Assessing The Protection of Juvenile Offenders in Bangladesh: Bangladesh Perspective

Dedication

I hereby dedicate my MA Research Paper to my parents Kazal Talukder and Jotsna Talukder for their unquantifiable loveand moral support throughout my life.

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 wouldnot 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

CHAPTER 1: INTRODUCTION

1.0 General Introduction

By the 18th century, English common law characterized those under theage of seven as being incapable of forming criminal intent. For an act to beconsidered criminal, there must be actus reus(the criminal act itself), mens rea(the intent to commit the criminal act), corpus delecti( the interaction betweenthe act and the intent to commit it), Since youths were considered to beincapable of forming mens rea, they were legally unable to commit a crime or tobe criminally sanctioned. Between the ages of seven and 14 children werepresumed to be without criminal intent unless it could be proved that theyattained the age of discretion. That is, it is to be seen if they can distinguishbetween right and wrong. At age 14, they legally were considered adults,capable of forming criminal intent and therefore justly sentenced to serve time injail and prison alongside other adults.By the 1800s, there was the belief that juvenile and adult offenders shouldbe incarcerated separately. At that time, special correctional institutions foryouthful offenders were established in the U.S.It was not until 1899. Though, that the first juvenile court was established.This uniquely American institution was based on the idea that youthful offendersshould be treated differently than their adult counterparts. Instead of decidingguilt or innocence, the court would ascertain whether youths were in need oftreatment. Under the driving philosophy of the new court, parens patriae, it wouldserve as the benevolent parent all knowing and all-loving, wanting only thatwhich is in the best interest of children. Consequently, instead of harsh, punitivesanctions that sought to deter, the court would seek long-term behaviouralchange by providing the guidance youths so woefully lacked from their naturalparents. Sentences were to be customized to meet the needs of each juvenile soas to optimise the rehabilitative effects of court intervention. For most juveniles,the paren patriae doctrine still serves as the foundation upon which theirsentences are based. Such an orientation is not deemed appropriate, however,for those juveniles waived to criminal court. Provisions that allow juveniles to bewaived are on the one hand, in contrast with the original intent and purpose ofthe juvenile justice system. On the other they are consistent with the manner inwhich youthful offenders were sanctioned in the past.The present day controversy surrounding waivers appears to beconsequence of at least two factors converging. First, the definitions of childhoodand age-appropriate behaviour are in a state of flux. Young people are said tobe more predisposed toward violence today than they were in the past. Nationalcrime data sources seem to support this notion. Violent juvenile crime hasincreased by nearly 70% since 1986. Moreover the violence perpetrated byjuveniles is portrayed by the mass media as being more heinous than at any othertime in history. People are fearful of falling victim to a generation that seeminglyholds beliefs and values that diverge drastically from those of normative society.Second, the get-tough approach to dealing with law violators as seenthroughout the criminal justice system-increasingly is being applied to juvenile

offenders as well. Although a conservative approach to juvenile crime is not new,it is in sharp contrast to the predominant way in which the juvenile justice systemhas responded to youthful offenders in the U.S. for nearly 100 years. While it is truethat waivers have been in existence for more than 70 years, they are used moretoday than in past. This has drawn attention to how society’s response to juvenileoffenders is changing from primarily being oriented toward rehabilitation toincreasingly becoming prone to subjecting juveniles to conservative criminalcourt practices.

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)

Map 1: CDCs identified in map of Bangladesh

Map source:http://www.mapsofworld.com/bangladesh/bangladesh-political-map.html

1.1Problem 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.Sometimesthe police is negligent in documenting children’s cases in order to avoid the formalities responsible for a child’s trial (Odhikar1, 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 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 placedon diversions, bothin legislationand in practice, on introducing alternatives to the formal justice system, or onchanging 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 community-based 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.

1Odhikar (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>

1.2Background 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 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 wellsince this academic researchexpands my legal thinking and understanding and develops practical research skills.

1.4Objectives of the study

The study seeks to explain the reasons and implications 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

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 is the best practice to rehabilitate juvenile offenders?

