A COMPARATIVE STUDY ON JUVENILE JUSTICE: ADMINISTRATION IN BANGLADESH, INDIA and PAKISTAN.
INTRODUCTION
| M |
any one has been written about victim children, and children in need of care and protection, but very little about juvenile offenders who are the truly neglected children. The state machinery hides them in institutions where no outsider is allowed to tread, and leaves to their own devise with scant being paid to their well-being and rehabilitation.
A child is a part of the society in which he lives. Due to his immaturity, he is easily motivated by what he sees around him. It is his environment and social context that provokes his actions. In developing countries like Bangladesh, India and Pakistan, juvenile delinquency increases due to persistent poverty, unemployment, inequalities and changing values etc. This unwanted situation in the field of juvenile delinquency has drawn the attention of the sociologist, criminologist, psychologist, social workers and correctional workers and the public leaders. All of them have paid due attention to combat the juvenile offenders. Traditionally, 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. As a matter of fact, traditional criminal justice system is unable to combat this unexpected situation except making them habitual offender rather than rehabilitation of them. So modern social scientists think that the juveniles should be kept away from the courts where adults are put under trial.[1]
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 account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.[2]
To this end, one of the core requirements of States parties to the Convention of the Rights of the child is the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law.
In recent years, the issue of children in conflict with the law has become an increasing concern for Bangladesh, India and Pakistan, and significant reform initiatives are underway in these countries. In a bid to combat this ever increasing problem of juvenile delinquency, Bangladesh, India and Pakistan have already enacted separate legislations of their own relating to the custody, protection and treatment of children and trail and punishment of juvenile offenders. However, implementation of these special juvenile protections has been far from the compliance with the CRC and UN Guidelines.
In this paper, I have tried to make a comparative study among national juvenile justice systems, both laws and practices, which are assessed against the key requirements of the CRC and the UN guidelines on juvenile justice, but also to find out some ways which will help to make a radical change in the existing juvenile justice system of Bangladesh.
·Research methodology
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 with a multiplinary approach by keeping the phase of justice method and socio- economic variables in considerations,
The concept of Juvenile Justice Administration
In order to tackle juvenile offenders, everyone has to have sound knowledge on juvenile justice administration.
The juvenile justice system is the structure of the criminal legal system that deals with crimes committed by minors, usually between the ages of 10 and 18 years. But this definition is in adequate to give a clear idea on juvenile justice administration.
According to Edward Eldefonso[3]- the juvenile justice system is the functioning of the various segments that comprise the process. These segments include the police, the juvenile court, and correctional agencies (including probation, institutions and parole).[4]
The juvenile justice system is a network of agencies that deal with juveniles whose conduct has come in conflict with the law. These agencies include police, prosecutor, detention, court, probation, and the Department of Juvenile Corrections. Juvenile Justice involves legislation, norms and standards, procedures, mechanisms and provisions, institutions and bodies especially applicable to children up to the age of 16
Objectives:
The main objectives of the Juvenile Justice Administration would be to put due emphasis on the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstance of both the offenders and the offence.
The Beijing Rules adopted in 1985 has spelt out two most important objectives of juvenile justice under Rule 5. These are:
a. The first objective is the promotion of the well-being of the juvenile. This is the main focus of those legal systems in which juvenile offenders are dealt with family courts or administrative authorities but the well-being of the juvenile should also be emphasized in legal systems that follow the criminal court model, thus contributing to avoidance of merely punitive sanctions.
b. The second objective is "The principle of proportionality". This principle is well-known as an instrument for curbing punitive sanctions, mostly expressed in terms of deserts in relation to the gravity of the offence. The response to young offenders should be banned on the consideration not only on the gravity of the offence but also of personal circumstances. The individual circumstances of the offender (for social status, family situation, the harm caused by the offence or other factor affecting personal circumstances) should influence the proportionality of the reactions (for example by having regard to the offender's endeavour to indemnify the victim or to her or his willingness to turn to wholesome and useful life).
- WHO IS A JUVENILE
Who is a child? ; is a simple question but difficult to Answer. Because, this answer relates to a particular age limit which differs widely owing to history and culture. That’s why a man of a particular age may be termed as child in one country but not in another country. A juvenile is defined as a child or young person who, under the respective legal systems, may be dealt with for an offence, in a manner which is different from an adult.
The Beijing Rules[5] look to the nature of the punishment of the offence rather than the offender in determining who is a juvenile.
The Convention on the Rights of the Child, 1989 defines a “child” means any person under the age 18 years.[6]
In India and Pakistan child means a person who has not completed eighteenth years of age.[7]
The concept of child has given varied definitions by different Acts and Statutes in force in Bangladesh.
| Name of the Act | A child is a person who is under the age of |
| The Majority Act, 1875 | 18 years. |
| The Guardians and Wards Act, 1890 | 21 years. |
| The Child Marriage Restraint Act, 1929 | Boy- 21 Girl- 18 |
| The Suppression of Violence Against Women and child, 2003 | 18 |
| The Bangladesh Shrama Ain, 2006 | 14 |
| The children act, 1974 | 16 |
From the table it might appear to our mind that the laws of Bangladesh are neither neither provides a unique age limit to define a man as a child nor are in consistent with international standard. In thisregard the counter argument is-
1. Specific requirements of the concerned legislation rather than a holistic view guided the definition of child
2. Not to deviate too much from the prevailing norms.
Sec. 2(s) of the Draft Children Act, 2010 states a child is a person who is under the age of 18 years. The age limits is also fixed in the National Plan of Action.
Moreover the National Plan of Action, 2010 of Bangladesh provides everyone under the age of 18 is child. Lastly, the hope is that with the enactment of the Draft Children Act, 2010 all confusion relating to the definition of child will go away.
- WHO IS A JUVENILE IN CONFLICT WITH LAW
A juvenile offender is a child or young person who is alleged to have committed or who has been found to have committed an offence.5 the later JDL Rules amend this definition of juvenile offender. Section 2(l) of JJA 2000 has defined “juvenile in conflict with law” as a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence.
Sec 2(b) the JJSO, 2000- “Child offender” means a person who at the time of commission of an offence has not attained the age of eighteen years;
Sec 2(n) of the JJA, 2000 "youthful offender" means any child who has been found to have committed an offence.
Minimum Age of Criminal Responsibility
The domestic laws of all countries have laid down a minimum age below which a person is exempt from prosecution and punishment. The rationale for such exemption is the absence of mens rea, i.e., not to criminalize the acts of those who at the time of commission of the crime did not know the Article 40(3)(a) of CRC requires State Parties to promote “the establishment of a minimum age below which children shall be presumed Not to have the capacity to infringe the penal law”.
The age of criminal responsibility in India is fixed at 7 years by IPC.[8]
Section 82 IPC: “Nothing is an offence which is done by a child under seven years of age.”
Section 83 of IPC and PPC:
“Nothing is an offence which is done by a child above seven years of age and under
twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.”
twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.”
Under the Indian law children between 7 to 12 years of age having sufficient maturity and between 12 to 18 years who have committed an offence are responsible for their criminalist. But are not to be treated or sentenced in the same manner as an adult. Such children will be dealt with under juvenile legislation, and the focus will be on reforming and rehabilitating them.
Finally, I urge the Government of all countries to fix MACR at 13 years which will meet the international standard.
History of Juvenile Legislation:
Bangladesh[9]
The juvenile justice system in Bangladesh has its root in the laws enacted by the British rulers. The Bengal Code and Prisons Act, 1894 provided for separate trial for children and adults. The Reformatory school Act’ 1897 gave guidelines for reformation. The Code of Criminal Procedure, 1898 requires that the trial of children must be dealt with by the juvenile courts. The Bengal Children’s Act, 1992 contained the same provision. These laws were related to the custody, protection, trial and treatment of children. The Children Act, 1974 consolidated all the previous laws and it should be read together with Children Rules, 1976. The Act and the Rules have developed a mechanism to protect the child’s best interest during all kinds of legal processes. Lastly, the new Children Act, 2010 has been drafted.
India
The first legislation on juvenile justice in India came in 1850 with the Apprentic Act which required that children between the ages of 10-18 convicted in courts to be provided vocational training as part of their rehabilitation process. This act was transplanted by the Reformatory Schools Act, 1897, the Indian Jail Committee and later the Children Act of 1960. The Juvenile Justice Bill was first introduced in the Lok Sabha on 22 August 1986.[10] This Act came into force on October 2, 1987. This Act aimed at giving effect to the guidelines contained in the Standard Minimum Rules for the Administration of Juvenile Justice adopted by the UN countries in November, 1985.[11] Then the Convention on the Rights of the Child, 1989 adopted by the UN General Assembly, which provides minimum standard for protection of child and to provides certain rules on juvenile justice administration and requires the member States to enact a law in this regard. India has ratified this Convention on December, 1992 and therefore, it became expedient to re-enact the Juvenile Justice Act, 1986 to meet the requirements of the standard prescribed by the CRC and all other international instrument.[12]
Finally India has enacted the Juvenile Justice (Care and Protection of Children) Act, 2000. It is amended in 2006. It is central government legislation, implementation lies with the
State governments, which have powers to make Rules, establish Juvenile Justice
Boards, establish institutions, set up Special Juvenile Police Units, and develop
rehabilitation and social reintegration programmes. The National government has
issued Model Rules to guide the States in developing their own implementation rules.
Most States have either adopted the model rules or framed their own.213
State governments, which have powers to make Rules, establish Juvenile Justice
Boards, establish institutions, set up Special Juvenile Police Units, and develop
rehabilitation and social reintegration programmes. The National government has
issued Model Rules to guide the States in developing their own implementation rules.
Most States have either adopted the model rules or framed their own.213
The implementation of the JJA 2000 varies significantly from state to state. However
the process of drafting rules and promoting awareness on the new law has created a
significant amount of synergy and impetus for reform. To help promote the
implementation of the Act, the Ministry of Social Justice and Empowerment is
providing matching funds to States seeking to establish or upgrade institutions under
the JJA 2000.
the process of drafting rules and promoting awareness on the new law has created a
significant amount of synergy and impetus for reform. To help promote the
implementation of the Act, the Ministry of Social Justice and Empowerment is
providing matching funds to States seeking to establish or upgrade institutions under
the JJA 2000.
