Juvenile Delinquency in Bangladesh: Identifying the causes with reference to some case studies

- Md. Tajul Islam

juvenile

Published On - February 3, 2015 [Vol. 2, Jan - Jun, 2015]

Introduction:

Children who come into conflict with the law (Juvenile Delinquents) are often from the most vulnerable and marginalized segments of society. All international instruments like, Convention on the Rights of the Child (CRC) and UN guidelines encourage good practice that aims to ensure the dignity of the child and processes that promote reintegration into the community. Children constitute nearly 50%(around 70 millions) of the population in Bangladesh. This basic fact underlines the importance of protecting the rights of our children. The Constitution of Bangladesh contains a specific chapter on human rights but not specifically on children’s rights. It does however specifically make provision for more favorable provisions for women and children to have been acted by the legislator.[1]The 1974 Children Act was an example of such a favorable provision as the main legislation relating to children, but repealing the Children Act 1974, recently on considering the demand of the day, the new Children Act 2013(widely known as Shishu Ain-2013) has become the most pragmatic provision and effective law for establishing the rights of the children.

Delinquency:

It was William Coxson who in 1484, used the term ‘delinquent’ to describe a person found guilty of customary offence. In simpler words it may be said that delinquency is a form of behavior or rather misbehavior or deviation from the generally accepted norms of conduct in the society.

Oxford Advance Learner’s Dictionary has defined delinquency, bad or criminal behavior, usually of young people and increase in Juvenile delinquency[2]

Juvenile:

Generally the term juvenile means a person who has not reached the age at which one should be treated as an adult by Law. Juvenile is a term connected with young people who are not yet adults and silly and more typical of a child than an adult. Juvenile delinquent means and includes a young person who is not yet adult and who is guilty of committing a crime[3]

  • The Penal Code: The age of criminal responsibility in Bangladesh is above nine (previously seven) years of age (S-82).[4]
  • Contract Act, 1872: Below the age of 18 years old one should be treated as minor or Child.
  • The Employment of Children Act, 1938: Below the age of 15 years old one should be considered as child.
  • The Vagrancy Act, 1943: One should be considered as child till the age of 14 years old.
  • The Children Act, 2013 regarding on age of child has stated, “A child is defined in section 4 and includes anyone up to the age of 18 years”[5]
  • Convention on the Right of the Child (CRC): Below the age of 18 years old one should be treated as child (Article- 1)

Article 1 provides: “A child means every human being below the age of eighteen, unless under the law applicable to the child, majority is attained earlier”.

Causes of and Conditions for the Formation of Delinquent paths:

The causes of and conditions for juvenile crime are usually found at each level of the social structure, including society as a whole, social institutions, social groups and organizations, and interpersonal relations. Researchers have concluded that there is no single path to delinquency and note that the presence of several risk factors often increases a youth’s chance of offending.

Risk Factors:

Various researchers categorize risk factors in different ways. Risk factors may fall under three broad categories:

  • Individual,
  • social and economic,
  • and natural risk factor.

Individual Risk Factors:

Several studies have linked prenatal complications with later delinquent or criminal behavior.

Other individual risk factors include—

  • impulsive behavior,
  • uncontrolled aggression,
  • an inability to gratification,

Economic and Social Risk Factors:

Juvenile delinquency is driven by the negative consequences of social and economic development, in particular economic crises, political instability, and the weakening of major institutions (including the State, systems of public education and public assistance, and the family). Family characteristics such as poor parenting skills, family size, home discord, child maltreatment, and antisocial parents are risk factors linked to juvenile delinquency.

Natural Risk Factors:

Due to flood, cyclone, earthquake, river erosion, draught, poverty lots of people are climate refugee.

Environmental effect:

Every child born needs proper care, control and up-bringing for development of inherent potentialities. Parental discipline and affection at home and at school at the instance of teachers shape the character traits of children who are, by and large, influenced by environmental factors and companies they keep.

