The establishment of children’s courts in Bangladesh: from principle to practice

ABSTRACT

Reform of the Bangladeshi juvenile justice system started when the Children Act was passed in 2013. The 2013 Act has been adopted with provisions for child-friendly Children’s Courts and various other child-oriented practices in a number of settings, such as providing for child help-desks in police stations, establishment of a national child welfare board, probation officers, and alternative preventive measures on the basis of CRC which would ensure separate justice for children. Separate Children’s Courts with child-friendly mechanisms are now established in the country which introduced rights based principles that empower children to enforce their rights and encourage the government, courts, and law enforcement officials to develop policies that address the precarious situation of children. As the replacement for the long outdated Children Act 1974, the 2013 Act is an attempt to put in place a modern system for diversion and rehabilitation, including greater use of community-based interventions, and the promotion of initiatives to deal with children and juvenile offenders. This study assesses legal reforms in relation to the establishment of Children’s Courts in Bangladesh as measures against international guidelines for child-friendly justice.

Notes

1 Borhan Uddin Khan and Muhammad Mahbubur Rahman, Protection of Children in Conflict with the Law in Bangladesh (Save the Children UK 2008) 3.

2 Children Act 2013.

3 Children Act 1974.

4 Children Act 2013, s 4.

5 The Convention on the Rights of the Child 1989, art 40(1). The Children Act 2013 provides that, for the purpose of the Act and for the trial of offences thereunder, at least one court is to be established in every district headquarter and in every metropolitan area which shall be called ‘Children's Court’.

6 NV Paranjape, Criminology and Penology (Central Law Publication 2001) 530. Further, India has ratified the CRC in 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 instruments. Finally, India has enacted the Juvenile Justice (Care and Protection of Children) Act 2000. This Act has been amended in 2006, and the amended Act has provisions on powers to make Rules, establish Juvenile Justice Boards, establish institutions, set up Special Juvenile Police Units, and develop rehabilitation and social reintegration programs.

7 Ministry of Women, Family and Community Development, ‘Child Protection and Child Welfare Services in Malaysia, Beijing High Level Meeting, November 4–6 2010’ 2 (UNICEF) <www.unicef.org/eapro/Malaysia_Beijing_paper_26_Oct_2010_FINAL.pdf> accessed 9 November 2015. For details on the background of this Children's Court, see Farah NiniDusuki, ‘Perkembangan Mahkamahbagi Kanak-Kanak’ in Farid Sufian Shuaib (ed), PerkembanganPerundangan Malaysia: Artikel Terpilih (Jilid 2 2007) 125.

8 Thi Thanh Nga Pham, ‘The Establishment of Children Courts and the Fulfilment of Vietnam's Obligations under the Convention on the Rights of the Child’ (2013) 14 Australian Journal of Asian Law 1, 4.

9 ibid.

10 Committee on the Rights of Child (Fifty-first session) ‘Concluding Observations’ (12 June 2009) CRC/C/BGD/CO/4 (Concluding Observations). See also CRC A/53/41 (1998) and CRC/C/15/Add.221 (2003).

11 Initial Report of State Parties due in 1992: Bangladesh (07 December 1995) CRC/C/3/Add.38.

12 Periodic State Reports 1997, 2001. Recently, Bangladesh submitted its combined third and fourth report (2007).

13 Concluding Observations (1998) [12].

14 Concluding Observations (2003) [13].

15 UNICEF, ‘Juvenile Justice in South Asia: Improving Protection for Children in Conflict with the Law’ (UNICEF 2006) 39–52 <www.unicef.org/rosa/Juvenile_Justice_in_South_Asia.pdf> accessed 9 November 2015.

16 The Children Act 1974 and the Children Rules 1976 contained the seeds of the juvenile justice system in Bangladesh. But these laws provide a wide scope for custody, protection and treatment of juvenile delinquents under the age of 16 years which was inconsistent with the CRC.

17 Nahid Ferdousi, ‘Legislation on Juvenile Delinquency in Bangladesh: A Study to Ward Off Evils' (2011) 34 Journal of the Institute of Bangladesh Studies 21.

18 The Children Act 1974 was enacted about 41 years ago. Before this Act, many international conventions and instruments on children's rights had already come into existence. So, it should have been in conformity with the CRC and the other UN rules and guidelines.

