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CHILDREN IN CONFLICT WITH LAW: Juvenile justice system in Bangladesh

Nahid Riyasad | Published: 00:00, Dec 01,2019

 
 
Nahid Riyasad, juvenile justice system in Bangladesh, child’s rights, Bangladesh legal system, juvenile delinquency, Gazipur, Jessore, Children Act 2013

— Jayanto/Hindustan Times

Recently, trial of 121 children in mobile court and subsequent order from the High Court to release them on six months bail called for renewed attention to the juvenile justice system in Bangladesh. With the enactment of Children Act 2013, the legal system for children in conflict with law theoretically took a turn towards restorative justice, but in practice it is still rather punitive, writes Nahid Riyasad with Nafiul Alam Supto

ON OCTOBER 31, 2019 the High Court ordered to release all the children under the age of 12 from Gazipur and Jessore Children Development Centre who were tried in mobile courts. Simultaneously, the court also granted bail for six months to all those imprisoned by the order of courts other than designated children court. The order came following a report in a national Bengali daily on the same day. According to the report, mobile courts have illegally jailed 121 children to six months to one year and they have been kept in the CDCs in Tongi and Jessore. One child in Jessore facility was serving his time for child-marriage after being sentenced from a mobile court. In compliance with the court order, on November 25, 80 of the 121 children got their bail from child court and the rest were in the process.

Under the Children Act 2013, no court other than a juvenile court can try a child. In this regard, Rapid Action Battalion’s mobile court ruling would be considered as illegal. Therefore, the legal actions against 121 children raises serious question about the knowledge and regard for the Act among the law enforcement agencies. Their disregard called for a renewed attention to the juvenile justice system.

Children court and ‘development’ centres
WITH the enactment of Children Act 1974 and the Children Rules 1976, a legal system was institute to cater the youth and children in conflict or contact with law.  In 1976, the Children Act was enforced in Dhaka; later in 1980 it was enforced in other districts. The first juvenile court was established in Tongi, Gazipur in 1978 with a correctional facility for boys. At the time, there were no juvenile courts in the remaining districts. 

In 1990, when Bangladesh became a signatory to the United Nations Convention on the Rights of the Child, many international non-governmental organisations, as well as local human rights organisations started asking the government to amend the existing law to comply with the global best practice on child rights protection, if nothing else at least to establish Children Court and correctional facilities in other districts. Eventually, two other juvenile facilities were established at Phulerhat, Jessore in 1995 for male child and another at Konabari, Gazipur in 2003 for girl child.

According to the Gazette Notification dated June 23, 1999, the juvenile court of Tongi covers Dhaka, Chittagong and Sylhet divisions while the juvenile court of Jessore covers Khulna, Rajshahi and Barisal divisions. The Konabari juvenile court for girl child is covering all the seven divisions of Bangladesh. Later in 2013, the existing law was repealed with the Children Act 2013 — a move that was considered a departure from punitive approach to juvenile delinquency.

The notice of board at Child Development Centre (Boys) in Tongi showed that on September 22, 2019 the facility had 902 inmates which significantly exceeded their capacity of housing 300 children. — Child Development Centre (Tongi)/Facebook 

 

Children Development Centres today
A CHILD in conflict with law does not come to the CDC right away. Rather, after a child is arrested, s/he is kept in police custody and produced before the court and sent to the nearest jail for the time being. When that child is sent to the CDC, the authorities create a file for the child and look for the child’s parents or closest relatives. The CDC then provides legal aid to the child by appointing a lawyer, if needed.

During the field visit to Children Development Centre in Tongi, Gazipur on November 26, New Age Youth talked with Sagir Mia, a banana vendor from Bhairab, Comilla. He related his ordeal as he could not trace his son, Mehedi for several months.  All he had a cell phone number of the arresting police officer, but that number was unreachable for the most part since he got the news of his son’s arrest. For several months, he could not track down his son and meet him after he came to know that his son was arrested. Sagir could not confirm the crime for what 12-year old Mehedi was arrested.

Later on that day, when the visiting hour came, Sagir met his son for the first time since his arrest. Despite Sagir’s economic-marginality, a bottle of mango juice and two large packets of bakery biscuits, which he bought from an adjacent shop after learning Mehedi is indeed here, were expressing his love for his son.      