Protective Factor:

Research on risk factors for delinquency has prompted discussion and investigation into influences that may provide a buffer between the presence of risk factors and the onset of delinquency. These buffers are known as protective factors.

  • Criminal Justice system:

The criminal justice system refers to the system used by the government to maintain social control, enforce laws, and administer justice.

Criminal justice system is comprised of

1)       Police,

2)       Prosecution

3)       Court and

4)       Correction

  • Objectives of Criminal Justice Policy:

Establishment of an effective criminal justice policy for a safer society to live in and maintaining an improved law and order.

  • Evolve criminal justice system to meet the need of changing situation and circumstances.
  • To fasten together the various aspects of criminal justice system to address the requirement of offenders, victims, wider community, politicians and in a humane way.
  • Juvenile Justice System:

Juvenile justice system, part of Criminal Justice System, means access to justice by children under a specified age. The administrations of justice for minors who are accused have or alleged as to have breached the penal laws of the country essentially constitute the juvenile justice system. Now the Juvenile Justice system is governed by the newly enacted law named as The Children Act 2013 widely known as Shisu Ain 2013.

  • Major International Instruments Dealing with Children in Conflict with the Law:
  • Convention on the Rights of the Child (CRC):

The CRC is the first legally binding international instrument to incorporate the full range of human rights — civil, cultural, economic, political and social rights. It defines ‘children’ as all people under the age of 18.

In light of the binding legal obligation that the CRC imposes and the absence of comprehensive legislative reform being undertaken by the Government of Bangladesh, the question arises whether the CRC can be relied upon in Court. The applicability of international instruments when dealing with cases in our Courts was considered in the decision of The State vs. Metropolitan Police Commissioner.[6]

In this regard it was held as follows-

“Bangladesh was one of the first signatories to the Convention and is bound to take steps for implementing the provisions thereof. Being signatory we cannot ignore, rather we should, so far as possible, implement the aims and goals of the UNCRC. The matter of international covenants, conventions and their incorporation into national laws was considered in a decision of the Indian Supreme Court.

  • United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules):
  • The Beijing Rules were the first international legal instrument to comprehensively detail norms for the administration of justice system for children in conflict with the law.
  • United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines):
  • The Riyadh Guidelines outline government social measures that should be taken to reduce the problem of juvenile delinquency.
  • United Nations Rules for the Protection of Juveniles Deprived of their Liberty (The JDL Rules):
  •  The JDL Rules are intended to establish minimum standards accepted by the United Nations for the protection of juveniles deprived of their liberty in all forms, consistent with human rights and fundamental freedoms.
  • Other International Instruments Dealing with the Children in Conflict with the Law:
  • The UN Convention Against Torture and Other Cruel, Inhuman or   Degrading Treatment or Punishment, 1984.
  • The UN Guidelines for Action on Children in the Criminal Justice System.
  • The UN Standard Minimum Rules for the Treatment of Prisoners.
  • The United Nations Standard Minimum Rules for Non -custodial Measures             (popularly known as ‘the Tokyo Rules’).
  • The UN Basic Principles for the Treatment of Prisoners.
  • The UN Code of Conduct for Law Enforcement Officials.
  • The UN Body of Principles for the Protection of All Persons under Any      Form of Detention or Imprisonment.
  • The UN Basic Principles on the use of Restorative Justice Program in Criminal Matters.
  • The INTERPOOL guidelines for police officers in dealing with juvenile delinquents:

The offence should not be taken too bluntly;

  • Do not be obstinate.
  • Do not embarrass the child.
  • Separate juveniles from adults.
  • Be kind and firm.
  • Be honest.
  • Protect children.
  • Be discreet
  • Major National Instruments Dealing with Children in Conflict with the Law:
  • The Children Act, 2013
  •  Major provisions of the Children Act, 2013

Establishment of Children’s Court and its functions:

