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Juvenile delinquency is a burning issue and relatively a new phenomenon in the criminal and human rights jurisprudence. The juvenile of the world are innocent, vulnerable, and curious, full of hope, and belongs to thrill, aspirations, ambition and what not. In face the future of the juvenile should be shared and cared in the light of equality, dignity and social justice with a view to protecting and promoting the best interest of the child in general. The situation of juvenile delinquency in Bangladesh is very critical in nature. The Convention on the Rights of the Child and other relevant international standards for dealing with juvenile offenders provides a rough but broadly adequate framework for any national system. However, Bangladesh is lagging behind in implementing international juvenile justice standards and the domestic legal initiatives for the protection of juvenile offenders are not adequate somehow and to some extent, these are not consistent with the spirit of the Convention of the Rights of Child. Next to non-implementation of laws, the mindset and approach of the people to child offenders are crucial factors that require attention. This essay at the outset, considers the implications of genuine protection of the rights of juvenile offenders. It also discusses some dilemmas for national legislation and the impact of the relevant international instruments on such legislation. Finally the present study has been carried to find out how a child rights-based approach can advance to provide true dignity and justice for child offenders in Bangladesh.
Historical background of juvenile delinquency:
Delinquency was available throughout all the time. In ancient Britain, even seven years old boys were tried, convicted and punished as adults. There was no special treatment for them, a hanging was a hanging. In Norway, for example, a thirteen century penal code specifies that adult might lose both hands if stealing, children only one' (The Council of Europe,2004:13). However, United States of America is one of the pioneer countries on juvenile justice. Social reformers started to create special facilities for troubled juveniles in the late nineteenth century. Though Illinois introduced a separate system of criminal justice in 1899, much had changed by 1909 when Judge Julian Mack famously proposed in a Harvard Law Review article that a juvenile offender should be treated "as a wise and merciful father handles his own child" (Scott and Laurence, 2008:16). Yet the provision of special court and treatment was soon replicated throughout the country and spread aboard in Britain(1908), France(1912), Spain(1918), The Netherlands(1921)(The Innocenti Digest, 1997:10)
Today most of the states of the United Nations have a separate court system for the children accused of an offence. They have the right to treatment that takes full account of their age, circumstance and their needs. The courts generally handle two types of juvenile offender: The delinquent child who has committed an act that is a crime for adult under state law. On the other hand, status offenders are considered unruly and uncontrolled beyond their legal guardian (Siegel and Welsh, 2008).
A multitude factors exist that contribute to the understanding of what leads to engage in delinquent behavior. It is also true certainly social factors like poverty, illiteracy, broken homes; lack of employment, peer pressure, lack of parental guidance can be the best root causes to explain juvenile delinquency in Bangladesh.
In Bangladesh no separate juvenile justice law exists. The 1974 Children Act is the main law concerning children in Bangladesh, but it deals both with children in need of protection/care as well as children in conflict with the law on one hand, other laws, such as the Penal Code, the Code of Criminal Procedure, the Suppression of Violence against Women and Children Act, on the other hand, also contain provisions regarding children in conflict with the law (UNICEF, n.d.).At present, there are three specialized juvenile courts established in the country and three specialized institutions for the detention of child offenders, which have been renamed as the Child Development Centers among them, two centers for boys are located in Tongi and Jessore and the girls' centre is in Konabari (ibid)
Definition of a juvenile in Bangladesh: contradictions and dilemmas
The definition of child is not uniform in the laws of Bangladesh. Different laws have defined children in different ways. According to the section 2(f) of the Children Act 1974 defines a child as a person under the age of sixteen for the purpose of juvenile justice system administration. Nonetheless, UN Convention on the Rights of Children defines as any person under the age of 18 years. In addition the Bengal Vagrancy Act in section 1(3) explains a child as a person less than 14 years. According to the Women and Children Repression Prevention (Special Provisions) Act, 2000 amended in 2003 furthermore, defines a child as a person under the age of 16 years
It is indeed to say that as far as proper functioning of the juvenile justice system is concerned the determination of age is extremely important. However in regard to criminal offence committed by a child, the laws in Bangladesh are to some extent ambiguous. To determine the age of criminal responsibility section 82 of the Penal Code 1860 says that nothing would be an offence, which is done by a child under nine. Surprisingly in the same statute section 83 provides, 'nothing is an offence which is done by a child above seven years of age and under twelve who has attained sufficient maturity to understand the nature and consequence of the act'(Ministry of Law and Parliamentary Affairs, Government of the People's Republic of Bangladesh 1860). So it is one of the difficulties of criminal justice policy to provide the legal mechanism to reflect the transition from the age of childhood innocence and through the maturity and the full responsibility under the criminal law. The article 40 CRC asks the states to establish a minimum age below which children shall be presumed not to have the capacity to infringe the penal law (Convention on the Rights of the Child, 1989). 'The treaty does not spell out at which precise age the line should be drawn though committee monitoring the implementation of the Convention has expressed the concern about the low age in several countries' (Hammarberg 2008:194). Rule 4.1 of the Beijing Rules provides, in those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity (United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985). These international standards unfortunately are not followed in the courts of Bangladesh as there is no uniformity in the definition of a child. In concern with this the Committee on the Rights of the Child in its concluding observations of 2003 expressed over "the limited progress achieved in establishing a functioning juvenile justice system throughout the country"(UNICEF, n.d.).