The development centre in Tongi is designed to accommodate 300 children, but as of November 26, there were 897 inmates in the centre coming from 33 districts. During a conversation with K M Obaydullah Al Masud, the probation officer of the CDC, New Age Youth come to know about the challenges of the centre, as well as their work procedures.

Any ordinary day of the children in the CDC starts with a mandatory morning assembly at 9:00am. All the case workers and councillors attend the assembly and deliver motivational speeches. After that comes the group counselling session. There are 7-8 social case workers who also double as councillors. Children are divided into groups and attend their sessions by rotation that takes place at least once a week for every child.

The facility also has primary schooling from class 1-5. The authority’s asses the level of education of the children and admit to a class according to their standing. Those who have already passed the primary education are enlisted for the library section. Masud said that they have a rich library which gets regular supply of books. As a result, those who can read and write have the option to study according to their own interest. ‘There are a lot of readers who are regular in the library and they can read at their will which helps them to learn more on their preferred area’, he said.

‘In a lot of instances, we have collected order from the court if any of our children wish to sit for SSC examinations and in every session, a number of children attend and pass their board exams from here,’ Masud added.

The centre also has vocational training programmes, ‘Right now, we are conducting courses on computer, carpentry and tailoring. We used to offer automobile training too, but our instructor died a couple of months ago, and the post is vacant right now,’ Masud informed.

New Age Youth contacted Musfiqur Rahman, psycho-social councillor at the Jessore CDC. He also expressed the same concern that the Jessore CDC is also holding more children than their capacity. As of November 27, the Jessore CDC has 357 boys against their 150 seats. Inevitably, children at the facility live in a crammed and crowded situation.

In both the centres, the children have to share playgrounds. In the Tongi CDC, there is a large playground for the elder children and for the younger ones, there is a small field. Due to the overflowing numbers, they have to play in groups and one might have to wait a whole week to get their chance again to play and that too is for a mere one hour per shift.

Same condition is prevailing in Jessore CDC where 10-12 children have to share a room designed for 5-6 people. Currently, they are offering electrical, automobile and tailoring science however their electronics instructor post is vacant at the moment.

The facility in Jessore is overcrowded because it is the only centre outside of Dhaka. The one in Dhaka however is crowded because of legal bureaucracy. On September 17, 2017, Gazipur Metropolitan Police started its operation as the seventh metropolitan police department in the country and with that came added responsibility. As the CDC depends on local police force for their logistics, the upgrade has created serious crisis for the CDC as the local police authorities can no longer provide them with the necessary support for processing cases of children in conflict with law.

‘On average, 300 children come to our facility and 260-270 children get their bail every month. The remaining 30-40 children remain in the system every month because of the lack support from the forces, as we cannot produce the children in court for their hearing. We have held talks with the police authorities several times and are working to overcome the situation,’ said Masud.      

—      Source: Justice Audit Bangladesh 2018

Common juvenile offenses and a worrying turn
BUT what are the crimes that the children in Bangladesh generally involved in that brought them to these centres. According to the Justice Audit Bangladesh 2018, juveniles serving time are convicted for their involvement in murder, drug, theft, crime against children and women, and kidnapping. For some children, they are placed here as safe custody. The data available through the Justice Audit does not reveal much in term gendered nature of criminal behaviour of boys and girls.

The Justice Audit 2018 reveals that, in the Tongi CDC, as many as 81 inmates among 384 were charged under the Women and Children Repression Prevention Act counting to 21.4 per cent. On the other hand, in Jessore CDC, among 213 inmates, 51 were there under the same law resulting to a 25 per cent, a full quarter of the inmates. A media report from 2017 shows that, of the total children living in two facilities in the country for boys, 20 per cent were accused or convicted for murder and 24 per cent were accused in rape or other sexual crimes. Similar trends are observed today.

During the field visit New Age Youth had a chance to talk with parents of such children who were involved in sexual crimes. Muhammad Arif Mia is a 11-year old boy who is currently at the Tongi CDC. His uncle Mustafa Mia accompanied Arif’s mother from Gaibandha to Dhaka and said, Arif is accused of raping a four-year old girl near his workplace in Dhaka.