19 M Imman Ali, ‘Towards a Justice Delivery System for Children in Bangladesh: A Guide and Case Law on Children in Conflict with the Law’ (UNICEF, 2010) 17–23 <www.unicef.org/bangladesh/Justice_for_Children_2010.pdf> accessed 9 November 2015.

20 These include the Special Powers Act 1974, the Anti-Terrorism Act 1992, the Arms Act 1878, the Explosive Substances Act 1908, the Women and Children Repression Prevention Act 2000, the Code of Criminal Procedure 1898 and the Metropolitan Police Ordinances, all of which are non-child-friendly in nature.

21 KM Subhan, ‘Juvenile Justice Administration in Bangladesh: Laws and their Implementation’ in Waliur Rahman and Mohammad Shahabuddin (eds), Judicial Training in the New Millennium: An Anatomy of BILIA Judicial Training with Difference (Bangladesh Institute of Law and International Affairs 2005) 215.

22 Children Act 2013.

23 Khan and Rahman (n 1) 66–67.

24 Hameeda Hossian and Sara Hossain, ‘Rights of Children’ in Hameeda Hossian and Sara Hossain (eds), Human Rights in Bangladesh 2006 (Ain O Salish Kendra 2007) 195.

25 In 2007, after the separation of judiciary from executive an amendment was made to the effect that a Chief Judicial Magistrate and a Metropolitan Magistrate was empowered to exercise powers of a Children's Court instead of a Sub-Divisional Magistrate and a Magistrate of the First Class by Gazette Notification (vide No-justice-4/5C-1/2005/1242 dated 20 November 2007) of the Ministry of Law, Justice and Parliamentary Affairs.

26 Children Act 1974, s 4.

27 Mizanur Rahman, Tracing the Missing Cord: A Study on the Children Act 1974 (Save the Children UK 2003) 14.

28 ‘Govt to Set Up Children Court in Every District: Ministry’ The Bangladesh Chronicle (Dhaka, 24 April 2014) <http://www.bdchronicle.com/detail/news/32/6352#sthash.trhltDTR.dpuf> accessed 31 March 2016.

29 The 2013 Act provides that at least one ‘Children's Court’ is to be established in every district headquarter and in every metropolitan area.

30 Sumaiya Khair, ‘Juvenile Justice Administration and Correctional Services in Bangladesh: A Critical Review’ (2005) 16 Journal of the Faculty of Law 10.

31 According to section 2(4) of the Act, a child in contact with the law includes a child who is a victim of or a witness to an offence under any existing law, and all cases involving such a child will be tried in the Children's Court.

32 Mohosinul Karim, ‘Children Court Formed in Each District’ Dhaka Tribune (Dhaka, 24 April 2014) <www.dhakatribune.com/bangladesh/2014/apr/24/children-court-formed-each-district> accessed 13 November 2015.

33 Convention on the Rights of Child 1990 (CRC), art 40(2)(b)(vii). See also United Nations Standard Minimum Rules for the Administration of Juvenile Justice, UNGA A/RES/40/33 (29 November 1985) rule 7 <http://www.un.org/documents/ga/res/40/a40r033.htm> accessed 13 November 2015 (Beijing Rules).

34 See generally, Ursula Kilkelly, ‘Youth Courts and Children's Rights: The Irish Experience’ (2008) 8 Youth Justice 39.

35 See Shiplu v The State [1997] 49 DLR 53 (High Court Division, Supreme Court of Bangladesh (HCD)); Bimal Das v The State [1997] 46 DLR 460 (HCD); Md Nasir Ahmed v The State [1990] 42 DLR 89 (HCD); Kadu v The State [1991] 43 DLR 163 (HCD); Kawsarun Nessa v The State [1996] 48 DLR 196 (HCD); Baktiar Hossain v The State [1995] 47 DLR 542 (HCD).

36 Children Act 2013, s 17(2).

37 ibid s 17(4).

38 ibid s 16.

39 ibid s 32.

40 ibid s 26.

41 M Enamul Hoqueet al, ‘Under-Aged Prison Inmates in Bangladesh: A sample situation of youthful offenders in greater Dhaka’ (Action Aid Bangladesh and Retired Police Officers Welfare Association Bangladesh 2008) 11 <www.chandpur.gov.bd/sites/default/files/www.chandpur.gov.bd/6001.pdf> accessed 13 November 2015.