Pakistan
Following the ratification of the CRC, Pakistan took initiative to enact a juvenile justice legislation. In 2000, Pakistan introduced the Juvenile Justice System Ordinance (JJSO),344 with the intention of establishing a comprehensive, country-wide juvenile justice system. Prior to that, only two provinces- Sindh and Punjab - had separate juvenile justice legislation.345 The JJSO overrides the provincial laws to the extent that they conflict. ll provinces have now established rules under the new JJSO and are in the process of implementing them. In addition, ongoing law reform and review is underway to further improve the juvenile justice system. A new national Child Protection Law has been drafted, which would address both children in conflict with the law and children in need of protection.
In December 2004, the Lahore High Court struck down the JJSO on the grounds that it was “impracticable” and “unconstitutional”.[13] The judgment stated that the ban on the death penalty for juveniles led to children being used by adults to carry out capital offences. The court also commented that the choice of 18 for the definition of a juvenile was as “arbitrary.” It opined that the socio-economic conditions, “hot climate and exotic and spicy food” in Pakistan all contribute towards a “speedy physical growth and an accelerated maturity of understanding of a child in our society.” In 2006, the Apex Court gave validity to the JJSO.[14]
The juvenile justice administration is not alien to legal system of Bangladesh, India and Pakistan. This system is rooted in the Constitution of all these countries.
Constitutional Basis of JJA in Bangladesh:
Article 27, 28 and 31 of the Constitution lay down basis of JJA in Bangladesh.
Art. 27 declares that all citizens are equal before law and are entitled to equal protection of law.
Art. 28 empowers the Government to make special provision in favour of child.
Moreover, Art. 31 specially entitles a citizen to the right to protection by law.
Anyone to whom these provisions are known will have no doubt as to the validity of separate JJA.
Constitutional Basis of JJA in India:
Like Bangladesh Constitution, the Constitution of India contains provisions which gives legal basis to JJA. These provisions are-
Art. 14 provides the state shall not deny equality before the law or the equal protection of laws within the territory of India.
Art. 15(3) empowers the Government to make special provision in favour of child.
Constitutional Basis of JJA in Pakistan:
When the Government of Pakistan enacted the JJSO, 2000; its validity was challenged on ground of discrimination. The Lahore High Court failed to find out the real spirit of the Constitution of Pakistan and therefore banned the Act in 20004[15]. But in appeal, the Apex Court declared that the JJSO is valid and its basis is rooted in the Constitution.[16]
Art 4 provides citizens are entitled to equal protection of law.
Art. 25(2) allows the Government to make any law in favour of children.
Finally, it can be said that JJA has deep root in the Constitution of all these three countries.
Comparative Study
A comparative study on “Juvenile Justice Administration” is not an easiest task because it covers a broader areas including legislation, procedural matters relating to arrest, investigation, the Court and procedure of court, sentencing, rehabilitation of juvenile etc. This study proceeded with Bangladesh, India and Pakistan, the reasons behind this are all these countries belong to same legal system known as “Common Law System” and legacy towards to the British Colonial Rules is an absolute truth; and are in same mind set up to treat children.
In this study I have mainly focused on the juvenile justice procedure mentioned in Children Act, 1974 of Bangladesh; the JJA, 200o of India and the JJSO of Pakistan. This study is divided into following segments:
a) Juvenile Legislation
b) Jurisdiction and Scope
c) Police: Arrest and Procedure of Arrest. 
d) Bail and Pre-trail Detention
e) Court and Procedure
f) Sentencing
g) Diversion and Alternative Sentencing
h) Correctional Institutions and Condition in Detention
i) Probation Officer
j) Inter-agency Coordination, Monitoring and Reporting
k) Training and Capacity Building
l) Public Awareness and Advocacy
Each segment contains relevant provisions of the CRC and other UN Guidelines and relevant provisions of existing Laws in Bangladesh, India and Pakistan along with practical aspect; and finally followed by my personal assessment.
6.1 Juvenile Justice Legislation and Procedures
a) CRC and UN Guidelines
The core requirements of States parties to the CRC is the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law. The aim is to create a separate system of justice for children at every stage, distinct from the criminal justice system for the adults.[17]
b) Relevant Laws in Bangladesh, India and Pakistan
The justice system for both children in conflict with the law and children in need of protection are governed by the Children Act, 1974 and the Children Rules, 1976 in Bangladesh; by the Juvenile Justice (Care and Protection of Children) Act, 2000 and Model Rules, 2007 in India and by the Juvenile Justice System Ordinance (JJSO), [18] in Pakistan.
Practice
Bangladesh, India and Pakistan have separate legislation governing procedures for children in conflict with the law and children in need of protection without a differentiation between these two groups. And none of these three countries has established a fully separate system of justice for children that ensures they are separated from adults at all stages of the criminal proceedings. In Bangladesh a new Children Act, 2010 has been drafted.
In India and Pakistan, while the JJA 2000 and JJSO are central government legislation, implementation lies with the State governments, which have powers to make Rules, establish Juvenile Courts, establish institutions, set up Special Juvenile Police Units, and develop rehabilitation and social reintegration programmes. The implementation of the JJA 2000 varies significantly from state to state. Most States have either adopted the model rules or framed their own.[19]
Pakistan’s JJO 2000 is not a comprehensive legislation and it was adopted in a hurry to fulfill its international obligation in the field of juvenile delinquency.
Personal Assessment
My opinion is that India is far ahead from Bangladesh and Pakistan in enacting a comprehensive juvenile legislation. The hope is that the new Draft Children Act, 2010 contains many international standard mechanisms to combat juvenile offenders and it will improve the existing juvenile justice system of Bangladesh. Whereas, Pakistan has to walk a long way to improve its existing juvenile justice system. It has to enact a comprehensive law not to fulfill its international obligation but to provide justice to its future generations.
6.2 Jurisdiction and Scope
a) CRC and UN Guidelines
The CRC requires all State parties to establish special laws, procedures, authorities and institutions specifically applicable to all children in conflict with the law. A “child” is defined as a person under the age of 18. State parties must also establish a minimum age below which children are presumed not to have the capacity to commit a crime.[20]
The Beijing Rules, 1985 provides-
The 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.[21]
b) Relevant Provisions in Bangladesh, India and Pakistan
| Country | Current MACR | DoliIncapax[22] Provisions Age Range | Age up to which JSL Is applicable | Standard | Standard age limit to get benefit of |
| Bangladesh | 9 | 9-12 | 16 | Min. 13 Or more | 18 |
| India | 7 | Up to 12 | 18 | ||
| Pakistan | 7 | 12 | 18 |
Table-1: Status of the MACR and Related Age Provisions in Bangladesh, India and Pakistan
· Practice:
The MACR differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility. If the age of criminal responsibility is fixed too low or if there is no lower age limit at all, the notion of responsibility would become meaningless.
Table 1 show that all these three countries have fixed MACR, which is below than required level of the Committee on the Rights of the Child which is 13. Moreover, there are additional restrictions on the applicability of juvenile laws, and special protections do not apply universally to all children alleged to have committed an offence. In India, juvenile justice legislation does not apply in Jammu and Kashmir.[24] In Pakistan, it has not been extended to the Federally Administered Tribal Areas or the Provincially Administered Tribal Areas.
In Bangladesh, special laws override juvenile justice protections and children above 16 years could be subject to stringent laws which allow life imprisonment and death penalty.[25] But the Draft Children Act, 2010 brings every child less than 18 years within its ambit.
Moreover, children between the ages of seven and 12 are only criminally responsible if they are capable of understanding the consequences of their actions.214
Personal Assessment
My opinion, as regard MACR is that Bangladesh is ahead from India and Pakistan but it is below than international standard. Where India and Pakistan extend juvenile justice protections to all children under the age of 18 but in Bangladesh a juvenile is defined as a person under the age of 16.
6.3 Police: Powers of Arrest and Arrest Procedures
a) CRC and UN Guidelines
The CRC states that the arrest and detention of a child must be in conformity with the law, and should be used only as a measure of last resort. Children have the right to be informed promptly of the charges against them, and to have the assistance of their parents and a legal representative at all stages of the proceedings. They must not be subject to torture or compelled to give confession.[26]
They must not be subject to torture or other cruel, inhuman or degrading treatment or punishment, and their right not to be compelled to give testimony or to confess guilt must be guaranteed.15 The Beijing Rules state that, when a juvenile is arrested or detained, his or her parents must be notified immediately, or within the shortest possible period of time. In addition, any contacts between law enforcement agencies and a juvenile must be managed in such a way as to respect the legal status of the juvenile, promote his or her well-being and avoid harm to the juvenile. Specifically, police must not use harsh, abusive or obscene language or physical violence in their dealings with children.
