JUVENILE JUSTICE SYSTEM IN BANGLADESH – AN APPRAISAL

Absar Aftab Absar and Mohammad Ashraf

Faculty of Law, Aligarh Muslim University, Aligarh - 202002 (U.P)

International Seminar on Juvenile Justice System, Dehradun (Uttarakhand)26th and 27th November, 2016

It is a Review Paper with an objective to evaluate Juvenile Justice System in Bangladesh, our immediate neighbour, which was part of the pre-independence India and then of

Pakistan till 1971 when it gained independence.

This work is based almost entirely on Internet Sources.

Briefly mentioning Types and Causes of Juvenile Delinquencies and Historical Background of Juvenile Justice System, the Evolution of Juvenile Justice System in Bangladesh has been traced.

The Children Act – 2013 of Bangladesh has been described followed by some observations on scope of its further improvement.

Types & Causes of Juvenile Delinquencies and Historical Background of JJS have been discussed in details in other presentations. This presentation, therefore, is confined to Bangladesh Specific Issues only.

Juve

nile

Just

ice S

yste

m (J

JS) i

n Ba

ngla

desh

1. Evolution of JJS in Bangladesh

2. Bangladesh Children Act - 2013

3. Observations and Inferences

Evolution of Juvenile Justice System in

Bangladesh

Background of Juvenile Delinquencies in Bangladesh

It became East Pakistan, a Province of Pakistan, on India’s partition in 1947

Independence of People’s Republic of Bangladesh in

1971

Political turmoil and a series of Military Coups

Political stability returns followed by Restoration of

Democracy in 1991

Juve

nile

Del

inqu

ency

Rel

ated

to

the

Hist

ory

of B

angl

ades

h As East Pakistan exploited by rulers from West Pakistan - Delinquencies inherited

Built up of feelings of hate and aggression for Pakistan - Delinquencies

developed

Cultural conflict, deprivation and alienation – Delinquencies compounded

Up to 3 million deaths, 40000 rapes, refugee problems, war babies and generation of

orphans – Delinquencies aggravated

Successive Development of Juvenile Justice SystemAct / Law Year Remarks

IPC 1862 Minimum age of criminal responsibility is 7/9 to 12 years. Mental maturity to be proved if child of this group is convicted.

Bengal Prison Act 1894 Separate trials for child and adult Reformatory Schools Act 1897 State to establish special schools for

reformation of juvenile offenders.Cr. P. C. 1898 Section 29B has provision for trial in

Children / Juvenile Courts.Bengal Children Act 1922 The Act, the earliest Children Act in the

subcontinent, incorporated components from laws enacted earlier.

Bengal Vagrancy Act 1943 Defined vagrancy and proposed measures to tackle it.

Successive Development of Juvenile Justice System ContinuedAct / Law Year Remarks

Bangladesh Constitution 1971 Articles 15 and 28(4) say that the State will secure all its citizens including children and special laws to be enacted for children & women.

Bangladesh Children Act 1974 A detailed document in which child is defined as a person below 16 years (S 2f). Issues of bail & arrest contained in S 13(2), 48, 49 and 50. Jurisdiction, trial and punishment issues discussed in details.

Children Rules 1976 Contain Rules for Children Act - 1974 Penal Code (Amendment)

Act2004 Criminal responsibility age increased

from 7 to 9 yearsBangladesh Children Act 2013 Enacted after repealing Act of 1974 with

need based changes and is in line with CRC and other Guidelines of UN. A comprehensive document.

Bangladesh ChildrenAct – 2013

[Shishu Ain – 2013]

Background of the Children Act - 2013 Article 27, 28 and 31 of the 1971 Constitution of Bangladesh lay down the

foundation of Juvenile Justice Administration in the country.

Article 27 declares that all citizens (including children) are equal before law and are entitled to equal protection of law.

Article 28 empowers the Government to make special provision in favour of child.

Article 31 specially entitles a citizen to the right to protection by law.

Children Act – 1974, promulgated within 3 years of Bangladesh’s Independence, blended the above mentioned constitutional clauses with provisions of I.P.C and Cr.P.C and laws of erstwhile Bengal Province of Pre-Independence India.