The now repealed Children Act 1974 provided for the establishment of ‘Juvenile Courts’ to deal with children in conflict with the law (the so–called ‘youthful offenders’). There were only two ‘Juvenile Courts’ established under the old law, but other regular courts were designated to function as Juvenile Courts when hearing cases involving ‘youthful offenders’. The new law provides that, for the purpose of the Act and for trial of offences there under, at least one court is to be established in every district headquarter and in every metropolitan area as the case may be. Such court shall be called “Children’s Court”. In pursuance to section 16(1), the Department of Law and Justice in consultation with the Supreme Court is mandated to declare, by notification in the official Gazette, one or more court of Additional Sessions Judge in a district or metropolitan area, as the case may be, as the Children’s Court. If there is no Additional Sessions Judge in any district then the District and Sessions Judge shall discharge the responsibilities of a Children’s Court in addition to his own responsibilities. Section 17 of the Act provides that in any case where a child in conflict with the law or a child in contact with the law is involved under any law whatsoever, the Children’s Court shall have the exclusive jurisdiction to try that case.[7]

Arrest of a Child:

When a child is arrested on a charge of non-bail able offence and cannot be brought forthwith before a court, the officer-in-charge of the police station may release him/her on bail unless such release of the child is likely to ‘bring him into association with any reputed criminal’ or ‘expose him to moral danger’ or ‘defeat the ends of justice’.

The Act 2013 specifically provides that no child below the age of 9 years may be arrested under any circumstances.[8]  This prohibition is made very clear in section 44(2), which states that no child shall be arrested or detained under any law relating to preventive detention.

If it is established by the police that a offender is a child who is nine years or above or is between nine and twelve years and has the capacity to understand the nature and consequences its actions, the police, if it has reasonable suspicion that the child has committed or is involved in the offence, may arrest the child. The Children Act sets out the appropriate procedures that need to be followed after arrest of the child.

The Act does not contain all relevant pre-arrest procedural safeguards. Thus, the Children Act is silent on a number of issues which are recognized internationally to be guaranteed for all persons and for which the CRC makes special provision.

However, as will be discussed later, the case-law has enunciated on many of these provisions.

In addition, there are constitutional safeguards regarding the liberty of the person as enshrined in Article 33 of the Constitution, which are often overlooked. Article 33(1) provides as follows:

 “33(1) No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.”

In general the neglect or failure of the Police to apply the provisions of the Constitution or the Children Act does not come to the Courts. However, it may be pointed out that the provisions mandating duties upon the Police are most relevant for the purpose of ensuring justice for children who come into contact with the law.

It was observed in the case of The State vs. Metropolitan Police Commissioner, 60 DLR 660 as follows:

“The police, it appears, acted in violation of the provisions of the Act. At least, there appears to be no indication that they were aware of the above-noted provisions of law or made any attempt to comply with the requirements. The police station is two kilometers from the place of occurrence. But there is nothing to suggest that they made any attempt to locate the parents of the girl or any other relatives. No attempt was made to appoint a probation officer, which is the requirement of section 50…..”

As stated earlier, cases relating to the procedures to be followed by the Police and at the initial stage of the trial are very rare.

The Metropolitan Police Commissioner[9] case provided an opportunity for the Court to issue a number of directions in this regard.

These may profitably be reproduced below:

In the light of the above discussion we may summarize our observations as below:

1. It is the duty of this Court and all other Courts as well as the other state departments, functionaries and agencies dealing with children, to keep in mind that the best interests of the child (accused or otherwise) must be considered first and foremost in dealing with all aspects concerning that child.

2. The parents of the children who are brought before the police under arrest or otherwise, must be informed without delay.

3. A probation officer must be appointed immediately to report to the Court with regard to matters concerning the child.

4. Bail should be considered as a matter of course and detention/confinement should ensue only as the exception in unavoidable scenarios.

5. In dealing with the child, its custody, care, protection and well-being, the views of the child, its parents, guardians, extended family members as well as social welfare agencies must be considered.

6. Where the best interests of the child demands its separation from its parents, special protection and assistance must be provided and there must be alternative care for the child.

7. Steps must be taken to assist the parents to mend their ways and to provide a congenial atmosphere for the proper development of the child.