Rafiqul Islam is another inmate of the Tongi CDC. His mother Saleha Khatun is either uninformed or reluctant to share the crime her son has committed, but Saleha’s brother put in the rest of the information that Rafiqul (12) is the third-accused in the charge sheet of a rape case. The victim was a student of their school located in Dokkhinkhan area of Dhaka.

The age of the accused and the nature of the crime is a matter of serious concern.

This statistics is suggestive of a worrying fact that boys are growing up in a social environment in which rape is not considered offense. To get a perspective on the data, New Age Youth contacted experts who have been working for child rights and juvenile delinquency for a long time.

Social and economic background is an important factor while dealing with juvenile delinquency because a large portion of the children delinquents come from economically marginalised families. Nina Goswami, senior deputy director of programme at the Ain-O-Shalish Kendra indicates such crime might derive from an exposure to sexual activities at a very early age.

‘From my experience, a lot of juvenile delinquents come from economically impoverished families where as many as 10 people often share a room. This exposes the children to sexual activities of adults from an early age. On top of that, quality monitoring of the children is often absent in such families,’ she said.

Nina further stressed, ‘If we can control children’s exposure to sexual activities, in both real and virtual life, as well as monitor them accordingly besides providing them with sexual education from an early age, we will be on the right track to address the situation.’

Rafeza Shaheen, child rights programme co-ordinator of Manusher Jonno Foundation thinks that this alarming tendency among children are reflection of the unequal power structure in the society and such crimes are more about power practice and less about sexual gratification.

‘In the current power structure, the more powerful abuse the less powerful and this practice is prevalent in our social fabric. Now, in this context, a child moves on to showing power over another to gain gratification and a male child shows power over a girl child with whatever he has; this is less about meeting sexual demand and more about power practice.’

When asked about what steps must be taken to address the issue, Rafeza indicates a two-fold solution which involves both the family and the state. ‘The first, we have to ensure a sound environment for the child to grow up which means proper care and monitoring from the family. The second, and this is the responsibility of the state, school curriculum should involve sex education and how we should address this to make the children understand about the importance of consent and ethical sexual practice because it is important to communicate such issues from an early age otherwise more and more children would get involved in sexual crimes.’

Punitive or restorative justice?
THE Children Development Centres for children in conflict with law has miles to go before it could truly become a place for spiritual, psychological and social development. What the law offers is not guaranteed in practice for its punitive approach and lack of resources. Setting aside the reported allegation of physical and mental torture, the bare minimum support for a child to reflect on the event of crime is still missing. The over-crowded living space, lack of comprehensive psychosocial support and an inspiring learning environment promise very little for the children. In some ways, these centres are nothing but jails for children and to sanitise the language, the term development is used rather than the word correctional. However, the 15-feet high walls and huge iron-gate which is always locked separating the Tongi CDC compound tells a different story. It is not surprising then the families of the inmate refer it as prison — ‘CDC is a jail.’

It is unfortunate that 47 years after the independence, the juvenile justice system is far behind in meeting the global standards. Mere punitive measures are nowhere near effective in curbing the number of child delinquents. As rights activists Rafeza Shaheen asserts, ‘We are still in an immature stage in handling juvenile justice and we are lacking behind in policy making on this issue which is a major reason for the high rate of child delinquents.’

The problem of the punitive approach is that it largely sees the individual child responsible for the crime. The socio-economic context in which a child becomes susceptible to committing a crime is not considered in this system. Experts have for long said that the imposed punitive consequences have the effect of shaming and stigmatising the child who have caused harm and committed crime, while restorative processes offer an opportunity for children delinquent to understand the source of their behaviour, take responsibility for their choices, and to learn and grow from the experience. It also creates room within the system to see the crime in the social context. The CDCs in Bangladesh have only rhetorically adopted restorative justice; in practice it is lenient towards a punitive system.

Nahid Riyasad is a member of the New Age Youth team.

How a juvenile delinquent is treated in the Children Act 2013?
Juvenile justice is a key component of the child rights in terms of upholding their best interests when they come in contact with the legal system for their involvement with crime. Children need to be treated separately from the adults in the matters of investigation, trial and correctional process. It is regarded that throughout the process of justice for juveniles they must have the support of the state, family and the community in protecting their rights.

