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Research Proposal On Juvenile Justice System in Bangladesh: Current State and Possible Reforms 1. Background Throughout the world, children who come into conflict with the law as a result of being accused or suspected of committing a crime are at greatest risk of having their fundamental rights violated. For this reason, the Convention on the Rights of the Child (CRC) has established the following as the core guiding principle for the treatment of children in conflict with the law: “State 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 the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.”1 To this end, States parties are required to establish laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law. While Bangladesh ratified the Convention on the Rights of the Child and has been trying to harmonize its laws and practices with the norms enshrined therein, there are still some areas of juvenile justice which are in conflict with the Convention. The concept of juvenile justice in Bangladesh is not unified and it is scattered in various laws which affect children. 2. Statement of the Problem As in many countries, the situation of children coming into conflict with the law is an issue of serious concern in Bangladesh. The Committee on the Rights of the Child in its concluding observations of 2003 expressed its concern over “the limited progress achieved in establishing a functioning juvenile justice system throughout the country”. In the absence of a proper functioning juvenile justice system, no accurate statistical information is available on the actual number of children in conflict with the law in Bangladesh. Furthermore, no separate juvenile 1 Convention on the Rights of the Child 1989, Article 40

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justice law exists in Bangladesh. 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. Other laws, such as the Penal Code, the Code of Criminal Procedure, the Women and Children Repression Prevention Act, also contain provisions regarding children in conflict with the law. In 2004, the age of criminal responsibility was raised from 7 to 9 years old amending section 82 of the Penal Code. In a country where levels of birth registration are about 10-15 per cent, this means children in conflict with the law are often deprived of age-appropriate protection. In addition, children over 16 are treated as adults because according to the Children Act, “child” and “youthful offender” are defined as a person under the age of 16. At present, there are three specialized juvenile courts established in the country and the creation of another four of these courts is being considered. However, most of the children are dealt with through the regular criminal courts, where they are often tried tly with adults and have no legal representation. There are three specialized institutions for the detention of child offenders, which have been renamed as the Child Development Centres. The two centres for boys are located in Tongi and Jessore and the girls’ centre is in Konabari. In practice, many children however are sent to ordinary prisons where they are imprisoned with adults. Now the questions are: 1. What is the exact definition of juvenile or child? 2. Who are the juvenile offenders? 3. Why they need special treatment? 4. What treatments can be given to them? 5. What is the situation of juvenile justice in Bangladesh? 6. What are the obstacles for ensuring juvenile justice? 7. How can those be solved? 3. Objectives The objectives of this paper include1. To give definitions of juvenile and juvenile offenders. 2. To find out different juvenile justice related legislation in Bangladesh and their loopholes.

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3. To find out special treatments of a juvenile offender during his detention. 4. To identify the alternative sentences for juvenile offenders. 5. To categorize the overall condition of the juvenile offenders in Bangladesh as compared to that of other countries in the world including Malaysia. 6. To give a brief discussion on juvenile justice system of Bangladesh. 7. To provide some recommendations to improve juvenile justice system in South Asia. 4. Methodology It is a doctrinal type of research. So, analytical method will be followed here. The study will be conducted mainly on the basis of literature survey and also on the basis of primary and secondary information. Primary sources like different legislations and conventions will be studied and secondary sources like books, various journals and research papers, study reports, newspaper articles and case decisions will be surveyed in completing the research. To achieve the objectives of the thesis interviews of some judges, law teachers and other experts of Bangladesh and Malaysia will also be taken. 5. Literature Review Bangladesh is one of the poorest countries in the world with 40% of the population living below the poverty-standard. The demography of Bangladesh consists of 13% of the population under 5 years, 38% under 15 years and 47% under 18 years of age.2 Among the many problems that Bangladesh is currently facing, juvenile delinquency is a serious problem and recently has received considerable attention. 3 Juvenile delinquency is a major concern in Bangladesh where the number of children involved in anti social activities appears to be on the rise. While it is important to ensure that delinquency is prevented through judicial measures, it is vital to secure the well-being and rights of all children who come into conflict with the law.4 2

GOB, Third and Fourth Periodic Report of the Government of Bangladesh under the Convention on the Rights of the Child, (Dhaka: Ministry of Women and Children Affairs, 2007), at p. 11. 3 Chowdhury, Afsan.. 2002. Juvenile Deprivation of Liberty: Prospects for Alternative in Bangladesh, Dhaka: Save the Children UK and Services Plus, p. 16. 4 Ahmed, Mohammad Bulbul and Islam, Md. Raisul, “Treatment of Juvenile Offenders: Bangladesh Perspective”, Bangladesh Research Publication Journal.2010. Vol. 4, Issue. 3, Pp 274-285.