Then by incorporated time-tested provisions of the Act of 1974 with guidelines of Beijing Rules (1985), UNCRC (1989) and Riyadh Recommendations (1990), the document of the Children Act - 2013 (Shishu Ain) was prepared giving due consideration to contemporary social, ethnic and cultural aspects of the country.

A Comprehensive Document

Bangladesh Children Act 2013

1Act of 1974

2Rules of

1976

3CRC

Guidelines 1989

4Beijing Rules1985

5Riyadh

Guidelines 1990

After being pending for a long time, the Act became effective from 21st August,

2013

Section 3Not withstanding any thing in any other law, the

provisions of this Act shall prevail.

According to Section 4, and

consistent with UN Guidelines, the child is the person up to an age of 18 years. In 1974 Act it was

16 years.

Although not mentioned, JJA-2006 of India seems to have influenced BCA–2013 to some extent.

A Summary of Children Act - 2013

Sections Provisions1 and 2 Name of the Act and date of its taking effect 3 Over-riding effect of the Act4 Child defined as a person below the age of 18 years 5 to 32 Appointment and responsibility of Probation Officers and Child

Affairs Police Officers (CAPO), establishment of Child Affairs Desk, Child Welfare Board and Children’s Courts, confidentiality issues and time framework for trial

33 to 36 Restrictions regarding punishments, order of detention, periodic review under detention and issues related to the release of the accused child.

38 to 44 Settlement of dispute, payment of compensation to child victim, result of trial and information on release of the accused, appeal and the minimum age of criminal responsibility.

45 to 54 Issues related to arrest, investigation, diversion and bail

A Summary of Children Act – 2013 Continued

Sections Provisions55 to 58 Issues related to legal aid and assistance to child59 to 69 Establishment of Child Development Centres for accommodation,

reformation and development of children who have been ordered to be detained or are under trial.

70 to 82 List of possible penalties which could be imposed on those who have committed particular offences against children.

83 to 94 Issues related to Alternate Care System for child offenders which include care with family, institutional care, alternate care provided by the Government, duration of care, disadvantaged children, follow up actions, forwarding of children by persons / organizations / Police and assessment of child during alternate care.

95 to 100 These are regarding the power of the Government for making rules from time to time in matters related to the welfare of citizen children.

Age Issue and Matters Related to Probation Officers, CAPO and Child Welfare Board

1. According to S 4 of BCA-2013, a Child means someone who is up to 18 years of age. As per S 20, date of commission of offence would be the date on which age is to be determined. Minimum age of criminal responsibility is 9 years according to S 44. As part of investigation procedure under S 46, it is mandatory for Child Affairs Police Officer (CAPO) to ascertain the age of the child.

2. Probation Officers are to be appointed in Police Station (S 5 & 6). In addition, there are provisions for the appointment of CAPO as Incharge of Child Affairs Desk at every Police Station (S 13 & 14).

3. According to S 7, 8 & 9, there is provision for the establishment of Child Welfare Board at the National level headed by the Minister concerned. Boards are also to be established at District and Subdivision levels.

Courts and Issues of some Court Rules/Procedures 1. According to S 15, where a child is involved in any offence with an adult,

separate charge sheets are to be filed.

2. As per S 16, Children’s Courts are to be established in all District.

3. As per S 17(2), the Children’s Court will hear cases of both child & adult separately on same days until the trial is concluded.

4. S 22 provides for the presence of the accused child in the Children’s Court during trial as his right. S 23 identifies family members & officials who may be present in the court during trial.

5. S 28 stipulates the confidentiality issues that child’s name and photographs should not be made public without court’s permission.

6. S 31 requires that the Probation Officer should submit a social enquiry report within 21 days of production of child in court. S 32 provides that the trial should normally conclude within 360 days.

Detention & Punishment Restriction Issues 1. Restriction in punishment and related aspects are given in S 33, 34, 35 and

36.

2. No child shall be sentenced to death, imprisonment for life or imprisonment.

3. Exception may be when child has committed a serious offence for which the punishment provided by Act - 2013 is not sufficient or the court believes that the child is so unruly and of depraved character that he cannot be sent to a certified institute.

4. Where a child is found guilty of an offence punishable with death or imprisonment for life, the Children’s Court may order the child to be detained in a Child Development Centre for a period not less than 3 and not more than 10 years.