In order to best fulfill their functions, police officers who frequently or exclusively deal with juveniles must be specially instructed and trained. In large cities, special police units
should be established for that purpose.[27]
b) Relevant Provisions in Bangladesh, India and Pakistan
In Bangladesh, the Police have wide discretionary powers to arrest children 100 under the Children Act, the Vagrancy Act 1943, and the Suppression of Violence Against Women and Children Act, 2000 on very broad grounds, including for prostitution, begging, being in the company of a “reputed criminal or prostitute,” being “likely to fall into bad association or to be exposed to moral danger,” or being a victim of crime.[28] Both children who have committed crimes and children in need of protection are processed through the police station and subject to involuntary detention in a remand home or other “places of safety.” Girls who have been victims of abuse and exploitation are particularly vulnerable to detention on these grounds, and are often sent to adults jails due to lack of appropriate facilities.[29]
In addition, Article 54 of the Code of Criminal Procedure, 1898 allow police to arrest anyone on the grounds of “reasonable suspicion” that the person has been involved in a criminal act. Street children are especially vulnerable to arrest either on “suspicion” or for having engaged in criminal activity. They are often targeted by adult criminal elements, and are easily lured with small amounts of money to engage in drug and arms carrying, and bomb throwing during political agitation.[30]
When a child has been arrested, the police are required to immediately notify both the
probation officer and the child’s parents or guardian.[31] However, in practice this is
generally not done, often because the police do not have time or resources to trace
parents.114 Furthermore, some police reportedly deliberately misstate the child’s age
on the charge sheet in order to avoid the added procedural bother that flows from
identifying him/her as a child.[32]
probation officer and the child’s parents or guardian.[31] However, in practice this is
generally not done, often because the police do not have time or resources to trace
parents.114 Furthermore, some police reportedly deliberately misstate the child’s age
on the charge sheet in order to avoid the added procedural bother that flows from
identifying him/her as a child.[32]
Children subject to arrest must be brought before the Court within 24 hours.354 although the Children Act states that children may be kept in custody at the police station only if arrangements are available to keep them separate from adults, in practice children are
often mixed with adults in police lock-ups.[33]
often mixed with adults in police lock-ups.[33]
The JJA 2000 of India calls for the creation of special juvenile police units to deal with children in conflict with the law and children in need of protection. Every police station must have at least one officer designated and specially trained as the “juvenile or child welfare officer.”218 The Act requires that every child apprehended by police be placed under the charge of the special juvenile police unit or the designated police officer who shall immediately report the matter to a member of the Board and he/she must, if not released on bail, be kept in an observation home pending appearance before the Board.[34]
States must frame Rules on the operation of the special juvenile. The Model Rules recommend prohibiting the use of handcuffs in the arrest of a child, and state that children should normally not be arrested between sunset and sunrise.
Pakistan- the JJSO provides children cannot be arrested under the provisions of the Criminal Procedure Code permitting preventative detention. The use of handcuffs and fetters is prohibited, unless there is reasonable apprehension that the child may escape from custody.[35]
Practice
To date, India is in the process of establishing, specialized juvenile police units and most Indian states require that police wear plain clothes when dealing with children. A study conducted by Parays in Bihar and Delhi found that only 4.3% of the designated
juvenile police had undergone juvenile justice training through either police academies or
NGOs, and only 35.2% in Delhi.[36]
juvenile police had undergone juvenile justice training through either police academies or
NGOs, and only 35.2% in Delhi.[36]
None of the countries offer alternatives to formal arrest as a means of initiating
proceedings against a child, or require that arrest be used only as a measure of last
resort. In most of the region, police have broad powers to arrest or apprehend children on a variety of grounds, including for status offences such as vagrancy or for being “incorrigible” or exposed to moral (Pakistan, Bangladesh, for prostitution and “on suspicion” (Bangladesh,).[37] Street children and child sex workers are particularly vulnerable to arbitrary arrest under these provisions.
proceedings against a child, or require that arrest be used only as a measure of last
resort. In most of the region, police have broad powers to arrest or apprehend children on a variety of grounds, including for status offences such as vagrancy or for being “incorrigible” or exposed to moral (Pakistan, Bangladesh, for prostitution and “on suspicion” (Bangladesh,).[37] Street children and child sex workers are particularly vulnerable to arbitrary arrest under these provisions.
Restrictions are placed on the use of handcuffs against children in India and Pakistan 18 and also in Sec 61(1) of the Draft Children Act, 2010 of Bangladesh.
No country has explicit restrictions on the use of physical force in the arrest of children, and there are continued reports of police corruption, illegal arrests, forced confessions and physical abuse of children during arrest or while in police custody.
A report of the NCCWD in 2001 revealed that 80% of the juveniles interviewed had been handcuffed on arrest, and physical abuse by police during arrest was common. Sixty- Eight percent said that police forced them to confess guilt.[38] Furthermore, police reportedly use false arrests to extort bribes from children and their families. Children from families who can pay bribes are released, while almost all of those that remain accused, arrested and detained are poor children and street children.
In all countries children cannot be held in police custody for more than 24 hours but in practice, this time limit is not always met. Children interviewed as part of the NCCWD study spent, on average, 17 days in police lock-up, ranging from one day to five months.356 Police contend that, in the absence of adequate facilities they are compelled to detain children in the jails with adults until they are brought to Court.[39]
In other cases, children arrested on suspicion spend lengthy periods in custody while police frame charges. A study by Odhikar in 2001 found that in Dhaka Central Jail, 7% of children arrested on suspicion under section 54 had been in custody for more than two years.[40]
A child is in police custody, he/she must be detained separately from adults is required in bangladesh.21 In India, children may not be detained in a police station at all, and must be taken immediately to an Observation Home.22 The JJSO does not contain any requirement that children be separated from adults whenever they are in custody or detention.
However, in practice due to inadequate facilities and lack of knowledge children are
are detained in cramped police lock-ups for days or even weeks is reportedly common. 23 Mechanisms to monitor police conduct and police lock-ups are weak throughout the region.
However, in practice due to inadequate facilities and lack of knowledge children are
are detained in cramped police lock-ups for days or even weeks is reportedly common. 23 Mechanisms to monitor police conduct and police lock-ups are weak throughout the region.
All countries require that the police contact the parents of a child who has been arrested, and must also notify a probation officer,[41] but it is merely a paper formality.
The Children Act does not contain any special provisions limiting the use of physical force, restraints or handcuffs in the arrest of a child, nor does it have any special provisions with respect to the taking of statements or confessions from children.
In early 2005, the Ministry of Home Affairs issued directives on police responsibilities regarding suspected child offenders which require police to note all children’s ages in red ink, to prepare separate charge and information sheets for arrested children, and to immediately notify a Probation Officer of the arrest.
Personal Assessment:
Here I find that, India meets many international measures relating to arrest and procedure of arrest like not to use handcuff in arrest, establishment of special police unit or even child welfare police etc.; though even in papers. While Bangladesh adopts some international standard mechanism in the Children Act, 2010 like prohibition on the use of handcuff, establishment of child welfare police etc., but it is yet to be enacted.
6.4 Bail and Pre-trial Detention
A) CRC and UN Guidelines
The CRC states that detention pending trial shall only be used as measure of last resort and for the shortest possible period of time.[42] The Beijing Rules states that, whenever possible, alternatives such as close supervision, placement with a family or in an educational or home setting should be used.[43]
In addition, the JDLs state that juveniles detained under arrest or waiting trial are presumed innocent and must be treated as such. Detention before trial must only be used in exceptional circumstances, and all efforts should be made to impose alternative measures. The detention at the pre-trial stage can only be used for shortest possible period of time and must be detained separately from convicted juveniles, and should have opportunities to pursue work and to continue their education or training.[44]
B) Relevant Provisions in Bangladesh, India and Pakistan.
The respective JJL of Bangladesh, India and Pakistan allows the police or the court to release a child on bail, even for a non-bail able offence[45]Notably, in Pakistan, for children under 15, the definition of a “bail able” offence has been extended to include all offences punishable with imprisonment for less than 10 years. The JJSO also includes provisions to limit the length of time a child may spend in pre-trial detention waiting for the trial to be completed, depending on the seriousness of the charges.[46] A child who is detained must be released on bail:
Ø for offences punishable by death, if the trial is not completed within one year;
Ø for offences punishable by life imprisonment, if the trial is not completed
within six months;
Ø for any other offence, if the trial is not completed in four months.
However, an exception is made to these time limits permitting the court to refuse bail if the child is over 15 and is involved in an offence which is “serious, heinous, gruesome, brutal, sensational in character or shocking to public morality” or s/he is a previous convict of an offence punishable by death or life imprisonment.
· Practice
The police have the authority to immediately release juvenile on bail, but are reportedly rarely used. The law itself places restrictions on their authority, stating that the police should not release a child if it will “bring the child into association with reputed criminals,” “expose him to moral danger”, or where release would “defeat the ends of justice.” These grounds are very broad and do not promote the minimum use of detention.
When a juvenile is not released on bail, the Court must place the child under the custody of a Probation Officer or a suitable person or institution, but shall not under any circumstances be kept in a police station or jail. In Bangladesh the Draft Children Act, 2010 allows police to release a juvenile on warning and by taking bond in presence of parent and probation officer[47] or if not released but it is not possible to bring him before the court that case the police shall release him.
Street children are particularly vulnerable to pre-trial detention, even if charged with minor offences. One magistrate estimated that roughly 30% to 40% of children are not
released on bail because their family is unfit or cannot be located. Bail is denied not because of the nature of the offence, but because there is no-one to take custody of the child.
released on bail because their family is unfit or cannot be located. Bail is denied not because of the nature of the offence, but because there is no-one to take custody of the child.
Personal Assessment:
As regard bail and per-trail detention, Bangladesh, India and Pakistan adopted many international standard measures but due to lack of training and failure to establish special police unit, all these provisions remain as mere paper formality.
6.5 Juvenile Courts and Trial Procedures
a) CRC and UN Guidelines
The CRC states that children alleged or accused of a law violation have the right to have the matter determined without delay by a competent, independent and impartial authority in a fair hearing. Throughout the proceedings, children have the right to have a parent present, and to have appropriate legal or other assistance and must be given the opportunity to express their views and to be heard in any judicial or administrative proceedings affecting them.
The Beijing Rules state that proceedings must be conducive to the best interests of the juvenile and shall be conducted in an atmosphere of understanding, which shall allow the juvenile to participate fully and to express herself or himself freely.