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Despite having a comprehensive international legal framework and in case of Bangladesh, an elaborate national framework, there exists a big gap between the laws and the reality on the ground.5 Most of the existing legislation predates the current international standards on juvenile justice and thus do not reflect and comply with these principles fully. Although Bangladesh ratified the CRC in 1990, a number of factors frustrate the very object of juvenile justice system in Bangladesh.6 The definition of children is not uniform in the laws of Bangladesh. Different laws have defined children in different ways. The Children Act defines a child as less than 16 years. But the CRC defines a child as less than 18 years. Hence, in Bangladesh, children between 16 and 18 are treated as adults and are not protected by the laws on children. The Inter-Ministerial Committee on Juvenile Justice, which met on 10 March 2002, at Prime Minister’s Office, decided, “All boys and girls less than 18 years shall be considered as children.7 Although the Children Act was enacted in 1974, there was neither any reported case under the Children Act from the High Court Division nor any case on appeal to the Appellate Division in which children were involved till 1990s. During the 1990s the issue of justice for the children in conflict with the law gained more attention from the judiciary. The High Court Division of the Supreme Court of Bangladesh in the case of State vs. Deputy Commissioner, Satkhira 8, for the first time, dealt with the rights of a 12 years old boy in conflict with the law. In a landmark ruling in 20039, the High Court Division of the Supreme Court of Bangladesh, in a suo motu order, issued 7 points directions to the government to take specific steps for system-wide improvement as mandated by the Children Act, including: releasing juveniles in custody who were under the minimum age of criminal responsibility; expedition of cases against juveniles; withdrawal of charges against children charged with minor offences; greater involvement of legal aid committee to make bail motions for juveniles; separation from adults in places of detention; and transfer of juveniles to appropriate places of custody, remand or detention. Thousands of children 5

Ahmed, Mohammad Bulbul and Khan, Camellia, “Juvenile Justice System in Bangladesh: A Critical Appraisal”, ASA University Review.2010. Vol. 4, No. 1, Pp 225-237 at p. 232 6 Ibid 7 Ibid 8 14 BLD (HCD) (1994) 266 9 11 BLT (HCD)(2003) 281

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were released from custody as a result of this decision. These directions changed the course of children justice system of the country. This judgment was further referred in Bangladesh Legal Aid and Services Trust vs. Bangladesh and others10 and confirmed that children are entitled to trial before the juvenile Courts and they should not be tried tly with adults. In 2006 a Division Bench of the High Court Division of the Supreme Court of Bangladesh in the case of State vs. Md. Roushan Mondal 11, offered progressive interpretation of the various issues concerning the children justice system. 6. Scope and Limitations There are a number of observations that must be made as regards the scope and limitations of this thesis. Firstly, this thesis will focus on the provisions of the Children Act and Rules and related case-law on children in conflict with the law and to a small degree will also be concerned with children who are victims and children in need of care and protection. Although, the Children Act is also concerned with child victims and children who are in need of care and protection, there is very little case-law available on this subject and this is an area of international law that is still under development in particular through the formulation of soft-law guidelines and principles. Secondly, this thesis will provide, prior to discussing national law and case-law, an overview of the history and development of the concept of child rights and the international body of law that has developed in this area. Finally, a limitation of this research which needs to be mentioned that it will be based on the Children Act and other relevant laws as exists at present. The Children Act of Bangladesh is currently under process of amendment. However, any amendment made in the Act during the time of research shall be included in the thesis. 7. Structure The thesis shall consist of five chapters. Chapter II shall discuss an overview of the history and development of the concept of child rights and juvenile justice and international body of law that has developed in this arena. Chapter III will make an attempt to explain the national legal framework of Bangladesh governing juvenile justice including the Children Act and the Rules. 10 11

Writ petition no.7578/2003, 57 DLR (2005) 59 DLR (2007) 72

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This Chapter will also examine the other legal systems in this regard including that of Malaysia. Chapter IV shall examine the status of the children in conflict with the law and the current situation of Bangladesh in case of their arrest, detention, bail, probation, trial, sentence and other circumstances. Finally Chapter V shall contain the conclusion summarising the key principles of the separate regime for juveniles under the Children Act and shall outline what issues need to be addressed to move towards a justice delivery system for juveniles in Bangladesh.