8. If a child is detained or placed in the care of someone other than the natural parents, its detention or placement must be reviewed at short intervals with a view to handing back custody to its parents or guardians, subject to their attainment of suitability to get custody of the child.

9. When dealing with children, detention and imprisonment shall be used only as a measure of last resort and for the shortest period of time, particularly keeping in view the age and gender of the child.

10. If detention is inevitable, then the child shall be kept in the appropriate Homes/Institutions, separated from adults and preferably with others of his/her same age group.

11. Every effort must be made at all stages for reintegration of the child within the family and so as to enable him/her to assume a constructive role in society.

12. Due consideration must be given to the fact that children come into conflict with the law due to failure of their parents/guardians or the State to provide adequate facilities for their proper upbringing. If the parents or guardians lead the child astray, then it is they who are liable and not the child.

13. The Legislature should consider amending the Children Act, 2013 or formulating new laws giving effect to the provisions of the UNCRC, as is the mandate of that Convention upon the signatories.

14. The use of children as ‘drug mules’ should be made an offence and incorporated in the Children Act, making the parents/guardians of any child used for carrying drugs criminally liable.

15. The State must make provision for diversion of child offenders from the formal placement in government safe homes/prisons to be placed in an atmosphere where the child may be guided in more congenial surroundings within a family unit, either with relatives or unrelated foster families, if necessary, on payment of costs for the child’s maintenance.

Bail of the Arrested Child:

After arrest, if a child is not released nor referred to diversion nor brought before any court immediately, the CAPO may release the child on bail with or without conditions or surety under the supervision of the child’s parents or, in their absence, foster carer or legal guardian or members of his extended family, or probation officer.  In granting bail the CAPO shall not consider whether the offence alleged is bailable or non-bailable. The child shall not be released on bail if the offence alleged is serious or heinous or to be released on bail would be contrary to the best interest of the child or if there is apprehension that upon release on bail the child might come in contact with any notorious criminal or might be exposed to moral risk, or that the ends of justice will be hampered. Where the child is not released on bail, the CAPO shall take steps to produce the child before the nearest Children’s Court within 24 hours. When the child is produced before the Children’s Court, the court shall either release him on bail or order for his custody/detention in a safe home or a Child Development Centre. [10]

In the case of The State v. Secretary, Ministry of Home Affairs and others,[11] [Suo Motu Rule No.1 of 2010] the High Court Division pointed out an internal circular issued by the Inspector General of Police with regard to bail of child offenders. In that case various aspects of justice in respect of children in conflict with the law at the initial stages of the process were considered.

It was observed as follows:

“There is nothing on record to suggest that the OC was at all aware of the need to inform the Probation Officer, as required by section 50 of the Act. It is also clear that the OC was oblivious of the provisions of section 52 of the Act to consider bail of the children. Evidently he is also ignorant of the Police Order No.1 of 1987 published on the order of the Inspector General of Police on 2.2.87 and circulated for implementation to all D.I.G of police and Police Superintendents.

There is nothing to suggest that the matter of bail or custody at the Kishore Unnayan Kendro, Tongi was at all considered by the OC (Officer in charge). As the children were not granted bail then they ought to have been kept in a place of safety in accordance with section 2 (j) of the Act. In the absence of any explanation we can only presume that the children were kept overnight in the police station.”

It is clear that the police authorities were aware about the legal provisions as long ago as 1987, but the failure to implement the provisions persists in the police stations, even after 23 years of that circular. Clearly there is a need for proper training of the police officers. Furthermore, it may be noted that the grounds for refusing bail are very broad and do not promote the minimum use of detention.

Separate Trial of Children:

Whenever a child in conflict with the law is brought before any court and it appears to the Court that he is a child, the Court shall make an inquiry as to the age of that person. No child shall be charged with, or tried for any offence together with an adult. If a child is accused along with an adult of having committed an offence, the case shall be separated and transferred to the Juvenile Court or the Court empowered to exercise the powers of a Juvenile Court.

