Traditional Means of Dealing with Children in Conflict with the Law with Specific Reference to Bangladesh:

Bringing Juvenile Justice into Focus

Nacela Sattar and Gopalan Balagopal, UNICEF Dhaka

Overall context

In a population of over 120 million, 47 percent are below 15 years of age. The vast majority live in the rural areas. There are no studies on criminality and how criminal or deviant children are dealt with. Official interventions are rare. Juvenile crime accounts for only 2 percent of the relevant judiciary time. Prisons with room for 300 children nationwide had 311 children in December 1996. There were two correctional homes for boys, with capacities of between 150 and 200 inmates in August 1996. Of these inmates, only 20 percent were involved with criminal offences.

There are an estimated two million street children. Urban immigration and the degeneration of family and community bonds contribute to problems. Girls are often victims of trafficking and sexual exploitation.

Less than 3 percent of births are registered, obfuscating precise data on juvenile justice. Officially, there is no recognition of juvenile offences as a national problem.

Why this case study?

The study indicates, through specific examples, how the current system is inadequate for the protection of the rights of children in conflict with the law. It outlines the first steps initiated by UNICEF-Bangladesh for focusing on juvenile justice issues, building partnerships and identifying priority issues.

Specific objectives

The aim is to build commitment at the top policy level (law minister, senior officials), create sustainable systems for the training and sensitization of police, the judiciary, prison authorities and probationary services, evaluate existing laws in terms of the standards of the Convention on the Rights of the Child, prioritize action for the amendment of laws and create a plan of action for juvenile justice in the future.

Participants

The participants include the minister for law and justice, senior officials of the Ministry of Law, the police, prison authorities, young people and students.


Children Involved with the System of Juvenile Justice:

A Forgotten Agenda in Bangladesh

Nacela K. Sattar and Gopalan Balagopal

1. The context

Polapan Manush, na buijhya korse (small child, didn't understand what he did) is a common perception signifying that children who commit offenses should be forgiven. The blanket of innocence in traditional rural Bangladesh has been rudely lifted by the cruel hands of changing reality. The predominantly agrarian society where children were as much a part of nature as the rivers and the paddy fields, where the young were protected as naturally as the mother hen shields her brood is fast disappearing. The loss of arable land through population explosion, erosion, land degradation and natural calamities has resulted in mass-scale destitution and urban migration. Children with or without families have flocked into cities where they live in subhuman conditions in the streets and slums. Vulnerable to almost any kind of exploitation, these children are inducted into a life of criminality or used by adults to satisfy their criminal ends. No one knows with any degree of accuracy how many of these children there are or how old they are. Lost behind the iron bars of the jails in Bangladesh or tucked away in a suburban correctional home, the children who have come into contact with the juvenile justice system are usually forgotten by mainstream society. The laws, the procedures, the special facilities, all perceived by colonial rulers in the context of the concerns back in their own countries largely turn out to be irrelevant in the protection of the rights of these children.

Not so long ago it might have been very difficult to convince authorities that children who commit crimes also have rights. But there are signs that things are beginning to change. The ratification of the Convention on the Rights of the Child in 1990 has been the major turning point. A process for focusing on the rights of children who come into conflict with the law has begun. The process has not been easy. This case study portrays the situation of such children and describes an initiative taken primarily by UNICEF-Bangladesh in stimulating this process of change.

2. Objectives of the initiative

3. Methodology

3.1 Assessment of baseline studies

Before the intervention of UNICEF in Bangladesh, local and international NGOs paved the way in this unexplored area with some baseline studies. In 1992 a study was conducted on "Children in the Prisons of Bangladesh" by Rädda Barnen. This study indicated that the official estimates of children in jails were much lower than the number actually in jails. The condition of these children in terms of facilities and assistance was far below acceptable standards. The "rights" issue was not addressed in this study.