In addition, both the CRC and the Beijing Rules require that juveniles’ right to privacy be respected at all stages of the criminal proceedings in order to avoid harm being caused to them through publicity or by the process of labeling. No information that may lead to the identification of a juvenile shall be published.[48]
b) Relevant Provisions in Bangladesh, India and Pakistan
Establishment- A specialized Juvenile Courts or to designate a Court of Sessions or Judicial Magistrate to exercise the power of the Juvenile Court.[49] and Juvenile Justice Board comprised of a magistrate and two social workers shall be established.[50]
Sittings-When hearing juvenile cases, the Court should sit in a different building or room from the ordinary court sittings, or on a different day or time of day.[51] The Juvenile Court must not take up any other cases on the same day as a juvenile case. [52]
Procedure- Proceedings must be conducted in as simple a manner as possible and in a “home-like atmosphere. When being brought before the Court, children should not be under the close guard of a police officer, but should be permitted to sit in the company of a relative or probation officer. Confidentiality- The proceedings must be closed to the public and the media is prohibited from publishing any information that may identify the child unless the Juvenile Court specifically authorizes it.[53] No child can be tried with adult offender.[54]
Legal Assistance: In Pakistan, every child who is accused of an offence has the right to legal assistance at the expense of the State. In Bangladesh there is requirement that all children in conflict with the law have legal assistance, including free legal aid where required.[55]
Inquiry:
The JJA 2000 states that an inquiry must be completed the JJA 2000 states that an inquiry must be completed within a period of four months from the date of its commencement, unless the period is extended by the Board having regard to the circumstances of the case. Such inquiry must be conducted by the special police unit or by child welfare police.[56]
Magistrate:
In India, Magistrates appointed to the Juvenile Justice Board must have special knowledge or training in child psychology or child welfare.
Practice:
Juvenile justice legislation in India requires that fully separate juvenile courts be established, or provides the option of separate courts or designating specialized children’s magistrates (Bangladesh and Pakistan). In India children’s cases are to be heard by a panel that includes both a magistrate and social worker(s). No countries have introduced comprehensive child-sensitive rules of court; however legislation generally includes some provision to reduce the formality and intimidation of the courtroom. Even where separate juvenile courts have been established, they tend to replicate the same formalities as the normal courts. However, there have been some innovative practices, including the practice of some magistrates in Bangladesh (the Juvenile Court in Jessore ) of holding court proceedings in their chambers rather than the courtroom. In the Indian State of Tamil Nadu, State Rules require that Juvenile Justice Board proceedings be conducted like an informal conference, and that there be no raised dais or witness boxes. The magistrates have tendency to treat juvenile as adult and when juvenile pleas they like to convict them without paying attention in the report of the probation officer.
In all countries, juvenile proceedings should be closed to the public, and the publication of the child’s name is prohibited. Parents are entitled to attend proceedings in all countries, and can be required by the court to be present in Bangladesh, India. However, no country explicitly recognizes children’s right to express their views in the proceedings, and legal provisions in Bangladesh, India, and Pakistan permitting the court to dispense with the child’s attendance violates both the right to participate and the right to due process.[57]
While India requires that children be brought to court by plain clothes police or staff from the remand home, in Pakistan and Bangladesh children are transferred from detention to court in adult prison vans, sometimes in handcuffs, and are held in court cells waiting for their case to be called. While children have the right to a lawyer in all countries, including to free legal assistance if they cannot afford to pay, legal representation is not always provided.47 In these countries, children’s advocates and NGOs have been filling this gap by providing free legal assistance to children in detention.
Personal Assessment:
In establishing court, appointing magistrate, court procedure (child friendly), fixing time for inquiry etc, India is an example to Bangladesh and Pakistan in this regard. NGOs assisting the Government to ensure free and fair procedure.
6.6 Sentencing
a) CRC and UN Guidelines
The CRC states that deprivation of liberty shall be used only as a measure of last resort, for the shortest appropriate period. A variety of sentencing options, such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational training programmes and other alternatives to institutional care should be available to ensure that juveniles are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and to the offence. Neither capital punishment nor life imprisonment without the possibility of release shall be imposed on children under the age of 18.[58]
The Beijing Rules requires any reaction to juvenile offenders must be in proportion to the circumstances of both the offenders and the offence. Before imposing a sentence on a juvenile, the background and circumstances in which the juvenile is living and the conditions under which the crime has been committed must be properly investigated. Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response. Furthermore, in order to promote minimum use of detention, appropriate authorities should be appointed to implement alternatives, and volunteers, local institutions and other community resources should be called upon to contribute to the effective rehabilitation of juveniles in a community setting.[59]
b) Existing Provisions in Bangladesh, India & Pakistan and Practice
Upon finding a child, the Court/ Board may impose one of the following dispositions:
Ø Admonishment and discharge;
Ø Release on probation in the care of a parent or other fit person, and under the supervision of a Probation Officer for a period of up to three years;
Ø Commitment to a certified institution for a minimum of two years and maximum of ten years, but not extending beyond the age of 18 years (in Bangladesh) or direct the juvenile to be sent to a “special home” until he/she turns eighteen, or in the case of a juvenile who is over seventeen years, for a period of not less than two years (in India) or place the child in a borstal institution until 18 years or for the period of imprisonment stipulated for the offence, whichever is earlier ( in Pakistan)
Ø direct the juvenile to participate in group counseling and similar activities (India)
Ø If the offence is serious in nature or the child is “of so unruly or depraved of character” that he/she cannot be placed in a certified institution, the child can be imprisoned for up to the maximum time stipulated for that offence in the Penal Code ( in Bangladesh and India)
Ø order the juvenile to perform community service; (India)
Ø order the parent of the juvenile or the juvenile him/herself to pay a fine, if he is over fourteen years of age and earns money; (India)
Ø direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person for up to three years; (India)
Ø reduce period of imprisonment or probation in the case where the court is
satisfied that further imprisonment or probation is unnecessary (India and Pakistan).
satisfied that further imprisonment or probation is unnecessary (India and Pakistan).
When making an order under the Act, the Court must take into consideration the character and age of the child; the circumstances in which the child is living; and the report from a Probation Officer as to the child’s background and family history.[60] However, Courts do not consistently request these reports, and probation officers throughout the region generally lack the skills and resources to conduct comprehensive assessments. India’s strategy for overcoming this problem is to permit volunteers, generally social workers attached to NGOs, to prepare reports.
In Bangladesh, the Children Act does not include any statement of preference for non-custodial dispositions, and there are no guidelines governing the Court’s exercise of its sentencing discretion. The Act provides limited scope for non-custodial dispositions. In practice the Courts tend to impose custodial sentences, even for minor offences, since this is the easiest option. Probation remains under-utilised. [61]India provides the broadest range of non-custodial sentencing options. Placement under the supervision of a parent, probation officer or “fit person” are the most common alternatives or community service and counseling in India. In Bangladesh children may be imprisoned for non-payment of a fine, while India explicitly prohibits it.
The principles of proportionality and deprivation of liberty as a last resort have not been adopted anywhere in the region and institutionalization, both in law and in practice, is the primary tool used to rehabilitate children in conflict with the law, regardless of the seriousness of the offence committed. Even where alternatives exist in law, children are routinely subject to detention for minor. In Bangladesh, India and Pakistan, the length of time a child is committed to an institution is not proportionate to the offence or for the shortest appropriate period. Instead, legislation either stipulates a specific term that is applied to all children subject to a custody order (maximum 10 in Bangladesh), or imposes a presumption in favour of institutionalisation until the child turns eighteen (India, Pakistan). When applied to minor crimes, these terms are well in excessive of what the offence warrants, and harsher than what an adult would have received for the same crime. For example, while petty theft would rarely result in a prison term for an adult, in India a seven year-old who commits theft can be subject to deprivation of liberty for 11 years.
All children between the ages of 16 and 18 are subject to adult penalties (including life
imprisonment) in Bangladesh. In addition, children may be excluded from special sentencing considerations and subject to adult terms of detention if they are found to be
“unruly or depraved” (Bangladesh), or if they are 16 years or older and commit a serious
offence (India). Under these provisions, children as young as nine in Bangladesh are subject to life imprisonment.
imprisonment) in Bangladesh. In addition, children may be excluded from special sentencing considerations and subject to adult terms of detention if they are found to be
“unruly or depraved” (Bangladesh), or if they are 16 years or older and commit a serious
offence (India). Under these provisions, children as young as nine in Bangladesh are subject to life imprisonment.
In Pakistan, children who have reached puberty are subject to corporal punishment for certain offences under Islamic law.[62] The death penalty may be imposed on children between the ages of 16 and 18 in Bangladesh, since the Children Act protections apply only to children under 16. But, this situation may be changed with the enactment of the Draft Children Act, 2010. In Pakistan, children of all ages who commit crimes in the federally administered territories or under the Hudood Laws are subject to death penalty.
Personal Assessment:
In all countries, especially in Bangladesh and Pakistan, juvenile are often subject to corporal punishment including death penalty. The court has tendency to deter juvenile instead of moving towards other form of punishment like counseling, engaging them in social activities, send them to training institute etc. The Draft Children Act, 2010 of Bangladesh contains many alternative punishment methods.
6.7 Diversion and Alternative Sentencing
a) CRC and UN Guidelines
The CRC requires State parties to promote the establishment of measures for dealing with juveniles in conflict with the law without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.62 The Beijing Rules provide further guidance on diversion, stating that consideration shall be given, wherever
appropriate, to dealing with juvenile offenders without resorting to formal proceedings.
appropriate, to dealing with juvenile offenders without resorting to formal proceedings.
The police, the prosecution or other agencies dealing with juvenile cases shall be empowered to dispose of such cases, at their discretion and with the consent of the juvenile, or her or his parents or guardian, without initiating formal proceedings, in accordance with the criteria laid down for that purpose in the respective legal system and also in accordance with the principles contained in the Rules and such disposal must be subject to review by a competent authority. In order to facilitate the discretionary disposition of juvenile cases, efforts shall be made to provide for community programmes, such as temporary supervision and guidance, restitution, and compensation of victims.63
b) Relevant Provision in Bangladesh, India and Pakistan
None of the countries have as yet made, the concepts of diversion and restorative
justice as a core feature of juvenile justice legislation. None have established mechanism and criteria for children to be diverted from the formal system through police cautioning, mediation or some other form of informal dispute resolution. In Bangladesh many minor offences are resolved informally within the community through customary and traditional dispute resolution mechanisms. However, concerns have been expressed that many of these practices do not adequately protect the rights of children, including their right to participate in the proceedings and to be protected from harsh or degrading punishments.65
justice as a core feature of juvenile justice legislation. None have established mechanism and criteria for children to be diverted from the formal system through police cautioning, mediation or some other form of informal dispute resolution. In Bangladesh many minor offences are resolved informally within the community through customary and traditional dispute resolution mechanisms. However, concerns have been expressed that many of these practices do not adequately protect the rights of children, including their right to participate in the proceedings and to be protected from harsh or degrading punishments.65
The most common is to release the child under the supervision of a parent or probation officer, though some countries also include provision for counseling orders(India), community service work (India) and referral to a non-residential social institution ( India). However, throughout the region, very limited priority has been given to establishing the necessary infrastructure to make these options available and effective. The Daft Children Act,2010 of Bangladesh allows police or the court to resolve the matter through the process of alternative dispute resolution such as release on or without warning or by keeping under supervision or mandatory schooling etc.1 Sec 64 1
Throughout the region, there are numerous NGOs providing a range of innovative programmes that could be used to provide supervision and competency development to children on probation, including semi-custodial shelters, vocational training, peer educators/mentors, life skills programmes, non-formal education, etc.