1.5Methodology

The study requires a systematic produced from selection of the topic to preparation of thefinal report. To perform the study, the data sources were to be identified and collected, tobe classified, analyzed, interpreted and presented in a systematic manner and key pointswere to be found out. The over all process of methodology has been given as below:Nature of the Study: This is an exploratory type of research in nature.Sources of data:For preparing this report, data have been collected from primary and secondary datasources.The Primary data Sources: for primary data, there are two types of population. Such as:1. Officers of Rahimafrooz Renewable Energy Ltd.2. CustomersThe Secondary data Sources: Secondary data are collected from different sources likejournals, reports, books etc. The specific sources are:1. Rahimafrooz’s web site (www. Rahimafrooz.com)2. Different Text Books of Marketing

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).

Figure 1: Three pillar model of a child rights-based approach to development(CRBA)

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.

This study would be based among other, on primary sources such as books,articles, journals, case materials, Internet sources, so that the analysis is taken witha multiplinary approach by keeping the phase of justice method and socioeconomicvariables in considerations,Moreover, the study was so designed as to generate data with maximumreliability in the context of financial and other limitations such time andadministrative back up. Taking into consideration all these factors it was decidedto interview all the delinquent inmates. These inmates were fair representation ofdelinquency of different other districts of Bangladesh.

Moreover combining both formal and informal methods of investigation,my field research was conducted over a period of couple of months. Whilequantitative data are necessary to determine the prevalence of a phenomenon.It is the qualitative study that reveals the complexities. The former is more externalin nature while the latter is inclined towards the more internal aspects of arespondent’s life. As such, the polarisation between the two methods represents afalse dichotomy (Andrew 1991:43). McCracken (1988:18) similarly observes thatqualitative and quantitative methods together provide the social science with

bifocal tens.

Literature Review

A regular literature review was conducted first to understand the existing research relevant to juvenile justice in Bangladesh. Web-based search engines such as Scribd, Google Scholar, Picarta, Worldcat were used for the initial research. The following combination of keywords was primarily used to identify literature: ‘the protection of juvenile offenders in Bangladesh’, ‘Trends and Factors of Juvenile Delinquency 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. University of Malaysia and Bangladesh Research Publications Journal were used for 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. 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.

According to Nahid Ferdousi (2011), present social structure destroying juvenile’s childhood resulting in denial of their rights, for example: family life, education, health, games, care and protection. This particular problem requires special care, positive attention and child-friendly attitude for their protection and prevention. Fear of crime, especially random violence perpetrated by young Bangladeshis, has become the greatest concern of the nation. According to Mohammad Bulbul Ahmed and Md. Raisul Islam (2010), fear of crime has influenced politicians and laypersons to adopt the position of a conservative justice system, present system of dispensation of justice seeks to punish and deter. It aims at curtailing juvenile justice. Some social scientists think that the juveniles should be kept away from the courts where adults are put under trial.

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 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 study 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 non-governmental 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

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 Bengalimother 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.

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 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.

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. Thoughrecently 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:

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(non-discrimination, 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

Developmentactors

Strengthen accountability of duty bearers

Support the Children in conflict

with law to demand their rights

Duty bearers

Children(and their representatives)

Changes in -Policies-Practices-Institutions-Attitudes-Participation-Behavior

Changes inchildren’s lives

Rights oriented juvenile justice system

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 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 re-offending”(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 goalon 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, non-discrimination, 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).

Figure 3: A Table Leg Test to introduce child rights based approach

Source: Wernham (2004:21)

Rights-based juvenile justice stands on the CRC principles of non- discrimination, 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 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 introductionof 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”.

Figure 4: Stakeholders involvement and common ground in retributive and restorative justice process

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, advocatesrestitution 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 communitythrough 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 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, thusit 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 againstChildren, 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 of power to communities, victims, off enders and their families to produce a restorative response to off ending.