42 Ruby Ghuznavi et al., Child Rights: Reality and Challenges (Shishu Adhikar Sangjog 2001) 129.

43 Nahid Ferdousi, ‘Trends and Factors of Juvenile Delinquency in Bangladesh: Some Observations' (2011) 11 Bangladesh Journal of Law 32.

44 The Code of Criminal Procedure 1898 (as amended in 2006).

45 Hossian and Hossain (n 24) 195.

46 Children Act 2013, s 17(4).

47 ibid s 19(4).

48 United Nations Committee On the Rights of the Child, ‘General Comment No 10’ (UN Office of the High Commissioner for Human Rights, 25 April 2007) <www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf> accessed 13 November 2015.

49 Beijing Rules (n 33) rule 5.1.

50 United Nations General Assembly, ‘United Nations Standard Minimum Rules for Non-Custodial Measures, UNGA Res 45/110’ (UN Office of the High Commissioner for Human Rights) <http://www.ohchr.org/Documents/ProfessionalInterest/tokyorules.pdf> accessed 13 November 2015 (Tokyo Rules).

51 M Imman Ali (n 19) 26.

52 Children Act 1974, s 52.

53 ibid s 53.

54 [2002] 7 BLC 409 (HCD).

55 UN General Assembly, ‘Report of the Working Group on the Universal Periodic Review: Bangladesh’ 6^th Session A/HRC/11/18 (UN General Assembly) <daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/162/52/PDF/G0916252.pdf?OpenElement> accessed 14 November 2015.

56 Bangladesh Legal Aid and Services Trust v Bangladesh 22 BLD (2002) 206 (HCD).

57 See Bangladesh Legal Aid and Services Trust v Bangladesh [2005] 57 DLR 11 (HCD); Khan and Rahman (n 1) 21.

58 [2007] 59 DLR 72 (HCD).

59 Concluding Observations (n 10) [47].

60 Report of the Working Group on the Universal Periodic Review Bangladesh A/HRC/11/18 (5 October 2009) 94(16).

61 Report of the Working Group on the Universal Periodic Review: Bangladesh, Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review A/HRC/11/18/Add.1 (9 June 2009) 3.

62 Children Act 2013, s 33.

63 ibid s 34.

64 Council of Europe, ‘Guidelines of the Committee of Ministers of the Council of Europe on Child Friendly Justice’ (Council of Europe, 17 November 2010) <wcd.coe.int/ViewDoc.jsp?Ref=CM/Del/Dec(2010)1098/10.2abc&Language=lanEnglish&Ver=app6&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383> accessed 13 November 2015.

65 Patrick Geary, ‘Child-Friendly Justice and Children's Rights, Child Rights International Network (CRIN)’ (United Kingdom 2011) 10 <https://www.crin.org/en/docs/FileManager/Child-Friendly_Justice_and_Childrens_Rights_Revised.pdf> accessed 22 March 2016.

66 Council of Europe, ‘Recommendation Rec (2000) 20 on the Role of Early Psychosocial Intervention in the Prevention of Criminality’ (Council of Europe, 6 October 2000) <www.coe.int/t/dghl/standardsetting/prisons/PCCP%20documents%202013/Rec(2000)20_E.pdf> accessed 14 November 2015.

67 Beijing Rules (n 33) rule 5.1.

68 ibid rule 4.

69 John Muncie, ‘The United Nations, Children's Rights and Juvenile Justice’ in Wayne Taylor, Rod Earl and Richard Hester (eds), Youth Justice Handbook: Theory, Policy and Practice (Willan 2009) 20–21.

70 Nahid Ferdousi, ‘The Children Act, 2013: A Milestone of Child Protection in Bangladesh’ The Daily Star (24 September 2013) <archive.thedailystar.net/beta2/news/the-children-act-2013-a-milestone-of-child-protection/> accessed 14 November 2015.

71 Ruby Ghuznavi (n 42) 130.

72 The majority of children are arrested under special laws such as the Special Powers Act 1974, the Arms Act 1887, the Drugs Act 1992, section 54 of the Code of Criminal Procedure 1898 and provisions of Metropolitan Police Ordinances. The Code and Metropolitan Police Ordinance allow police officer to arrest any person on ‘reasonable suspicion’ without a warrant.

