of their parents or apprehension. Rule 17
legal representative in all stages and 18 of JDLs lay
of proceedings
down, Juveniles who
are detained under
arrest or awaiting trial
are presumed innocent
Specialized
Juvenile offender would be dealt Beijing Rules in rule
Institutes
separately by juvenile courts and 14.1 says, Where the
the court throughout the trial case of a juvenile
procedure would ensure the offender has not been
child’s access to justice and a fair diverted, she or he shall
and just trial and respect his or be dealt with by the
her privacy fully at all stages of competent authority
the proceedings(article 40)
(court, tribunal, board,
council, etc.) according
to the principles of a
fair and just trial.
Sentencing
Prohibition of death penalty, life Encouraging
non
options
imprisonment without parole or custodial
sanctionsany type torture or other cruel, Rule 6 of United
inhuman or degrading treatment Nations Guidelines for
or punishment.
the Prevention of
Juvenile Delinquency
1990
states,
Community-based
services
and
programmes should be
developed for the
prevention of juvenile
delinquency.
Formal
agencies of social
control should only be
74
Rehabilitation
and
reintegration
policy
A variety of dispositions, such as
care, guidance and supervision
orders; counselling; probation;
foster care; education and
vocational training programmes
and other alternatives to
institutional care shall be
available to ensure that children
are dealt with in a manner
appropriate to their well-being
and proportionate both to their
circumstances and the offence
with a view to their proper
rehabilitation(article 40.4)
utilized as a
means of last resort
Efforts shall be made
to
provide
semiinstitutional
arrangements, such as
half-way
houses,
educational
homes,
day-time
training
centres and other such
appropriate
arrangements that may
assist juveniles in their
proper
reintegration
into society (Rule 29.2,
Beijing Rules).
Guidelines
10
of
Riyadh principles also
declares that emphasis
should be placed on
preventive
policies
facilitating
the
successful socialization
and integration of all
children and young
persons, in particular
through the family, the
community,
peer
groups,
schools,
vocational training
and the world of work,
as well as through
voluntary
organizations.
Finally United Nations
Standard Minimum
Rules for Noncustodial Measures(rule
8.1 and 8.2) states that
the judicial authority,
having at its disposal a
range of non-custodial
measures, should take
into
consideration in
making its decision the
rehabilitative needs of
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the offender, the
protection of society
and the interests of the
victim
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Appendix 10: Weekly diet menu for inmates of
correctional institutes
Day
Friday
Saturday
Breakfast
Bread, Dal
Bread, Sugar
Sunday
Bread, Dal
Monday
Bread, Suji
Tuesday
Bread, Dal
Wednesday
Bread, Sugar
Thursday
Bread, Dal
Lunch
Rice, Vegetables
Rice, Egg, Potato,
Dal
Rice, Fish,
Vegetables, Dal
Rice, Meat,
Potato, Dal
Rice, Vegetables,
Dal
Rice, Egg,
Vegetables
Rice, Fish,
Vegetables, Dal
Supper
Rice, Vegetables
Hodge-Podge
Rice, Vegetables
Hodge-Podge
Rice,Dal
Rice, Vegetables
Rice, Vegetables
Source: Juvenile Justice Administration and Correctional Services in Bangladesh (2002),
Department of Social Services, Ministry of Social Welfare, Government of People’s Republic
of Bangladesh, Dhaka
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