However, in general, probation services in the region have not been geared towards an individualised case management approach and there are no clear mechanisms and
procedures for children to be referred to these programmes. There have been some
innovative government/NGO partnerships piloting non-custodial forms of rehabilitation,
but this is generally ad hoc, at the initiative of NGOs, and not based on a permanent, structured system for coordination between law enforcement and civil society.
However, in general, probation services in the region have not been geared towards an individualised case management approach and there are no clear mechanisms and
procedures for children to be referred to these programmes. There have been some
innovative government/NGO partnerships piloting non-custodial forms of rehabilitation,
but this is generally ad hoc, at the initiative of NGOs, and not based on a permanent, structured system for coordination between law enforcement and civil society.
Personal Assessment
Bangladesh would an exception in promoting alternative sentencing and diversion, the Draft Children Act, 2010 will enacted. But the problem is the provisions are made applicable to all offences which might hinder the ends of justice. Until then India will be treated as an example.
6.8 Correctional Institutions & Conditions in Detention
a) CRC and UN Guidelines
The CRC requires that every juvenile deprived of liberty must be treated with humanity and respect for their inherent dignity, and in a manner which takes into account the needs of persons of his or her age. Juveniles must be separated from adults in all places of detention. The JDLs set out a complete code for the care and treatment of juveniles deprived of their liberty, with a view to counteracting the detrimental effects of institutionalisation. The Rules promote the establishment of small, decentralised facilities for juveniles with nominal security. Children in detention must be afforded the same right to basic education as others, and should have access to vocational training and other meaningful activities. Emphasis is placed on promoting community contact through leaves of absence, outside schooling, and liberal family visit policies (in principle once per week). Rules should also be in place to ensure that children are not subject to corporal punishment, solitary confinement, or other cruel and inhumane punishments.
b) Relevant Provisions in Bangladesh, Pakistan and India
In Bangladesh, here are three (two for boys at Tongi and Jessore, and one for girls at Konabari) specialised institutions for the detention of child offenders, recently renamed Child Development Centres (KUK), which are under the responsibility of the Department of Social Services of the Ministry of Social Welfare.
These are large institutional centers (150-200 children each), and care for a mix of children in pre-trial detention, child offenders under the age of 16 who have been sentenced by the courts, and children voluntarily admitted by their parents for being “uncontrollable.” One new KUK is under construction in Joypurhat district, and three more are in the process of receiving approval. Each would have a capacity of 300.[63]
The KUK provide general education up to primary level and some vocational training.
Children also participate in weekly cultural programmes, sports and exercise. Each has at least one social case worker on staff to provide individual and group counseling and to promote behavioral development. The Centers are housed on quite large grounds, with gardens and facilities for outdoor games.[64]
Children also participate in weekly cultural programmes, sports and exercise. Each has at least one social case worker on staff to provide individual and group counseling and to promote behavioral development. The Centers are housed on quite large grounds, with gardens and facilities for outdoor games.[64]
Although the stated objective of these Centers is to promote the rehabilitation and reintegration of children, in practice they do not have the required skills or resources to fulfill this objective effectively, and have been criticized for being simply places of confinement. Concerns raised by various reports include:[65]
Ø The quality and quantity of food is insufficient;
Ø Vocational training programmes do not provide certificates of qualification and the necessary equipment is generally inadequate;
Ø While the KUK aim to provide an individual case management approach, they do not have adequately trained and qualified staff to fulfil this function;
Ø The emphasis remains on confinement, rather than rehabilitation;
Ø Following an escape attempt at Tongi, all of the boys were kept locked in their dorms 24-hours per day for several months and were not permitted to participate in schooling, vocational training, or recreation programmes;
Ø Corporal punishment and other degrading punishments are used in all the institutions, including beatings, hanging by tying hands with a rope, and handcuffing. Corporal punishment is officially sanctioned under the Children Rules, which permit “caning not exceeding ten stripes” as a punishment for violating any one of the 30 stipulated rules of conduct
Ø Many children have limited family contact, that children are permitted only two letters per month and two visits with parents per month. This limited privilege may be cancelled as punishment, or increased to one visit every 10 days on good behaviour[66]
Ø There is limited support for reintegration of children who are released;
Ø While some children are released from KUK upon turning 18, others are sent to jail for the remaining period of their sentence. This depends on the precise formulation of the judgement, and is generally unrelated to the seriousness of the offence.
The JJA 2000 of India, states that Special Homes are to be established by the State or voluntary
organisation for the reception and rehabilitation of children in conflict with the law. Most States have established one or more Special Homes and have established Rules for the certification and management of the homes.
organisation for the reception and rehabilitation of children in conflict with the law. Most States have established one or more Special Homes and have established Rules for the certification and management of the homes.
In some cases, Government/NGO partnerships arrangements have been established wherein NGO personnel are providing education, vocational training and other programmes in institutions that are managed and staffed by the government. The state of Andhra Pradesh has put into practice a scheme of co-management of the State's children's institutions with selected NGOs. In other cases, the State government has certified Special Homes that are fully operated and managed by a trusted NGO, with State funding support. This has reportedly improved the quality and range of services being provided to the children, since NGOs generally have specialised staff and are able to mobilise community involvement and volunteer professional services from doctors, lawyers, etc.[67]
Another concern is that, while the institutions have become more open to NGO involvement, the Rules themselves continue to promote an environment based on confinement rather than community contact. For example, under the Model Rules, a child is permitted a family meeting only once per month, and there are strict limitations on leaves of absence and other community contact. The Rules also do not include any restrictions on discipline and use of force against children in institutions. In terms of reintegration of children who have completed their term in a Special Home, the JJA 2000 makes provision for “after-care programmes” to assist them “to lead an honest, industrious and useful life.” While the Act is not specific with respect to what this involves, the implication is that after-care is also premised on an institutional approach.
The Model Rules make provision for the establishment of “after-care homes,” but do not provide guidance with respect to community-based after-care services. This discretionary additional three-year period of institution allocation is excessive and unwarranted.
The Model Rules make provision for the establishment of “after-care homes,” but do not provide guidance with respect to community-based after-care services. This discretionary additional three-year period of institution allocation is excessive and unwarranted.
The JJSO of Pakistan allows for the establishment of “Borstal Institutions” where child offenders may be detained and provided education and training. The use of handcuffs, fetters and corporal punishment against children in institutions is explicitly prohibited, and children may not be required to do labour. To date, two juvenile borstal institutions or training schools have been established - the Punjab Borstal Institution in Bahawalpur and the Youth Offender Industrial Schools in Karachi. Both are for boys, and there are no separate borstal institutions for girls. The Punjab Borstal Institution is governed by Punjab Borstal Schools Act and Rules, which require the schools to have adequate accommodation; proper sanitation; water
supply; food and clothing; means to provide industrial training; school facilities (general education and trades); and a hospital or infirmary. Children are to follow a strict daily regime of education, vocational training and work. Visits with parents are strictly regulated, once per month for 20 minutes, and are considered a privilege that may be withdrawn as punishment. Children who are not sent to these two institutions are detained in adult prisons. The
JJSO does not require that children be separated from adults in all places of detention.
supply; food and clothing; means to provide industrial training; school facilities (general education and trades); and a hospital or infirmary. Children are to follow a strict daily regime of education, vocational training and work. Visits with parents are strictly regulated, once per month for 20 minutes, and are considered a privilege that may be withdrawn as punishment. Children who are not sent to these two institutions are detained in adult prisons. The
JJSO does not require that children be separated from adults in all places of detention.
The Prison Act and Rules include several special provisions for the treatment of children under
the age of 18 who are in institutions. Juveniles should be placed in a separate juvenile ward, or if there is no such ward, they should be confined in a separate cell at night. For example, the Frontier Province has a separate Juvenile Circle in the Central Prison (Peshawar), the prison in Haripur has a juvenile camp located in Nathiagali, and in Balochistan, the juveniles are housed.
the age of 18 who are in institutions. Juveniles should be placed in a separate juvenile ward, or if there is no such ward, they should be confined in a separate cell at night. For example, the Frontier Province has a separate Juvenile Circle in the Central Prison (Peshawar), the prison in Haripur has a juvenile camp located in Nathiagali, and in Balochistan, the juveniles are housed.
Every inmate sentenced to more than one year must be provided an education course consisting of reading, writing and arithmetic for two hours per day.379 When a juvenile prisoner is due for release and requires assistance to settle in life, the Superintendent must send an initiation to the Secretary of the District Committee of the Prisoner’s Welfare Society one month prior to release.[68]
Practice:
In all countries, laws and/or prison rules require that children be separated from adults in all places of detention.[69] However, in Pakistan these protections are not available for girls, who are detained together with adult females. In India and Bangladesh there is a general prohibition on imprisonment of children (with stipulated exceptions), and children must be sent instead to a specialized juvenile rehabilitation centre. In India, Bangladesh, and Pakistan, children in conflict with the law are mixed in the same institutions with children in need of protection, including child victims of abuse and exploitation.