The second study "A Critical Review of the Judicial Institutions in Relation to the Rights of the Child" was completed in 1995, also by Rädda Barnen. The study found, inter alia, that, among the primary implementors, there was a lack of attention and awareness of the seriousness of the situation and ignorance of the main legislation on juvenile justice, the Children Act 1974, and the related rules framed in 1976. It revealed the vast potential of an existing correctional home for boys in Tongi near Dhaka that had been operating since 1978 and did away with the myth that it was not worth investing in this area which concerned only a handful of children. It also exposed the limited use and occasional misuse of the system and facilities due to ignorance, improper orientation, lack of logistics and fund constraints.

UNICEF supported a local NGO in 1996 so that it could conduct yet another study assessing awareness of the concepts of community-based rehabilitation and community perceptions of crime and punishment and reassessing the potential of the correctional home for boys in Tongi. The study, "Children in Conflict with the Law: Dhaka City", pointed out that parents rely on institutions as the best places for correction and reform, taking into account the standard of living and the uncongenial environment in which the majority of people live.

3.2 Partnership with the Government

Building up on the information of the two major studies, UNICEF-Bangladesh assisted the Ministry of Law, Justice and Parliamentary Affairs in 1995 to organize a national seminar on the "Bangladesh Law on Children", the first attempt to assess the level of awareness of the concerns and situation of children in general and those in conflict with the law. The meeting confirmed most of the findings of the two studies. It was also the first time many implementors heard about the Convention on the Rights of the Child. The rapport thus established was temporarily stalled with a change of Government.

In 1996 UNICEF reestablished contact with the same Ministry by assisting in a follow-up on the seminar, this time with the focus on juvenile justice and children at social risk. The objective was to bring together all the implementing agencies under one umbrella and discuss the problems of implementing the existing legislation related to children in conflict with the law and at social risk. Besides the Law Ministry, the main ministries involved were the Ministries of Social Welfare, Home Affairs, Establishment, Women and Children Affairs, and Youth and Sports. The main nongovernmental agencies involved were NGOs, academicians, researchers, the media and UNICEF. Members from a newly formed Law Commission were also major participants. A limited agenda was drawn up at the end of the seminar to follow up on four specific activities throughout 1997 under the headings of revision of the law, training and sensitization of implementing agencies, assessment of the situation of children in detention and enhancement of cooperation among all agencies.

The plan was implemented through three interventions.

a. Revision of laws

A baseline study was prepared analyzing the main legislation on juvenile justice, The Children Act, 1974, and the corresponding rules using the "rights" approach. This study highlighted areas where the legislation does not provide for the protection of the rights mentioned in the Convention on the Rights of the Child or is inconsistent with such protection. (A sample of the analysis is attached in the Annexe.)

Senior officials of the Law Ministry participated in two consultations in August 1997 to scan the study carefully and identify areas of consensus that could be sent for immediate amendment. It was seen, however, that largely cosmetic changes received greater attention, as against any radical reorganization of the legislation. It was felt that the latter would involve a major overhauling of the system, an endeavor considered premature.

It was clear that major areas, such as "diversion" as an alternative to institutionalization, specialized assistance and exclusion of status offenses from the juvenile justice system, emerged as areas which needed further consultation and conceptualization. Meantime, the hearing on the "State Party Report on Bangladesh" had been concluded. The remarks pertaining to juvenile justice were valuable in earmarking priority areas of concern. One such issue related to raising the age of criminal responsibility from the present limit of 7 years. As it was clear that this, as well as other issues, would need a broader discussion and understanding, it was agreed that the Law Ministry would initiate another, broader consultation to understand and assess the feasibility of these concepts before amending the law.

b. Training and sensitization

Judges. An opportunity arose for sensitizing the district level judiciary with the inauguration of the Judicial and Administration Training Institute (JATI), which started functioning in March 1997 in Dhaka. Three groups of subordinate judges have been introduced to the Convention on the Rights of the Child, and their role in implementing the Convention has been explained to them. The special laws and provisions on children in conflict with the law have been discussed following lectures, meetings, documentary film showings and the presentation of case studies. Gender concerns and the Campaign for the Elimination of Discrimination against Women have also been part of the one-day orientations of the judges. A total of 120 judges have so far been reached. The orientations have been conducted by UNICEF personnel and consultants. However, starting with the last batch, part of the training has been taken over by JATI trainers. JATI is now proposing to involve senior judges in the training programmes and continuing legal education programmes. It is hoped that the JATI trainers themselves will be able to take these programmes forward.