However, although overlapping child rightsbased 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 rights-based 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 offencesi.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; 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 institutionalizationto the maximum extent possible.The Riyadh principles (principle 6) withal confirm that community-based services and programmes should be developedin 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 employmentor get back the previous job/educationafter 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 societywith 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 outa comprehensive set of rightsfor 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 thatto advance the notion of best interest of child, states parties shall develop and implement a comprehensive juvenile justice policy to shield child rights from exploitationas 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 favor 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

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 recognitionsof 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, inthe 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 liberty as a last resort which must be

limited to exceptional cases. Rules 17 and 18 lay downthat “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)), BeijingRules(rule 18(1))andRiyadh

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)2.

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

2 Appendix 9 indicates ‘different provisions of international instruments (UNCRC and other soft instruments) related with juvenile justice’

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.

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 aproductive 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).3

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 under-privileged 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 internationallaw 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.

3ibid

CHAPTER 3: DOMESTIC STANDARD ON (FORMAL) JUVENILE JUSTICE IN BANGLADESH: LAW AND PRACTICE

In Bangladesh there is no separate legislation onchildren in conflict with the law. The Children Act 1974 along with the Children Rules 1976are 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, recommendedto set upseparate 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 providedin 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 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 Total number of children remanded in police custody

Discharged by the court

Remanded in correctional institutes

Placed on probation

1978-1982 801 260 509 42

1983-1987 2242 679 1525 38

1988-1992 1536 458 1030 48

1993-1997 1766 494 1175 53

1998-2002(June)

2306 1206 1033 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 correctchildren (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 ofless attention onrights-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.

Figure 5: Obligation of Bangladesh under international and national legislations

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 mechanismsfor trying children such as the establishment of a juvenile court, separate criminal procedures, and certifiedcorrectional 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, andthe 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 ofabuse or physical violence is common during arrest (figure 6) and after arrest in police custody.

Figure 6: Police's action against a child in Dhaka

Source:http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8666000

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 offenderstoo 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)4.

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 police-station 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”.

4Appendix 8 summarizes the focus group discussion with the children in conflict with the law

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 policeuse to keep children with the adult offenders in police cell.”(personal interview with a police officer5, 2011). Figure 7 also demonstrates that children are not treated differently and 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)6.

Figure 7: Children treated with adults in police unit in Bangladesh

Source: UNICEF (2010:3)

In recent yearsUNICEF 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

5 An anonymous police officer at Gulshan Police Station, Dhaka6Appendix 8 summarizes the findings of the focus group discussion with the children in conflict with the law

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 workshopson 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 hehas not been brought before the court. It is also found that misconduct and 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)

3.2.4Provisions 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” (Salam7 2011, personal interview).

7 JudicialMagistrate, Metropolitan Magistrate Court, Dhaka.

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. Wecannot go beyond itbecause we are over-burdened with cases and we are supposed to decide a case within a limited time” (Salam8 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 could advice the government to develop new policies and practicesconducive to child's interest and benefits.

3.2.5Sentencing 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.

8ibid

3.2.6Certified 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) showsthe very unsatisfactory condition of the post-trial institutionalization system for the juvenile offenders in Bangladesh. This is almost entirely because of poor administrative cooperationand 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).

The interviews with the children in conflict with the law in the child development centre also depicteda 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)9. 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)10.

Additionally there are no arrangementsin child development centre for keeping the children separatedin 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 stagesare completely left behind in the concerns of CDC authorities.

3.3 Social rehabilitation of children in conflict with the law: Current practiceand 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,

9Focus group discussion with juvenile offenders at Child Development Centre, Tongi.10Appendix 10 shows the weekly diet menu for the inmates of correctional centre

2010:196). In State vs. Roushan Mondal alias Hashem(2007), the High Court Division of Bangladesh held that-

The 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 rehabilitationprocess 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 (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: hewarns 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”

Themindset 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 developmentand 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 cooperationbecause

of social stigma from his family/communitythat 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.