International legal framework for a child rights oriented juvenile justice:
The major international conventions dealing with juvenile justice secures the protection of a child in conflict with law and urges for special action in accordance with the nature and circumstance of the offence.
Juvenile justice has become an international issue with the UNCRC coming into force in 1990. Articles 37 clearly states, 'No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment..................Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age' (Convention on the Rights of the Child, 1989). In addition, article 40 connotes, 'States Parties recognize the right of every child accused of infringing the penal law shall be treated 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 in society' (ibid). These special provisions also focus on several rights like, right to be informed, rights to a fair trial, right to legal assistance and so forth. This convention is binding legally on Bangladesh and operates as hard international law.
Apart from CRC, there are three other important UN sponsored documents dealing explicitly with the standards and guidelines for the treatment of children coming with the conflict of law. The Beijing Rules conveys the basic procedural safeguards for a juvenile offender, such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority (United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985). Riyadh Guidelines moreover, call for a child centered orientation and child development perspective to prevent delinquency that directly refers to adoption of the 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 (Krech,1998), whereas the other charter urges for a juvenile justice system that should uphold the rights and safety and promote the physical and mental well-being of juveniles (UN Rules for the Protection of Juveniles Deprived of Liberty, 1990). Besides, there are additional documents which are often referred to in any discussion on Juvenile Justice, for instance, Standard Minimum Rules for the Treatment of Prisoners of 1955, UN standard Minimum Rules for Non-custodial Measures of 1999 etc. It is important to note that Bangladesh is not a signatory party of these international instruments for juvenile justice, but it is morally bound with the provision of these guidelines and directions for the betterment of the juvenile.
Human rights violation of the juveniles in conflict with law in Bangladesh:
In Bangladesh, according to the Children Act 1974 and also the Code of Criminal Procedure, children can only tried by juvenile court and no trial can be held with the adults. The trial shall be held in camera i.e. only people directly involved in the case and officer of the courts can be present during the trial. Even the report of the probation officer or any other report considered by the court shall be treated as confidential and publication of report of the proceedings, photograph of the child leading directly and indirectly the identity of such child is prohibited. But these provisions have been rarely followed in trying a juvenile delinquent.
The juvenile justice system in the country remains in a chaotic situation as there are dozens of judgments convicting the youth offenders under the Children Act 1974, although there cannot be any punishment to children under 16(The Daily Star,2007)
If it appears to the court the accused is a child, the court shall make an inquiry to determine the age of the child. In the absence of birth registration practice, the judicial officers have to depend on mere speculation or, medical certificates of the child. Section 48 states that if a child arrested is under 16 years old, the police officer may release him on bail (The Children Act 1974). But the reality tells something else. A study by Odhikar it was found that in 2001 in Dhaka Central Jail 7% of the children arrested with adults on suspicion under section 54 of the Code of the Criminal procedure 1898 had been in custody for more than 2 years (Chowdhury, 2006). In 2002, a 14year old boy was released from prison in December after two and half year in custody. The child was arrested in a blanket sweep against criminals and never charged with any offence (US Bureau of Democracy, Human Rights, and Labor, 2004).In July, 2005 the Dhaka Metropolitan Magistrate Court released a nine years old boy from criminal case after investigators from a local human rights organization noticed him during a regular prison visit (US Bureau of Democracy, Human Rights, and Labor, 2005).