Lawyers. The Bangladesh Bar Council expressed an interest in including child rights and the juvenile justice system as part of an ongoing human rights training programme. From December 1996 to May 1997, 180 lawyers in six batches were involved in participatory discussions and imparted with the necessary information and skills by a UNICEF consultant.

Police. The Home Ministry and the police were approached by UNICEF with a proposal to incorporate the Convention on the Rights of the Child and gender issues in regular police training programmes through police training institutions. A two-day conference was held at which the heads of seven main police training institutions who were committed to introducing child rights and the behavioral and attitudinal aspects of dealing with children into the training curricula of policemen and officers at all levels. The training institute heads agreed to include a two-week additional component to their regular training courses, at the recruit level, in-service level and also in special training programmes for this purpose. A broad framework of the contents and methodology was agreed upon based on a successful training programme given to the Calcutta Police in India. The needs and timeframe were also worked out. The details of each of the programmes will be worked out by the training institutes themselves. UNICEF committed itself to providing technical assistance in obtaining information regarding practices from other parts of the world and in developing manuals for training.

c. Birth registration

The absence of proof of age is a very important issue since it denies children in conflict with the law their special rights. A survey has been conducted on recent birth registration practices. The survey has been carried out in six districts (in urban and rural areas) over five divisions of the country. The initial report found that only 3 percent of the births of children among all respondents had been registered (3.8 percent in urban and 3.1 percent in rural areas). Most respondents found no need to have a birth certificate, revealing the necessity of initiating a major public awareness campaign on this issue. UNICEF has also been conducting some field experiments to show how birth records with the local government agencies could be updated and the registration of all births ensured through a process of community mobilization. Revisions to the Birth and Death Registration Act, 1873, in order to facilitate these changes are being proposed for discussing at this consultation with policymakers.

3. The unfinished agenda

This initiative has only scratched the surface of the problem of juvenile justice in Bangladesh. Much remains to be done. Each of the interventions has raised more questions than answers. We would like to share these questions.

Situations in which a child comes into contact with the juvenile justice system

1. By committing a crime or by being accused of infringing penal provisions

Sanjay (not his real name), a 12-year-old boy, was caught by the public while trying to pick pockets. He had been initiated into this activity by his older brother. Sanjay was brought to the police station and after two days transferred to the Juvenile Court in Tongi, where he was tried and sentenced to one-year detention. He was to spend this time in the correctional home situated in the same complex and undergo reformative treatment with the help of social caseworkers. (Source: "A Critical Review of Judicial Institutions in Relation to the Rights of the Child", A. Rohfritsch with N.K. Sattar, Child Study Series, Rädda Barnen, 1995.)

2. By being accused by parents or guardians of "uncontrollability"

Mohammad Islam (not his real name), a 14-year-old, is brought before the juvenile magistrate. His mother complains that he steals regularly from her purse and uses the money to watch movies, that he does not study and that he smokes. lslam admits that he stole money once, but denies that he smokes. He is sent to a remand home which is in the same complex as the Juvenile Court. There he is kept under observation. Later he is committed to the correctional home for three months. (Source: "A Critical Review of Judicial Institutions in Relation to the Rights of the Child", A. Rohfritsch with N.K. Sattar, Child Study Series, Rädda Barnen, 1995.)

3. When special laws are applied to Children

From time to time, in order to deal with particular situations, special laws are enacted which override the provisions and safeguards of the Children Act, 1974. These laws restate offences already in the Penal Code and provide more stringent punishments and quicker trials without provision for bail.

Mohammad was 12 years old when he was accused of murdering his step-mother by strangulation. He was arrested the same night after the discovery of the body and detained under Special Powers Act, 1974. His trial took three years, during which time bail was not posted. Mohammad was found guilty and sentenced to 33 years of imprisonment. He spent six months in a regular prison after being given the option to go to the Juvenile Correctional Home for Boys in Tongi. Mohammad will be 18 in two years time. If the authorities do not recommend a change, he will then be sent to jail to serve the rest of his sentence. (Source: "A Critical Review of Judicial Institutions in Relation to the Rights of the Child", A. Rohfritsch with N.K. Sattar, Child Study Series, Rädda Barnen, 1995.)