Each country has established one or more special juvenile rehabilitation centre. Those in Bangladesh and Pakistan are modeled on the old British “borstal” model, using a strict daily regime to rehabilitate delinquent and “incorrigible” children into productive citizens. Studies on the conditions of children in institutions in Bangladesh, India and Pakistan have raised serious concerns about the treatment of children in institutional care. For the most part, the main function of these institutions is containment, and most lack the necessary staff and resources to effectively promote rehabilitation and reintegration. Basic facilities are often poor and in disrepair, few provide education based on the core school curriculum, counseling is limited, and family visits are tightly restricted. Each country has a limited number of specialized juvenile institutions (two in Pakistan) which are not distributed evenly, resulting in children being transferred long distances from their families or detained locally in adult jails. Girls are particularly vulnerable because there are fewer specialized institutions for them. Due to prolonged periods of institutionalization and limited community contact, many children lack basic living skills and family/community support networks to reintegrate into the community after their detention period has expired. The response in India has been to introduce an additional three-year period of “after-care” institutionalization.
The use of corporal punishment and other degrading punishments is common throughout the region. Pakistan prohibits corporal punishment, handcuffs and labour. Furthermore, in Bangladesh and Pakistan children continue to be imprisoned in adult facilities, often with no separation from the adult population.
Bangladesh and Pakistan in particular have consistently high numbers of children in adult prisons. This has generally been attributed to a lack of sufficient special facilities for children, poor geographical distribution of children’s institutions, and lack of awareness on the part of police and magistrates. Some prisons have a separate juvenile ward where children are kept, however in areas where no separate facilities exist, children are placed in cells with adults, where they are subjected to physical and sexual abuse.
In India efforts have been made to improve conditions and services in institutions through the support of local and international NGOs. Through new legislation passed in 2000, India has introduced an innovative partnership approach for the management of children’s institutions. Under the law, State governments must establish special children’s homes on their own, or under agreement with voluntary organisations. This partnerships approach is being actively encouraged by the central government, and has shown considerable success.
One concern raised was that, while the JJA 2000 clearly differentiates between Observation Homes (for children subject to pre-trial detention); Special Homes (for children convicted of an offence); and Children’s Homes (for children in need of protection), in practice many homes are certified under one or more of these categories. This has resulted in the continued mixing children in conflict with the law with children in need of protection, thereby undermining the distinction the Act is trying to promote.
Overcrowding in prisons is a chronic problem, and nutrition and sanitation are poor. There are limited recreations facilities, most lack adequate facilities for education, vocational training, counseling and all convicted prisoners are required to perform manual labour. Although the Act states that they must not be allowed to associate with adult prisoners,[70] in practice this is not always respected. There have been numerous reported cases of children being subjected to physical and sexual abuse in jails. A 1994 medical report conducted on juvenile inmates of the Lahore District Jail revealed that 80% of the children were sexually abused, most of them repeatedly.385 Staff lack the necessary specialized training and skills to handle juvenile prisoners, and most had limited knowledge of the CRC and JJSO.[71]
In its Concluding Observations on Pakistan’s Second Periodic Report under the CRC, the UN Committee on the Rights of the Child expressed its deep concern at the high number of children in prisons, who are detained in poor conditions, often together with adult offenders and thus vulnerable to abuse and ill-treatment.[72]
The Draft Children Act, 2010 provides provision for establishment of the Child Welfare Board to which children will be sent if they need special care and protection.[73]
Personal Assessment:
There is lack of adequate quantity and quality of correctional institution. In India government and NGOs partnership correctional institutes make huge change in this regard. Bangladesh has to establish more correctional institutes having appropriate facility for education, sports etc. Moreover in Bangladesh rehabilitation of juvenile is given less importance than in India. So Bangladesh is required to provide quality education, vocational training etc to the juvenile, only then the rehabilitation of juvenile will be ensured.
6.9 Role of Probation Officer
He has to play a vital role in the juvenile justice system. The court or Board has to consider his report while handling juvenile offender. Duties of the Probation Officer are to visit or receive visits from the child at reasonable intervals; to scrutinize that the conditions of bond are fulfilled; to report the court as to the behaviour of the child; to advise, assist and befriend the child and, when necessary endeavour to find suitable employment and also include
a) to make inquiries about the child’s character, educational, social and moral background.
b) To attend the court and submit report.
c) Meet and give warning (if necessary) to the guardian or other person on whose care the child is placed, etc.
Practice in Bangladesh, India and Pakistan
The reality is that the juvenile court or Board does not pay much attention on the report made by the probation officer while imposing punishment on the juvenile. Moreover they are poor in number and have not properly trained to dealt with the juvenile offenders.
Personal Assessment:
The probation officer has, though not seen any country, to play a vital role in juvenile justice system. More such officers should be appointed. They must have knowledge on psychology of child.
6.10 Inter-agency Coordination, Monitoring and Reporting
A juvenile justice reform initiative is on-going in Bangladesh, India and Pakistan. However, a lack of clear strategic focus and inter-agency coordination mechanism has resulted in many interventions being disjointed and unsustainable. Following a Supreme Court judgment on children in detention in 2003, Bangladesh established a high-level, inter-agency National Task Force (NTF) tasked with improving the conditions of children in jail and to provide greater coordination across the justice sector. which is resulted in the draft Children Act, 2010.
Monitoring children’s rights in general and the rights of children in conflict with the law in particular, remains weak .In all countries, an agency has been designated to monitor implementation of the rights of the child, and to report on progress to the UN Committee on the Rights of the Child. In Pakistan, the National Commission for Child Welfare and Development (NCCWD), is established in 1980 to coordinate the implementation of children’s rights. However, data collection remains a challenge, and no country in the region has established a comprehensive set of juvenile justice indicator to monitor and evaluate the situation of children in conflict with the law.
India is introducing a web-enabled database to collect data on child protection throughout the country, and Pakistan has piloted the global indicators in selected provinces. The Human Rights Commission performs monitoring function. The lack of effective mechanism to monitor the treatment of children by police and in detention is cause for concern. No country in the region has a fully-functioning system to regularly inspect all places of detention. Judges and magistrates reportedly conduct regular visits to institutions in Pakistan, Bangladesh, and India, but this is largely dependent on individual initiative. In these countries some independent custody monitoring is conducted by national human rights commissions or by local NGOs such as Aparajeyo, BLAST and SCF-UK in Bangladesh, ECHO, Parays Safe Home etc. The Child Rights Commission is going to be established in Bangladesh.
Personal Assessment:
In all countries many monitoring organization like NTF in Bangladesh, NCCWD in Pakistan have been established to monitor and coordinate juvenile system in respective countries. In Bangladesh, a Child Commission is going to be established and it will be able change the existing juvenile justice system. Besides these, NGOs namely BLAST< SCF UK, Aparajoyo are working hard to make higher the juvenile system.
6.11 Training and Capacity Building
a) CRC and UN Guidelines
The Beijing Rules state that professional education, in-service training, refresher
courses and other appropriate modes of instruction should be utilized to establish and maintain the necessary professional competence of all personnel dealing with
juvenile cases.[76]
courses and other appropriate modes of instruction should be utilized to establish and maintain the necessary professional competence of all personnel dealing with
juvenile cases.[76]
Practice
Bangladesh
Currently, the existing curriculum offered through the Bangladeshi Public Administration Training Centre, Police Academies, Police Detective Training School, Bangladeshi Civil Service Administration Academy, Judicial Administration Training Institute, and law schools have limited or no component with respect to the Children Act and juvenile justice.[77]
India
Since the enactment of the JJA 2000, there have been significant and ongoing training and capacity building initiatives targeting all justice sector professionals. The central government has taken the lead in capacity building and has funded extensive training and sensitisation through the National Institute for Social Defence (NSID). Immediately following the introduction of the JJA 2000, regional workshops were conducted aimed at informing key State-level personnel of the provisions of the Act, and promoting the development of State Rules. NSID then developed a series of training manuals entitled Justice for Children for juvenile justice functionaries. A cadre of senior-level master trainers has been identified throughout the country to act as trainers and resource people for state-level training workshops. NSID supports three-day regional and State-level training workshops for members of the JJB and CWC, police, social welfare officers and probation officers, institution staff, and NGOs working in juvenile justice. NSID is also in the process of developing a one-month certificate course on Child Protection for personnel working in the juvenile justice sector, and is also developing a syllabus in juvenile justice for law undergraduates in the BL, LLB curriculum and Judicial Academies.
The National Judicial Academy has also played an active role in building the professional skills of magistrates and judges through its ongoing Juvenile Justice Training Programme. The Academy regularly brings together members of the JJBs and CWCs from all over the country for training and experience-sharing. Respected High Court Judges are invited as resource people, which lend weight to the proceedings and have greater impact on JJB Magistrates than NGO-facilitated training. The workshops have included some innovative inter-active training methods, including opportunities for to discuss and resolve barriers to implementation. One training session in Kerala involved an analysis of the juvenile court setting - participants went to observe JJB proceedings, then returned to the classroom where they analysed what they saw and discussed how to make the setting and procedures more child-friendly.
Capacity building initiatives have also been supported by numerous NGOs and INGOs
throughout the country, which have either conducted their own juvenile justice training for local professionals, or have contributed as resource people to the NSID training
programmes.
throughout the country, which have either conducted their own juvenile justice training for local professionals, or have contributed as resource people to the NSID training
programmes.
Pakistan
Currently there is no institutionalised and systematic training on juvenile justice
incorporated into the core curriculum at police academies, the Judicial Academy, jail staff training centres, and law schools.
incorporated into the core curriculum at police academies, the Judicial Academy, jail staff training centres, and law schools.
However, since the introduction of the JJSO, a significant number of training and capacity-building initiatives have been undertaken to raise awareness on the new provisions and to sensitise judges, magistrates, police, probation officers, welfare officers, jail staff and other officials on the rights of children in conflict with the law.