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-judicialsentencing 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 NGOprofessionalbrings 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” (Uddin11 2011, personal interview)

Outside the formal criminal system, however, informalmeasures/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 parishad12 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

11 Director, Bangladesh Child Rights Forum(Bangladesh Child Rights Forum)12Local 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’

the parties”(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 principlesby 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)13. 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)14 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 crimethough; sometimes solutions are arbitrary and imposed on reluctant disputants by powerful village or community members (ibid).

13 Appendix 3 describes Schedule 1 of The Village Court Act 2004 and The Disputes Conciliation (Municipal Areas) Board Act 200414Ibid

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 rehabilitatethem. 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 containspecific provisions of neither alternativeto 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 waythat 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)15. 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. 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

15Focus group discussion with juvenile offender at the child development centre, Tongi.

(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 peace-building

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 scopessubsequently 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 16 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).

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 16Child Protection Officer, UNICEF Bangladesh, Dhaka.

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” (Karim17 2011, personal interview).The juvenile crime prevention strategy in Bangladeshmight 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 inPhilippines 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 preventcrime 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 thejuvenile 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-governmentalorganizations such as Bangladesh Child Rights Forum and Children Justice Network, have been advocating for government to take

17Superintendent, Child Development Centre, Tongi

action on non-custodial 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 aidand 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 underfamily/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 thatdiversions can beintroduced 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:

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 governoror written or verbal apology to the victim/survivor. Thesedispositions are meant to encourage goodbehavior in children and supportparents in guiding the child.

b. Phase two diversions:

If the crimes committed by a child are more intense/severe than those atprevious phase, thepolice 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 forumfinds 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.

4.6Obstacles 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 (Salam18 2011, personal interview). With regard to resolute ajuvenile 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 retributive criminal justice is in the centre of criminal justice administration, introduction of wide varieties of

18Judicial Magistrate, Metropolitan Magistrate Court, Dhaka.

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 (Pathan192011, 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 judicialauthority 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 childrenthough with limited jurisdiction. The chapter upholds thatcommunity supervision and child participation in the process are new to the legal practice of Bangladesh. Theymight 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 .

19Advocate, Dhaka Bar Council.

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 thestate 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 juvenilesin 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 extra-ordinary 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 timefar from acceptable. These are running with lack of adequate food, sanitation, educationfacilities and other correctional responses. Again the possibilities of stigmatization andresentment 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 clarificationagainst 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 through the use of restorative justice approaches by these forums couldprevent children suffering negative developmental impact associated

with detention and formal criminal proceedings andcontribute 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 researchthat 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. InBangladesh, 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 rights-based and child focused.

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 ServicesDepartment needs to come up with some promising initiatives to make the present system more child-centred. For example this department needs to preparereport 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 non-custodial 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.

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).

5.2.6Developing education and training program

Article 24 of ECOSOC Resolution onJuvenile 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

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, 1997International Covenant on Civil and Political Rights 1966 (ICCPR)The Beijing Rules (UN Standard Minimum Rules for the Administration of Juvenile

Justice), 1985The Riyadh Guidelines (UN Guidelines for the Prevention of Juvenile Delinquency),

1990UN Rules for the Protection of Juveniles Deprived of their Liberty (JDL), 1990UN Standard Minimum Rules for Non-Custodian Measures (the Tokyo Rules), 1990United 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 1898Reformatory School Act 1897Special Powers Act 1974 The Apprentices Act 1850The Arms and Explosives Act 1884The Child Act 1974 and the Child Rules 1976The Disputes Conciliation (Municipal Areas) Board Act 2004The Evidence Act of 1872The Penal Code 1860 The Probation of Offenders Act 1964The Village Court Act 2006

Case laws

Fahima Nasrin vs. Bangladesh and others(2009)61 DLR 232In re Gault (1967)387 U.S. 1

State vs. Roushan Mondal alias Hashem (2007) 59 DLR 72

Books/ Articles/ Reports/ Web Resources

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APPENDIXES

Appendix 1: Plan of activities

Activities June July August September

October

November

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

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

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 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

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

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 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:

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 police-station 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:

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.