4. Use of vagrancy laws

The Bengal Vagrancy Act, 1943, a law originating in 14th century English laws, is often applied to children. "Vagrants" are people who do not work and live on alms or charity, causing annoyance to others. A child, under this law, is anyone under the age of 14. Children who live on the streets with or without legitimate means of livelihood may be picked up by the police. On verification of the status of vagrancy through a short summary hearing by a Special Magistrate, a child may be put in one of the closed residential facilities maintained by the Government. The period of incarceration is generally so long as the authorities are not satisfied that the child would not resort to vagrancy if released.

Both boys and girls are vulnerable to being incarcerated on grounds of vagrancy. Young girls suspected of being involved in prostitution are sometimes picked up by the police and forwarded to the Special Magistrate's Courts, where they are declared vagrants and sent to one of the homes.

Chanda was 7 when she lost her way while riding her bike. She was picked up by the police and taken to the reception centre for vagrants in Mirpur. After all attempts at tracing the relatives whom Chanda was visiting failed, she was declared a vagrant. Chanda stayed three years in this centre with people of all ages and origins and was then sent to another home for vagrant girls. She receives education and vocational training, but is extremely conscious of and unhappy about her status and lack of liberty. An orphanage, she believes, is even worse, for she knows that her relatives are alive and enjoying the property her parents had left her when they died. (Source: "A Critical Review of Judicial Institutions in Relation to the Rights of the Child", A. Rohfritsch with N.K. Sattar, Child Study Series, Rädda Barnen, 1995.)

5. Children in preventive detention

The most common situation involving children in contact with the juvenile justice system is through preventive detention. Prior to political demonstrations, strikes, hartals (political strikes), or any major national events at which young persons and children become participants, because of incentives, in activities disrupting public tranquillity, the law enforcement agencies are routinely alerted to round up prospective "agitators" and put them in preventive detention. The detainees are automatically released after the anticipated event is over. However, during this time the children may be kept in the police stations or a vagrant home or even in jail. Sometimes legal interventions are required. Street children and homeless children are specially vulnerable to these kinds of arrests.

"I have a mother who works very hard. We have nobody to support us. I came to Dhaka to look for a job so that I could help my mother. I read up to class five. A man offered me a job in a hotel. I was hungry and scared. I started working for him. I worked in the hotel all day. At night I brought water for my employer's house from 12 to 3 in the morning. One night I fell asleep. I was woken up by my employer's son who reproached me for not finishing my work. Out of fatigue and frustration I hit the employer's son with a mud pitcher and ran away. Since then I am living in the streets. I met another boy who showed me the scavenging business, where I could sell the rubbish. Life in the streets is extremely hard. Twice I have been picked up by the police and both times before a political strike. The first time I was kept along with 80 others in the police station for a week. It was a horrible experience [being] cramped in a space which accommodates 20 people and given very little food, only one piece of bread for each meal. I was later released when the strike was over. I was picked up again, although I tried to tell them that I had not done anything. I was arrested. This is hard: one gets the blame for doing something he hasn't done." (Shagor, 14 years old) (Source: "Face to Face with the Prime Minister (Disadvantaged Children Meet with the Prime Minister of Bangladesh)", telecast on International Children's Day on Bangladesh Television, 5 October 1997.)

6. Children in safe custody

Children, both boys and girls, are sometimes kept in jail as material witnesses of a crime. These arrangements, although seen as a "protective" measure, are no different from incarceration and sometimes even worse. Children who may be rescued from traffickers, girls who elope and are said by guardians to have been kidnapped and girls who are arrested on suspicion of committing crimes under certain powers given to the police to arrest without warrant are a few examples.