The Federal Judicial Academy, with the support of UNICEF, has conducted juvenile justice training for judges and magistrates throughout the country to familiarise them with the JJSO and international juvenile justice standards. In addition, UNICEF has supported a capacity-building initiative undertaken by the Sindh Journalists Network for major stakeholders in the juvenile justice system including judiciary, police, prison, probation, parole, social welfare departments and NGOs. Three-day training workshops were conducted in six districts for officials from different government departments. The workshops included a jail visit, and at the end of the session participants were asked to discuss the problems in the juvenile justice system and prepare suggestions to overcome these constraints. A comprehensive set of recommendations emerged with input from all stakeholders, including civil society.
In addition, the Consortium for Street Children, in partnership with AMAL, implemented a project on street children and juvenile justice. In 2003, a major assessment of the situation of street children was undertaken, which involved several consultative workshops with national and international organizations, ministries and law enforcing agencies, and street children. The objectives of these consultative workshops included raising awareness and promoting a better understanding of the rights, laws, policies and programmes for street children in the juvenile justice system, and developing realistic and systematic plans to addresses the issues. The key findings of the consultative workshops were then discussed in a national conference in Islamabad attended by more than 60 participants from different governmental ministries, NGOs and INGOs.This has helped to guide reform initiatives being undertaken on the various provinces.399 In addition to these juvenile justice-specific reforms, Pakistan is also in the process of implementing broader reforms to the justice system, including Justice Reform and Police Reform initiatives being supported by UNDP and the Asian Development Bank.
These capacity-building initiatives have reportedly begun to show some results in
terms of overall awareness and application of the JJSO. However, more sustainable,
systematic training and sensitisation will be needed to affect real change in the attitudes
and behaviours of judges, lawyers and police.
terms of overall awareness and application of the JJSO. However, more sustainable,
systematic training and sensitisation will be needed to affect real change in the attitudes
and behaviours of judges, lawyers and police.
Personal Assessment
Though, training institutions have been established to provide induction training and professional development to justice-sector officials, including police academies, judicial academies, prison staff training centers, bar councils, and law schools, but few of these institutions have incorporated national and international juvenile justice provisions into the core curriculum. Where children’s issues
are covered, very limited time is dedicated. Knowledge of national children’s laws is
generally low across the justice sector, and limited steps have been taken to make juvenile justice laws more accessible by translating them into agency guidelines, police protocols, court rules, judicial bench books and institution manuals.
generally low across the justice sector, and limited steps have been taken to make juvenile justice laws more accessible by translating them into agency guidelines, police protocols, court rules, judicial bench books and institution manuals.
In early 2005, the Ministry of Home Affairs of Bangladesh issued directives on police responsibilities regarding suspected child offenders which require police to note all children’s ages in red ink, to prepare separate charge and information sheets for arrested children, and to immediately notify a Probation Officer of the arrest.
In India, the central government has funded an extensive, nation-wide juvenile justice training programme through the National Institute for Social Defence, and the National Judicial Academy regularly brings together members of the Juvenile Justice Boards for training and experience-sharing. Respected High Court Judges are invited as resource people, which lend weight to the proceedings and have greater impact on JJB Magistrates than NGO-facilitated training.
6.12 Public Awareness and Advocacy
CRC and UN Guidelines
The CRC requires States Parties to undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.[78]
Children in conflict with the law are generally some of the most marginalized in society and tend to generate limited public sympathy. Public awareness activities can help influence community thinking about juvenile crime and foster support for more restorative, child-centered responses. In addition, providing children in conflict with the law and their parents with clear and accessible information about children’s rights within the justice process can help empower them to protect themselves from abuse or arbitrary action by justice sector officials.
Personal Assessment
All countries have undertaken public awareness on the rights of children and the CRC in general, but have not as yet undertaken focused awareness activities on
the rights of children in conflict with the law. In general, advocacy and awareness materials on juvenile justice have been targeted at justice sector officials, but not to the public at large. In Pakistan, NGOs such as SPARC and AMAL and children’s activists have been publicly campaigning on the rights of children in conflict with the law, and networking between child rights NGOs and the media in Bangladesh has resulted in an increase of media reporting on the plight of children in prisons.
the rights of children in conflict with the law. In general, advocacy and awareness materials on juvenile justice have been targeted at justice sector officials, but not to the public at large. In Pakistan, NGOs such as SPARC and AMAL and children’s activists have been publicly campaigning on the rights of children in conflict with the law, and networking between child rights NGOs and the media in Bangladesh has resulted in an increase of media reporting on the plight of children in prisons.
Recommendation: The Way Forward
The foregoing chapters quite convincingly establish the fact that the existing juvenile justice system in Bangladesh is far from the international standard. While the Children Act includes some important procedural protections, it does not provide a particularly sound basis for the development of a child-centered, rights-based juvenile justice system. The Act draws heavily from turn of the century British legislation, which placed primacy on formal court structures, legalistic responses and institution-based rehabilitation.
The attitude problem of police towards juveniles is not also a segregated problem but only a corollary of a deep rooted crisis. Children are also subject to adult sentences, including life imprisonment, from as young as nine, and there are no juvenile protections for children between the ages of 16 and 18. Since 2003, there has been significant momentum building for juvenile justice reform, and there is clear commitment to change at the highest levels. The draft National Social Policy on Alternative Models of Care and Protection for Children in Contact with the Law has signaled a clear policy shift towards diversion and community-based rehabilitation of children in conflict with the law. Numerous initiatives have been undertaken to improve police and court practices, and to promote non-custodial alternatives. However, many of these initiatives have been conducted in isolation, within geographically restricted areas and with limited strategic focus. The National Task Force has developed a list of priority issues to be addressed in the juvenile justice system, but there is no clear action-oriented plan. For reforms to be sustainable, they will need to be institutionalized within government structures, and incorporated into a holistic, strategic approach to reforming all aspects of the system.
In addition to the General Recommendations in this Paper, the following are recommended for consideration:
1. An Ombudsman should be appointed who must have power to investigate and make report on juvenile justice system.
2. The age to be determined as child shall be extended from 16 to 18.
3. The full-fledged application of the Children Act 1974 irrespective of other laws under which a child may be accused e.g. Special Powers Act or Control of Oppression of Women & Children or any other laws. In every respect a child should be tried in a juvenile court which must abide by the provisions in section 15 of the Children Act 1974. The Magistrate in disposing of the case must consult with the probation officers and lawyers especially skilled in juvenile affairs.
4. If possible, in every district there should be a Juvenile Court under the jurisdiction of a 1st class Magistrate to deal with the matter. When the research team asked about the feasibility of Juvenile Court in each district, all the magistrates and lawyers interviewed said, “If it is possible to establish Women and Children Repression Tribunal in each district it will be possible to establish Juvenile Courts also.” However, it may be required that the magistrate appointed in a juvenile court may also perform other child related issues like child labour, child abuse etc. If it is not possible to establish separate Juvenile Court in each district just now, then implementation of sec.4 should be ensured.
5. The establishment of juvenile court is not enough; the Judges Magistrates appointed to the court must have special knowledge or training in child psychology or child welfare.
6. In my opinion, name of the juvenile court has to be changed because everyone in our country has negative apprehension towards court especially dealing with crimes. It may be named as Juvenile Justice Council.
7. Ascertaining age is the main problem while dealing with juveniles. Lack of birth certificate and medical test has made the situation from bad to worse. According to sec.66 it is decided on the face of appearance of the child and the presumption of the judge. So, medical test system for determining age is to be introduced. Implementation of compulsory birth registration system is also necessary.
8. The Government has to take initiative to establish a special police unit until then, appointment of 1 or 2 police officers (IO) specially trained to deal with juveniles in every police station is expedient. They will work hand in hand with probation officers. While interviewing the juveniles coming in contact with law they should wear civil dresses. The jobs of the police should be well paid and proper incentives to these officers should also be given. Sec.48 of the Children Act lays down that where a child is arrested on a charge of a non-bail able offence and cannot be brought forthwith before a court the OC of the police station may release him on bail on security being guaranteed. The provision of this section should be exercised. Special Powers Act, sec.54 of Cr.P.C. etc. which empowers police to arrest on suspicion and generally involve less scrutiny and longer stays should be repealed.
9. Moreover the use of handcuff should be prohibited while police are dealing with juvenile comes in conflict with law.
10. Anew chapter on Pre-trial treatment of children (procedures on arrest, bail etc.) should be introduced in the Children Act. Child victims should be kept at remand homes and charitable organizations. Police custody should be the last resort. Safer alternatives to police custody are yet to be developed for child victims. Such alternatives can be provided in “shishu polli” established under Department of Social Welfare. Government may also share the burden of providing such shelter to the victim with the NGOs, keeping the main control on its own hand.
11. It is expedient to establish a co-coordinating and supervisory committee like Child Welfare Board in every district to supervise the works of the police, probation officer and magistrate. The committee may comprise of NGO activists, police, probation officer, social welfare officer etc. and chaired by DC of each district. There should be a central committee also to monitor the police activities in each district. Especially, the pre-trial contact of juveniles with police should be highly scrutinized so that the police themselves abide by the law. The police must be required to give separate charge sheet for juvenile offenders.
12. Demarcation of juveniles in the correctional institute on the basis of the age, crime, mentality should be made. The correction method is to be revised in accordance with the advice of Experts. The present correction method is rather punitive than reformative. Separate safety home should be established in every district for under-trial juveniles. Necessary provisions for the separation of children from adults at the pre-trial stage should be included in the Children Act, 1974. Rehabilitation of the juveniles released from correctional institute. as far as possible. For example- they may be trained under “Jubo Unnoyon Prokolpo” and financed by “Kormoshongsthan Bank” for self-employment. Effective and constructive follow-up and after-care services of juveniles should be admissible when they will return to their family and community. This can be achieved by the concerted efforts of the government, NGOs etc.
13. Consultation and participation of children in drawing up new laws should be taken into account. When any juvenile court has not been established in any local area, the concerned Bar Association can exert pressure to implement section 4 of the Children Act. The State (PP and APP) as well as concerned key persons should intervene regarding issues having involvement with juveniles kept in “safe custody” without legal representation. The Bar and Bench should be co-ordinated to prevent mal-practices by some lawyers. Bangladesh Bar Council may also take initiative to satisfy that the juveniles are properly represented in the court. Consciousness should be raised up through regular training and workshop on the child right and child psychology among the trainers of the correction centre, judges, magistrates, police officers, jail officers, prosecutors, probation officer, NGOs and other dealing with juvenile justice.