After the arrest of the child, neither the probation officers are informed by the police nor are the guardians found with the help of probation officers. For the protection of best interest no child would be tried, detained with adults and sentenced with life imprisonment. Nonetheless, the issue of joint trial of a child with an adult has been in a number of cases. For example, in Shiplu and another vs. State (1997), Shiplu a boy of 14 years old was tried with his mother for killing a woman under section 302 under the Penal Code 1860. They were convicted with the District Court and sentenced to imprisonment for life. In the appeal preferred by Shiplu, the conviction of the trial court was invoked by appellant's advocate to be set aside for two reasons, Shiplu was a child at the time of the trial and the trial of him was not taken place in a juvenile court. Therefore the Appellate court accepted the disposition of the appellant's lawyer and issued an order that the conviction as given by the District court would be set aside. In reference with this, a report shows approximately 347 children were imprisoned (some with their mothers) despite laws prohibiting the imprisonment of minors (US Bureau of Democracy, Human Rights, and Labor, 2009)
The government's human rights record remained poor, and the government appeared to be inactive to assist the rights of the child offender. Even other concerned authorities including the judges of the court seem to be very careless to take into account the domestic laws of Bangladesh. In 2004, a 3-year-old child, accused in an attempted murder case, surrendered before Court of Chief Metropolitan Magistrate and prayed for bail (The Daily Star,2004). A research conducted on ten child offender sentenced under the Penal code in Bangladesh shows that the youthful offenders were kept in the jail custody with the adult prisoners and most of them were detained in the District Jail not in the child development centers, even no probation officer visited them during the pendency of the legal procedures (Malik, 2007:41-42)
If a child has been kept in the child development centre, he can exercise his rights to education, leisure; participate in training, cultural activities and so on, unfortunately poor administrative and logistic support lead to a hindrance to protect the best interest of the child in such centers. The probation officers don't submit the report to assess the improvement of children regularly and the inmates are not produced on the scheduled day before the court (Khan and Rahman, 2008:83-84)
As Bangladesh is one of the state parties of the CRC, it is obligatory for the state to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights of the children in conflict with law. The child rights oriented juvenile system does fit to a country like Bangladesh to fulfill, protect and promote the rights of the children. Though there are some challenges still remaining, I would like to argue that child rights based juvenile justice framework would be very reliable to explore youth justice in Bangladesh through transparent use of resources, CRC centered policies and the collaboration of the actors.
What is a child rights based juvenile justice system:
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 the juvenile court was the principle of parens patriae. This means that instead of lawyers fighting to decide guilt or innocence the court would act as parent or guardian interested in helping the child (Family law,n.d.).
The child rights based juvenile justice is a holistic approach basically prioritizes the principles of non discrimination and equality (article 2, CRC), well being of the child (Article 3, CRC), and participation, voice and volunteerism (article 12, CRC). It implies the progressive realization of the rights of the juvenile offender through the separate judicial mechanism and special treatment with a view to facilitating human dignity and integrity. It hold the powerful accountable to come up with the child centered legislations and policies and allocate budget and more resources for the delinquent. The child rights based juvenile justice seeks to improve the quality, responsiveness and relevance of the institutions and services like child oriented judiciary and probation office, well equipped correctional centers etc. Besides, a child friendly juvenile justice framework intends to change awareness, attitudes, behavior, practices, norms, and values in the society by the sensitization and training of different sections.
However a question can come into play whether the offender would go unpunished in this framework. The procedures under a child rights based approach may recognize the damage to the victim and it should make the juvenile offender understand that the deed was not acceptable (Hammarberg 2008:194). But the main difference with the ordinary criminal justice is that child rights juvenile system doesn't advocate for retributive procedure and encourages to establish responsibility of the actors to promote rehabilitation and re-integration (ibid).
Tools of structuring rights based juvenile justice system:
Child rights juvenile justice needs a wide range of tools to achieve concrete and sustainable results for children wellbeing. It works to get duty bearer to fulfill their obligation and to support children to claim their rights. The State is required to render appropriate assistance additionally to parents and legal guardians in the performance of their child-rearing responsibilities, thus ensuring that the capacity of families to act as the first line of protection of children is enhanced (Pais, 1999:13).
Initiating legal reforms:
Necessary amendments in regard to the national juvenile laws need to be brought into the line with the standard laid down by CRC. For instance, under the Children Act urgent reforms should be made to consider everyone below the age of eighteen years (Khan and Rahman, 2008:103). In Uganda, specialized family and children courts with informal settings and speedy trial procedure have been established for rehabilitating the children in the society (Roy and Wong, 2006:45).In Bangladesh the national legislation doesn't recognize the principle of diversion that needs to be maintained with the provision of community based rehabilitation, NGO's involvement, etc, even it does not urge for the establishment of a child ombudsman office. These legal reforms are in the core of child rights based youth justice. However, Bangladesh government started to concentrate to a new national social policy on models of care and protection for children in conflict with the law has been drafted to address both children in conflict with the law and children in children of protection (Ahmed and Islam, 2010:281).
Providing adequate legal aid:
Most of the children who come in conflict with law in Bangladesh come from very poor families who don't have the ability to engage counsel for their defense. Article 40, UNCRC notes that he child is entitled to have legal or other appropriate assistance in the preparation and presentation to defend him. In accordance with the convention the strategy under child rights model accounts the government to provide free legal assistance to the vulnerable children to ensure the fair and prompt trial.