Bibliography Books and Journal Articles Ahmed, Mohammad Bulbul and Islam, Md. Raisul, “Treatment of Juvenile Offenders: Bangladesh Perspective”, Bangladesh Research Publication Journal.2010. Vol. 4, Issue. 3, Pp 274-285.

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Ahmed, Mohammad Bulbul and Khan, Camellia, “Juvenile Justice System in Bangladesh: A Critical Appraisal”, ASA University Review.2010. Vol. 4, No. 1, Pp 225-237 at p. 232 Banks, Cyndi. (2002), Information Paper: Juvenile Justice in Bangladesh, CIDA. Chawdhury, Afsan. (2002), Our Children in Jail, Odhikar. Khair, Dr. S and Khan, S., (2000) Shoshur Bari, Street Children in Conflict with the Law, Save the Children UK, Dhaka. Khan, Dr. Borhan Uddin and Rahman, Muhammad, Mahbubur, (2008) Protection of Children in Conflict with the Law, Save the children UK, Dhaka. Malik, Dr. Shahdeen, (2008) Impact of State Intervention on Children in Conflict with the Law: Bangladesh, Save the Children UK, Dhaka. Malik, Shahdeen. (2004) The Children Act, 1974: A Critical Commentary, Save the Children UK. Rahman, Dr. Mizanur, (2008) Safe Custody of Children in Bangladesh: Thinking for a Better Alternative, Save the Children UK, Dhaka. Rahman, Dr. Mizanur. (2003), Tracing the Missing Cord: A Study on the Children's Act 1974, SCF-UK. Save the Children UK, (2004) My Childhood in Chains: Juvenile Justice and Violence against Children in Bangladesh. Siddiqui, Dr. Kamal Uddin. (2004) Concept Paper: The Age of Criminal Responsibility and Other Aspects of the Children's Act. UNICEF and Ministry of Law, Justice and Parliamentary Affairs, (1996) National workshop on review and implementation of Bangladesh Laws relating to Juvenile Justice and Children at Social Risks in the Light of the Convention on the Rights of the Child (CRC). UNICEF and Ministry of Women and Children Affairs, (2002) Assessment of the Training Needs of Police, Magistrates and Judges, and the capacity of Bangladesh Training Facilities in the Areas of Juvenile Justice, Protection from Violence, Abuse and Discrimination, Dhaka. UNICEF Innocenti Research Centre, (1998) Juvenile Justice, Innocenti Digest no.3, Florence, Italy. UNICEF Regional Office for South-Asia, (2006) Juvenile Justice in South-Asia: Improving Protection for Children in Conflict with the Law, Kathmandu, Nepal.

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Statutory Laws Acid Aporadh Daman Ain, 2002 Bangladesh Labour Act, 2006 Births and Deaths Registration Act, 2004 Children Act, 1974 Children Rules, 1976 Code of Criminal Procedure, 1908 Constitution of the People’s Republic of Bangladesh, 1972 Nari-o-Shishu Nirjatan Daman Ain, 2000 Penal Code, 1860 Probation of Offenders Ordinance, 1960 Special Powers Act, 1974 The East Pakistan Probation of Offenders Rules, 1971 Law Reports 3 BLD 193 29 BLD 656 11 BLT (HCD)(2003) 281 44 DLR (HCD) 500 47 DLR (1995) (AD) 96 57 DLR (2005) 59 DLR (2007) 72 59 DLR 520 60 DLR 660 International Instruments Basic Principles for the Treatment of Prisoners, 1990 Convention against Torture and other Cruel, Inhuman or Degrading Treatment, 1984 Convention on the Rights of the Child, 1989 Declaration on the Rights of the Child, 1959 Guidelines for Action on Children in the Criminal Justice System, 1997

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International Covenant on Civil and Political Rights, 1966 International Covenant on Economic, Social and Cultural Rights, 1966 United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), 1990 United Nations Standard Minimum Rules on the istration of Juvenile Justice (The Beijing Rules), 1985 United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules), 1990 United Nations Rules for the Protection of Juveniles Deprived of their Liberty (The Havana/JDL Rules), 1990 Universal Declaration on Human Rights, 1948

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