14. Adequate number of probation officers with handsome salary should be appointed specially for juvenile offence in every district. The probation officers should be deputed with sufficient power regarding investigation, trial and rehabilitation of juveniles. Practice of probation should be considerably increased.
15. Community leaders, local associations and religious institutions should also be involved in rehabilitation and correction of juvenile offenders and how to support vulnerable young people. Discussions and focus groups can show how communities behave towards vulnerable groups, street workers, street children etc. This knowledge is important for preventive and rehabilitative task. Young people from city slum areas and street children should be involved in discussions and debates that allow them to identify their problems and interests. Programmes may be conducted to intimate them of moral values, life styles, primary legal knowledge (such as conducted by Street Law Programme) survival strategies and priorities of children and young people.
16. Politicians should be motivated not to use children (especially street children) in hartals, agitation against opposition parties etc. Introducing measures of amalgamating civil remedies and criminal sanction which will compensate the exploited or victimized child in order to make exploitation of children unprofitable for the exploiter at the same time will provide the child an alternative for survival. A couple of package programmes may be adopted. The object of the programmes should be to find out the reason for committing offence. In this respect the Riyadh Guidelines provide a comprehensive review to prevent juvenile delinquency in a proactive way, through humanitarian services to vulnerable children. The Guidelines cover virtually every social area: the family, school and community, as well as the role of the media, social policy, legislation and juvenile justice administration. They focus on upgrading the quality of life, rather than prevention of committing crime in a “negative” sense.
17. Diversion i.e. non-judicial method of resolving petty disputes alternatives to imprisonment should be introduced. A different chapter on models of diversions has been included in the next chapter.
18. Legal aid should be provided to juvenile the NTF be designated as the key coordinating mechanism for all juvenile justice reforms, and that it limit its focus to core juvenile justice issues. Through a consultative process, the NTF should develop a detailed, strategic reform plan. The plan should set clear and measurable objectives identify main strategies and concrete activities that need to be undertaken to achieve those objectives, and designate responsible agencies and time-frames for completion. All ongoing donor and NGO-supported reform initiatives should be integrated into the reform strategy, with a clear strategy for how piloted initiatives will be integrated and sustained as part of the juvenile justice system.
Conclusion:
| I |
t is evident that there is a definite need for the progressive orientation of policies on juvenile justice towards decriminalisation, depenalisation, diversion and de-institutionalisation of children in conflict with the law. The juvenile justice system in its present state in Bangladesh has moved beyond the objective of public order and safety and become more engrossed with adult perceptions and judgement of juvenile behaviour. In a society where children are denied an equitable share of socio-economic opportunities, role of the state cannot be overstressed. The state plays a crucial role in the promotion and protection of children's rights even when they come in conflict with law. This responsibility of the state, recognized by the Constitution, has been formally endorsed by Bangladesh with the ratification of the Convention on the Rights of the Child (CRC). Although services by the state for children in Bangladesh cannot compare with those of developed countries.
It is high time for the Government of Bangladesh to put attention on juvenile issue and to take appropriate measures to tackle them. In this regard the govt. has to modify existing provisions dealing with juveniles and sets up a specialized police unit and magistrate having knowledge or training in child psychology or child welfare. Moreover it has to establish more correctional institutes and should give emphasis on rehabilitation of juvenile rather than punishing them. More probation officers should be appointed in every district.
In doing so, the government can take help from the NGOs either local (Aparajoyo, BLAST etc.) international (UNICEF) or from other donor groups.
At last we get the sunshine when the new Children Act, 2010 has been drafted which meets many international standard mechanisms concerned with juvenile justice system. Finally, I highly urge the Government to enact this Act as soon as possible and to enlighten the cloudy sky of Juvenile Justice Administration. Only then, children might be able to take the baton of prosperity from the present generation.
Mohammad Rayhan Uddin,
Department of Law,
LL.B. (Honors), LL.M. (9th Batch),
LL.B. (Honors), LL.M. (9th Batch),
Premier University, Chittagong, Bangladesh.
Cell No: +8801914676110
Cell No: +8801914676110
[1] http://www.bdresearchpublications.com/admin/journal/upload/09177/09177.pdf (last visited 15/3/11)
[2] The Convention on the Rights of Child, Art. 40(3) adopted by General Assembly resolution 44/25 of November 1989, Entry into force 2 September 1990.
[3] Supervisor, County of Santa Clara Juvenile Probation Department.
[4] Process & Impact of Juvenile Justice System, Glencoe Press, p 12
[5] United Nation Standard Minimum Rules for the Administration of Juvenile Justice,
[6] Article 1
[7] The Juvenile Justice Act, 200; Sec. 2(k), The Juvenile Justice System Ordinance, 2000; Sec. 2(b)
[8] Sec. 82 of the Panel Code of Pakistan and India
[9] Karzon, Sheik Hafizur Rahman; Criminology, Palal Prokashoni
[10] http://en.wikipedia.org/wiki/Juvenile_Justice_Act last visited
[11] known as Beijing rules.
[12] N.V. paranjape, Criminology and Penology, 14th Edition, by Central Law Publication, p 530
[13] Farooq Ahmed vs. Pakistan 20005 PLD LH 15
[14]2006 SCMR 1805
[15] Farooq Ahmed vs Pakista, PLD 2005 LH 15
[16] 2006 SCMR 1805
[17] supra note 2
[18] Ordinance No. XXII of 2000
[19] According to information provided by MSJE, as of August 2005, all but five states have finalized heir Rules, and those remaining five had made significant progress towards finalisation .
[21] The Beijing Rules) (1985), Rules 4(1)
[22] the age to constitute criminal intention
[23] Minimum Age of Criminal Responsibility
[24] India Juvenile Justice (Care and Protection) Act 2000, Section 1
[25] Public Safety Act 2000; Special Powers Act, 1974
[26] Convention on the Rights of the Child, Articles 39 and 40(2)
[27] The Beijing Rules,1985; Art. 10 & 12
[28] Children Act, Section 32
[29]Rights of Children in Bangladesh: Report on the implementation of the CRC in relation to Children in Conflict with the Law , World Organisation Against Torture, 2003
[30] Aparajeyo Bangladesh Annual Report, 2003
[31] Children Act, Sections 13(2) and 50, JJSO, section 10
[32] supra note 5
[33] Aparajeyo Bangladesh Annual Report, 2005; Chawdhury, Afsan, Our Children in Jail, Odhikar, 2002
[34] JJA 2000, Section 10, 12, 13
[35] JJSO, section 12(b)
[36] Juvenile Justice System and the Rights of the Child, Prayas Institute of Juvenile Justice, 2003
[37] Bangladesh Children Act, Vangrancy Act, 1943, Code of Criminal procedure,sec 54, and Suppression of Violence against Women Act, 2000; Pakistan Punjabi Youthful Offenders Act, 1952 and Sindh Children’s Act, 1955;
[38] Situational Analysis of Juveniles in Jail, NCCWD , 2001
[39] ibid
[40] Chawdhury, Afsan, Our Children in Jail, Odhikar, 2002
[41] Bangladesh Children Act, 1974, s.13(2) and 50; India JJA 2000, s. 12; Pakistan JJSO2000, s. 10;
[42] Convention on the Rights of the Child, Article 37
[43] Beijing Rules, Art. 13
[44] Rules for the Protection of Children Deprived of their Liberty, Articles 17 and 18
[45] Bangladesh Children Act, Section 48
[46] Pakistan JJSO, section 10
[47]Bangladesh the Draft Children Act, 2010, Sec. 63
[48] Convention on the Rights of the Child, Articles 12,15 and 40, Beijing Rules Art 18
[49] Pakistan JJSO Section 4, Bangladesh Children Act Sec 3 & 4
[50] India JJA, Sections 6 and 18
[51] Bangladesh Children Act, Section 7(2)
[52] Pakistan JJSO, sections 6 and 8
[53] Bangladesh Children Act, Section 9, 13 and 17, India JJA 2000, Section 21 and Section 19, Pakistan JJSO, sections 6 and 8
[54] Bangladseh Children Act Sec. 6
[55] Bangladesh Draft Children Act, 2010
[56] India JJA 200, Section 14, supra note 7, Sec 53
[57] Bangladesh Children Act, Section 11, India JJA 2000, Section 46
[58] Articles 37 and 40
[59] Articles 16, 17 and 18
[61] Dr. Kamal Uddin Siddiqui, Concept Paper: The Age of Criminal Responsibility and Other Aspects of the Children’s Act, 2004
[62] Pakistan Hudood Laws, 1979
[63] Juvenile Justice Administration and Correctional Services in Bangladesh, Department of Social Services, 2002
[64] Participatory Assessment of the Situation of Children in KUK, Save the Children UK, 2005
[65] Chawdhury, Afsan, Our Children in Jail,Odhikar, 2002
[66] Children Rules, Rule 22, 23, 24(e) and 24(4)
[67] Wernham, Marie, An Outsiders Chance: Street Children and Juvenile Justice - An International Perspective, Consortium for Street
[68] Cries Unheard: Juvenile Justice in Pakistan, SPARC, 1999
[69] India JJA 2000, s.15; Pakistan Prison Act and Prison Rules;
[70] Participatory Assessment of the Situation of Children in KUK, Save the Children UK, 2005
[71] Situational Analysis of Juveniles in Jail, NCCWD, 2001; Cries Unheard: Juvenile Justice in Pakistan, 1999
[72] Concluding Observations of the UN Committee on the Rights of the Child: Pakistan, CRC/C/15/Add.217, 27 October 2003
[73] Sec 8 & 36
[74] Bangladesh Children Act Sec31,
[75] India JJA, 2000, Pakistan JJSO Sec 9
[76] Articles 12 and 22
[77] Assessing the Training Needs of Police, Magistrates and Judges and the Capacity of Bangladesh Training Facilities, UNICEF 2002
[78] Article 42