73 Children Act 2013, s 13.

74 ibid s 14.

75 ibid s 44(1).

76 The charge sheet is a report to be submitted in court, on the completion of an investigation, by the investigating officer, when the charges against the accused are found proved and the investigating officer proposes to proceed against the accused. It is contained in a government prescribed form.

77 Children Act 2013, s 5.

78 ibid s 84.

79 ibid s 31.

80 ibid s 33.

81 ibid s 38.

82 ibid s 37.

83 ibid s 48.

84 ibid s 49.

85 The Children Act was first enacted in 1974 and was enforced in 1976 only for the Dhaka District. For other districts of Bangladesh, it was enforced from 1980 onwards. Hence, juvenile justice did not attract significant legal attention until the early 1980s. From 1980 to 1990, the public and concerned persons were not adequately aware as there was no implementation of the said Act in judiciary of Bangladesh.

86 [1993] 45 DLR 643 (HCD).

87 ibid [26].

88 [2005] 57 DLR 11 (HCD).

89 ibid [10]

90 [2007] 59 DLR 72 (HCD).

91 ibid [46].

92 M Imman Ali, ‘Are Judges Experts in Determining Age?’ (2006) 61 Dhaka Law Review 34.

93 M Imman Ali (n 19) 142.

94 [2008] 60 DLR 660 (HCD).

95 ibid.

96 Suo Moto Rule No 04 of 2008.

97 Hameeda Hossian and Sara Hossain (n 24) 231.

98 60 DLR 2009 (HCD).

99 ibid [25]

100 Nahid Ferdousi, Juvenile Justice System in Bangladesh (Academic Press and Publishers Library 2012) 11–19.

101 [2008] 60 DLR 660 (HCD).

102 ibid [34], [35].

103 BLAST v Secretary of the Ministry of Education (2014) 19 BLC 358 (HCD).

104 Md Roushan Mondal (n 58).

105 ibid.

106 M Imman Ali (n 19) 84.

107 Children Act 2013, s 17(2).

108 The Bangladesh Chronicle (n 28).

109 Thi Thanh Nga Pham (n 8) 3–14.

110 Children Act 2013, s 6 deals with the appointment, and responsibilities and duties of probation officers in greater detail and provides that the government shall appoint one or more probation officers in every district, sub-districts or metropolitan area.

111 General Comment No 10 (n 48) [22]–[29]; See also Beijing Rules (n 33) rule 11.

112 Children Act 2013, s 48.

113 Diversion should be practised where the offence is of a non-serious nature and where the family, the school or other informal social institutions have already reacted, or are likely to react, in an appropriate and constructive manner. Diversion should also be practised where the merits of individual cases would make diversion appropriate, even when more serious offences have been committed such as where it was the first offence committed or the act was committed under peer pressure.

114 Tokyo Rules (n 50).

115 Council of Europe, ‘Recommendation CM/Rec(2008) 11 of the Committee of Ministers to member states on the European Rules for juvenile offenders subject to sanctions or measures' [23.2] <http://www.refworld.org/docid/4a7058c02.html> accessed 29 November 2015.

116 The Convention on the Rights of Child, art 37.

117 Beijing Rules (n 33) rule 13.

118 United Nations General Assembly, ‘United Nations Rules for the Protection of Juveniles Deprived of Their Property, UNGA Res 45/113’ (United Nations) rule 1 <http://www.un.org/documents/ga/res/45/a45r113.htm> accessed 15 November 2015.

119 Beijing Rules (n 33) rule 17.

120 Kilkelly (n 34).

121 Council of Europe, ‘Resolution No 2 on Child-Friendly Justice’ (Council of Europe) [13]–[14] <www.coe.int/t/dghl/standardsetting/minjust/mju28/MJU-28(2007)Resol2E.pdf> accessed 14 November 2015; Council of Europe, ‘Recommendation Rec (2003) 20 of the Committee of Ministers to Member States Concerning New Ways of Dealing With Juvenile delinquency and the Role of Juvenile Justice’ (Council of Europe) art 15 <wcd.coe.int/ViewDoc.jsp?id=70063> accessed 14 November 2015.