"I met this woman on the train. She said, `Come with me. I'll put you in school with my daughter.' At night they took me to a big building. Someone called the police. The police rescued me and arrested them. I learned I had been in a hotel. The Inspector said, `Child, you can't leave, you're a victim. Stay here in jail. I'll help you.' I was in jail for four years. In jail I found out that those bad people had wanted to sell me." (Pinky, aged 15.) (Source: "In Our Own Words", UNICEF-Bangladesh, short film in which urban disadvantaged children describe their perceptions of child rights in their own words.)

Sima Chouwdhury was 15 when she was interviewed in 1992. She had been in Chittagong Central Jail for two years. Sima had been visiting a friend's house with her boyfriend. Her mother, thinking that she had run away, had filed a case of kidnapping against him. She was kept as a victim of kidnapping in "safe custody" in jail while the police arrested her boyfriend. Sima was very unhappy there. Everyone treated her as if she was to blame; the food was not edible, and she did not like the association of her companions, most of whom were criminals. (Source: "Children in the Prisons of Bangladesh", Rahman Rezaur, Child Study Series, Rädda Barnen, 1992.)

7. Children with their mothers in jail

Children are also taken to jail with their mothers who have been arrested. Although the discretion for providing bail to such women is available even in the case of nonbailable offences, it is often not practised. A 1992 study revealed that 11 percent of the children living in jails had not been accused of committing any crimes, but were simply there with their mothers. Such children are usually taken to Government orphanages or homes through the probation officer as soon as a vacancy is available, which is very rarely. In 1994 unofficial sources reported that there were six or seven children with their mothers in the Dhaka Central Jail.

Annexe

Bangladesh General Profile

Bordered by: India to the east, west and north, Myanmar to the southeast and the Bay of Bengal on the south.

Area: 147,570 square kilometers. Flat, deltaic and fertile land crisscrossed by seven major and 200 minor rivers.

Major language: Bangla.

Dominant religion: Islam.

Modernization media: Radio, television, cross-cultural contact.

Bangladesh Administrative Divisions

Bangladesh Labour Situation

Literacy Rate

Pupil-student ratio: 62 pupils per teacher.

Economic Situation

Population

Courts which May Sit as Juvenile Courts

Main Legislation Dealing with Juvenile Justice

Jails in Bangladesh

Facility in Jessore Correctional Home

The Tongi Correctional Home

Juvenile Court: One magistrate of the first class assisted by social caseworkers and a probation officer.

Salient Features of the Children Act, 1974

On age

On initial contact with law enforcement agencies

On bail

On jurisdiction

On trial

On confidentiality and nonstigmatization

On specialized assistance

On victimized children

On institutions and accommodations

On punishment

The Vagrancy Act, 1943

Nacela K, Sattar

May 1997

This law sets out a procedure for handling people who live on alms. It provides for a summary trial by a special magistrate upon whose "declaration" persons may be put in detention centres for an indefinite period. The law itself as it functions is unconstitutional since it denies these persons their right to a fair trial, legal representation, appeal, and a prompt hearing. Furthermore, this law is concerned with the maintenance of public order rather than the protection of the best interests of the child.

For children (under 14-year-olds according to this law) the ought to be totally inapplicable, since children who live on alms or who have no homes and are found to be roaming around are to be taken care of under the Children Act, 1974, section 32.

The following basic suggestions are made.

a. The law should be applied only for adults (over 18).
b. A normal trial process should be evolved based on social inquiry reports so as to ascertain vagrancy status.
c. The Children Act should be applied for children who are lost, who have been found begging or who are in moral danger.
d. Children under 6 should be allowed to remain with their mothers.
e. Arrange accommodations as an alternative to vagrant homes for chi1dren over 6 such as residential schools, foster care, approved homes where all the other rights of the children may be assured. Place these procedures under the Children Act.
f. Prohibit children from being declared "vagrant".
g. Set a limit to the length of incarceration.
h. Introduce follow-up and after-care services.
i. Introduce review mechanisms.

The introduction of some of these changes into current legislation may require further detailed consultation with implementation agencies, including NGOs. It is recommended that such consultations be undertaken and a consensus be reached before the formulation of an amendment.

Agencies Involved in the Administration of Juvenile Justice

Government agencies

Nongovernmental organizations and individuals