Recently the High Court ordered the authorities concerned of the government to immediately release the children under 12 years, who were convicted by the mobile courts on various times and kept in the Children Development Centre. The High Court order brought the issue of juvenile justice system in Bangladesh to fore again. In this context of renewed attention to issue, it is important to revisit the Children Act 2013.

In 2013, with the aim to comply with the international child rights protocol, the government repealed the Children Act 1974. The drafting of the Children Act 2013 was particularly focused on ensuring the provisions of the United Nations Convention on the Rights of the Child, but also decisions of Bangladesh Supreme Court in cases like The State vs Rowshan Mondal , 59 DLR(HCD) 72, Bangladesh Legal Aid and Services Trust and another vs Bangladesh & others, 7 BLC 85, Md. Shamim Vs. The State, 19 BLD etc.

Under the 1974 Act, two juvenile Courts were established, but the new law requires that at least one ‘Children’s Court’ be established in each district headquarter and metropolitan areas, which has the exclusive jurisdiction to deal with children in conflict or contact with the law.  The Section 4 of the law defines a child as anyone up to the age of 18 years. It needs to be underscored that the minimum age of criminal responsibility continues to be 9 years of age, which is below the minimum age of 12 years or higher recommended by the UNCRC.

The Section 10 introduces a new provision giving the responsibility to the ministry of home affairs for the establishment of a ‘Child Affairs Desk’ headed by a ‘Child Affairs Police Officer’, not below the rank of sub-inspector. Such provision can surely safeguard the accused juvenile from procedural complexity with regards to protection of children rights. According to the Act, whatever the circumstance is, child aged below nine cannot be arrested. If a child above nine is being arrested, law enforcers cannot handcuff them or put a rope around waist to the child. The Section 19 talks about the arrangement of the children’s court. The decoration and seating plan of the court room are to be prescribed by rules, ensuring that during the proceedings the child’s parents or, in their absence, the foster parent, guardian or member of the extended family and the probation officer and his lawyer shall, so far as possible, sit near him.

The court shall arrange for appropriate seating for the child and in case of a child with disabilities, where necessary, provide special seating. While the trial of a child is continuing, the lawyer, police or any other official present in the court shall not wear any professional or official uniform.

The act further says, when passing any order the court shall consider the child’s age and gender; her/his physical and mental condition; her/his qualification and level of education; her/his social, cultural and ethnic background; the family’s financial condition; the lifestyle of the child and her/his family; reasons for her/his commission of the offence, information regarding gang formation and overall background and surrounding circumstances; the child’s opinion; a social enquiry report and other ancillary factors that are expedient or are required to be taken into consideration in the best interest of the child and her or his correction.

The 2013 Act also introduces the concept of restorative justice. Restorative Justice is a theory of justice that emphasizes repairing the harm caused by criminal behavior. This provides for compensation to a child who is a victim of crime. According to Section 38 of the Act, the court may order any person found guilty of an offence committed against a child to pay compensation to the child on an application by the child or the child’s legal representatives. This provision of reimbursement specifically entitles a juvenile who is a victim of an offence, to ask for monetary remedy.

As per the Act, it states that the police officer or juvenile court can look for alternative preventive measures during any stages of the formal judicial system. It has also been mentioned that there will be a monitoring process to check whether the directed alternative measures have any positive impact on the child’s behaviour. The Act proposed for highest five years imprisonment and taka one lakh fines for any cruelty on children, as well as giving a guideline for bringing up the children in an enabling atmosphere. Responsibility of media is also mentioned in the Act. Where it says media is prohibited to publish articles, photographs and information that go against a child under trial in this Act.  This Act encourages family-based care and protection considering best interest of the child and meaningful child participation.

Child friendly judicial proceedings are the main gist of the law, but the implementation is weak.  The absence of new rules or guidelines and lack of coordination among concerned agencies made it difficult for a judicious implementation of the law. The articles 27, 28 and 31 of our constitution lay down the general principles regarding the protection of children and other citizens from all forms of discrimination. Thus, children have the right to be treated with human dignity in all situations including those which involve arrest, detention and trial for offences.

Nafiul Alam Shupto is a student of North South University

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