(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.

Appendix 3: The Village Court Act 2004and 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 342Punishment 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

Appendix 4: Questionnaire for semi structured interviews with the key informants

Name: ………………………………...(optional)Date ………………………………… / 2011Which 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 offenderexisting 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?

13. Do you have other comments you would like to share?

Thank You for your response.

Appendix 5: Questionnaire for focus group discussion with the children in conflict with the law

Briefing:

The information gathered from the discussion will be keptconfidential. 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?

12. What changes do you think need to come in presentjuvenile justice system?

13. What do you opine if the community involvement and other alternatives are introduced in the present system?

Appendix 6: Name and designation of the key informants

S Name Designation1 Md. Abdul Goffur District and Sessions

Judge2 Dr. Mizanur Rahman Chairman, National

Human Rights Commission

3 M. A. Salam Judicial Magistrate, Dhaka Metropolitan

Court4. M M Aminul Islam Sazal Child Protection

Specialist UNICEF Bangladesh

5. A S M Sayem Ali Pathan Advocate, Dhaka Bar Council

6. Md. Kafil Uddin Director, Bangladesh Child Rights Forum

7. Md. Abu Baker Deputy Director, Department of SocialServices

8. S M Anworul Karim, Superintendent, Child Development Centre,

Tongi, Dhaka

Appendix 7: Summary report on the semi-structured 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 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 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.

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 charge-sheet 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.

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, Departmentof SocialServices, 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 Departmentpromotes 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 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, Ibelieve 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

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.

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 guardianscannotafford 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.

Appendix 9: Different provisions of internationalinstruments (UNCRC and other soft instruments)related with juvenile justice

Legal Provisions

Legally binding international convention(UNCRC)

Soft international instruments(Riyadh Guidelines1990,Beijing Rules 1985,JDLs 1990

Arrest procedure and detention

Article 37(b) says, arrest and detention of a child must be in conformity with the law and

Beijing Rules asserts in rule 10(1), Upon the apprehension of a

should be used as a measure of last resort. The delinquent shall be informed of the charges against him promptly and have the assistance of their parents or legal representative in all stages of proceedings

juvenile, parents or guardian of the child shall be immediately notified of such apprehension. Rule 17 and 18 of JDLs lay down,Juveniles who are detained under arrest or awaiting trial are presumed innocent

Specialized Institutes

Juvenile offender would be dealt separately by juvenile courts and the court throughout the trial procedure would ensure the child’s access to justice and a fair and just trial and respect his or her privacy fully at all stages of the proceedings(article 40)

Beijing Rules in rule 14.1 says, Where the case of a juvenile offender has not been diverted, she or heshall be dealt with by the competent authority (court, tribunal, board, council, etc.) accordingto the principles of a fair and just trial.

Sentencing options

Prohibition of death penalty, life imprisonment without parole or any type torture or other cruel, inhuman or degrading treatment or punishment.

Encouraging non custodial sanctions- Rule 6of United Nations Guidelines for 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 utilized as a

means of last resort

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)

Efforts shall be made to provide semi-institutional 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 Non-custodial Measures(rule 8.1 and 8.2) states thatthe judicial authority, having at its disposal a range of non-custodial measures, should take into

consideration in making its decision the rehabilitative needs of the offender, the protection of society

and the interests of the victim

Appendix 10: Weekly diet menu for inmates of correctional institutes

Day Breakfast Lunch SupperFriday Bread, Dal Rice,

VegetablesRice, Vegetables

Saturday Bread, Sugar Rice, Egg, Potato, Dal

Hodge-Podge

Sunday Bread, Dal Rice, Fish, Vegetables,

Rice,

Dal Vegetables

Monday Bread, Suji Rice, Meat, Potato, Dal

Hodge-Podge

Tuesday Bread, Dal Rice, Vegetables, Dal

Rice,Dal

Wednesday Bread, Sugar Rice, Egg, Vegetables

Rice, Vegetables

Thursday Bread, Dal Rice, Fish, Vegetables, Dal

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