Child friendly Court environment:
In Bangladesh, in the children development centres there are separate courts for children which are in comparison to other criminal courts more favorable for the children. But very few cases are heard there. Majority of the cases tries in the ordinary criminal court with adverse court environment and the required special procedure specified in the Children Act is not followed. The child is not heard and he is not allowed to participate in the court proceedings as well. The child rights oriented court system identifies the duty of police, judge, and public prosecutor and broadly the governments by allocating resources and providing trained actors(judges, police etc) to compose an informal court environment that secures the participation of the children and secondly promotes the establishment of laws, procedure in favor them in coordination with article 40(3), CRC.
Serving facilities in the juvenile development centers:
The centers in Bangladesh lack facilities for correctional activities. The curriculum for the vocational training is not up to date, the instructors are not skilled enough and the officials lack skill to deal with the children who need special care and attention. 'One 10year old boy was found killed in the Juvenile Development Centre with his throat slit and another one reportedly died in a clash between prisoners'(Odhikar,2008:2). In this context, the juvenile rights based youth justice demands to incorporate counseling, modern trade for the correction centres and arrangement of training for the centre employees including the probation officer.
Duty of the NGOs, INGOs and Social Welfare Departments:
The NGOs with shelter home can secure the protection of a child in conflict with law. They have the duty to provide free legal aid and act on behalf of a juvenile. In Vietnam Save the Children (Sweden) approached by the Ministry of Justice for technical assistance developed the capacity of staff in various relevant agencies like police, prosecutors, judge and the officials of mass organization and initiated programs to ensure familiarity with UNCRC, international standard, divergence between police policy and practice on the ground(Roy and Wong,2006:76).The new child rights concept involves a shift to justice and entitlement of the children and acknowledges immediate survival and development of them by making the duty holder accountable. So, the probation officers under the Social Welfare Department are bound to exercise their power and perform their duties properly to train the offender and rehabilitate them in society.
Necessity of training and sensitization:
Protection of the best interest of the child by community service:
The Beijing Rules specify care, guidance, probation services, and community services as non custodial sentencing options in section 18. In accordance with the international norms, community service asks the child to provide service to the community as means of punishment or restitution and allows juveniles to remain with their families. The rights focused juvenile justice can address the community service in Bangladesh as a meaningful method in which young people can see the benefits of their works
Children justice plannings in Bangladesh seek the involvement of a wide range of people from various institutions, government department and the society including judiciary, police, probation officer, stakeholders, community leaders, social welfare personnel, staff of UNICEF to promote the integration of a child offender. International guidelines emphasis the importance of inter ministerial and inter departmental coordination to improve the quality of institutional treatment of the children as well (section 26, The Beijing Rule and section 60, Riyadh Guidelines)
Challenges to develop a child rights based juvenile justice model in Bangladesh:
To me, it is relative early stage to build up a child focused juvenile justice system successfully. Ideologically it is associated with neo-liberal agenda and in Bangladesh context; some encounters may hinder the process of the development of rights based approach to youth justice in Bangladesh.
Lack of available resources:
This approach binds the government with their effective efforts to promote the rights of a child offender inside and outside the court by the maximum use of resource. Establishing well functioning juvenile courts and national council for children, effective mechanism for birth registration programs and other promotional activities demand a high profile budget which may slow down the process of child development.
Absence of coordination among stakeholders:
In Bangladesh different stakeholders have been carrying out many activities in the area of pro child manner juvenile justice. Though the enthusiasm is high, these activities have often been proved to be sporadic in nature due to the lack of coordination among them.
Deficiency in monitoring role of authorities:
In the courts of Bangladesh there is no provision as well as facilities to monitor the progress of the dispositional orders. That's why when the child is placed out at home, it becomes almost impossible to supervise his condition whether he gets involved with another offence or he is able to enjoy his rights.
Lack of political will or commitment of the duty bearers with limited public accountability:
I like to conclude that there is a light of hope that during the recent years government and other NGOs have been working hard to improve the human rights condition of the child offender. The 'juvenile correctional centres', which were, in practical terms, jails for young boys allegedly involved in criminal activities, were transformed into 'child development centres' that tried to promote more humane approaches towards treating the children in the centres and to acknowledge their role as active citizens( Judge,2007:28).. However the government intends to consider those children who are detained in jail, not the children who have been back in their families (Khan and Rahman, 2008:103). However the rights oriented approach does not allow separation among the children and reveals to aid the best interest of child regardless of their birthplace or status Therefore I like to reckon that it is an approach that can be successfully filtered to inspire, persuade and support states in discharging their obligation to juvenile offender's rights in Bangladesh.