5. If a child is found guilty of an offence not punishable with death or imprisonment for life he may be ordered to be detained in a Child Development Centre for up to 3 years.

Detention & Punishment Restriction Issues Continued 1. A child changed positively and who has not been charged with heinous or serious

offences may be considered for his release when he reaches the age of 18 years.

2. Where the child is charged with heinous or serious offences and is still under-trial when attaining the age of 18 years, he may be transferred by the Child Development Centre to the Central or District Jail subject to approval of the Children’s Court.

3. If a child is above 18 by the time the trial finishes, the Children’s Court shall send him directly to the Central or District Jail.

4. S 37 of the New law has provisions for the settlement of dispute and payment of compensation to the victim child have been mentioned in S 38 and 39.

5. According to S 41, appeal or revisions are to be disposed of within 60 days.

6. S 42 stipulates that when any provision does not exist within this law, the provisions of the Code of Criminal Procedure shall be followed.

7. S 43 provides that for child accused under this Act, S 75 of the Penal Code 1860 & S 565 of Cr.P.C. 1898 shall not be applicable and such finding of guilt shall not cause him to be disqualified for employment or elections.

Issues Regarding Arrest, Investigation & Bail 1. Issues regarding arrest, investigation, diversion and bail have been

borrowed with some changes from the Children Act – 1974.

2. In the new law these provisions are regarding informing parents of the accused child by Incharge of Police Station or CAPO (S 45), investigation process and procedure (S 46), recording of statements, warning and release (S 47), diversion measures (S 48), arrangement of family conference (S 49), breach of conditions of diversion / failure to comply with order of diversion (S 51), bail issues (S 52) and issues related to the child being in contact with law (S 53 and 54).

3. The court may release the child on bail with or without surety, whether or not the offence alleged is bailable or non-bailable. Bail may be granted on the bond of the child concerned or of the child’s parents / guardian or Probation Officer or any institute or association whom the court considers appropriate, with or without surety.

4. In cases where the child is not released on bail, the Children’s Court must give its reasons for refusing bail.

Other Issues 1. In accordance with S 55 to 58, no court shall proceed with the trial of any case

without legal representation on behalf of a child in conflict or in contact with law.

2. S 59 to 69 relate to issues, such as, procedures for setting-up of Child Development Centre and certified institutes by Government and private initiatives, minimum standard of care, inspection of institutes, transfer among institutes and procedures involved in the escape of child.

3. S 70 to 82 contain clauses on penalty for offences committed against children, such as, cruelty to child, engaging child in begging, providing a child alcoholic drinks or harmful medicines, permitting entry of child in places of supply of alcoholic drinks and drugs, inciting child for practices of betting and borrowing, permitting a child in brothel, encouraging for immoral acts, making child carry arms or inciting for terrorism.

4. S 83 to 94 relate to the domain of alternate care comprising matters, such as, care within the family or community, institutional care, establishment of alternate care by the Government and related issues.

5. Issues pertaining to the rules making power of the Government and some miscellaneous matters are discussed in S 95 to 100.

Conclusion[Observations & Inferences]

Conclusions First and foremost, the educational system in Bangladesh has to be created in such a way that

it is compulsory up to 10th standard and number of dropouts has to be very effectively controlled.

Restorative Justice Model needs to be included in the system and given importance for Juvenile correction and a thought needs to be given to the establishment of Child Rights Commission.

There is need for prioritization of non-custodial alternatives and Government should give various incentives to private parties and NGO’s for creating Reform Schools and Rehabilitation Centres.

Tasks, such as, appointments of POs and CAPOs and establishment of Child Care Boards and District level Children’s Courts need to be achieved fast as then only it would be possible to gauge the efficacy and effectiveness of the Act in true sense.

Sensitive issues like the crowding of Child Development Centres and proper discharge of responsibilities by the officials of these centres have to be given top priority.

One aspect on which the new law is silent is the forced enrolment of children in terrorism related activities by various radical groups. Bangladesh has witnessed many terrorism-related activities and anti-government public demonstrations in which children have been reportedly involved. This is a very crucial issue as radical groups tend to target children as young as twelve. The law should have provision for care and correctional measures of such children and also heavy penalty/punishment for those who incite them for such activities.

Thank You