The Children Act 2013 and the Children Rules 1976 set out the procedural rules that need to be followed by the juvenile Court, any other Court acting as a juvenile Court under section 4 of the Act or the Court of Session in the case of trial of a child in conflict with the law. In addition, the Constitution provides various safeguards some of which have been discussed already in previous chapters which are also fully applicable to children.

Finally, the ICCPR in general and the CRC in particular[12] as binding instruments to Bangladesh through ratification, contain various due process guarantees that are meant to ensure that children alleged or accused of having infringed the law receive a fair trial and treatment.[13]

No matter what offence is alleged, irrespective of seriousness of the act, a juvenile is to be tried separately from adults in accordance with provisions of the Children Act.” Not only that after investigation separate report either charge sheet or final report be submitted separately as the some provision has been incorporated in the newly enacted Children Act 2013.

Mandatory holding of separate trial:

In the case of Ismail Howlader and others vs. The State[14]  the High Court Division observed as follows:

“The record of the lower Court reveals that the investigating officer in his police report dated 09-08-1993 has specifically stated that accused Waliur Rahman was 11.5 years old at the time of submission of the said report.

This fact is also corroborated by PW2, in his deposition recorded on 9-9-1995. He stated that Waliur was a minor. The prosecution has not produced any evidences to the contrary. The learned Additional Sessions Judge is silent about the issue in the impugned judgment and also in the order sheet. Similarly, the defense side did not raise the issue before and during the whole trial except by an indirect reference in cross-examination of PW2. The result is the admitted joint trial of the then “child” Waliur Rahman with other accused persons.”

Thus there appears to be no need for the child to apply for separate trial. It appears that it would be sufficient if there was evidence on record to suggest that the accused was a child within the definition of the Children Act. Referring to the provision of section 6(1) of the Act it was held as follows:

“The provision of section 15 is a mandatory provision and it must be followed in any criminal trial unless specifically provided otherwise in a law. The noncompliance of the said provision for the trial of a child has been found by a Division Bench of the Court in the case of Kawsar-un-Nessa and another vs. The State reported in 1995 BLD 21 to be an illegality vitiating the trial. We fully agree with the view taken in that case.

Thus, it would appear that in order to get the benefit of the Children Act it would suffice to show that there is evidence on record, e.g. by way of evidence of prosecution witnesses, that the accused was below the age of 16 years.

Sitting of the Court: 

In the trial of a case in which a child is charged with an offence the Court shall sit in a building, or a room different from that in which the ordinary sittings of the Court are held, or on different days, or at different times from those at which the ordinary sitting of the Court are held.

The procedures and mode of trial laid down in sections 17 to 30 set the children’s justice system totally apart from the conventional criminal justice system. In a way these sections indicate and reinforce the mandate of the international instruments to treat children differently and to shield them from the rigors of the conventional criminal justice system.[15]

It was observed in BLAST vs Bangladesh[16]  as follows: “9. (…) So, the provisions of the Children Act, 2013 have provided different processes and modes of arrest, detention and trial of the Juvenile Offenders below the age of 16 years.”

Child-friendly Environment of the Court :

The hearing of all cases and proceeding shall be conducted in as simple a manner as possible without observing any formality and care shall be taken to ensure that the child against whom the case or proceeding has been instituted feels home -like atmosphere, during the hearing.

Mode of trial

The Children Rules, 1976 in Rule 4 set out the mode of trial that needs to be followed. As highlighted above, these rules give details of the procedures that set the juvenile justice trial apart from the adult criminal justice trial. Though the government by gazette new children act promulgated but still no rules has been prepared as such the Children rule 1976 is still effective as it was earlier.

Home-like atmosphere

“Rule 4. Procedure to be followed by Court.—-(1) The hearing of all cases and proceeding shall be conducted in as simple a manner as possible without observing any formality grid care shall be taken to ensure that the child against whom the case or proceeding has been instituted feels home-like atmosphere, during the hearing

Attendance of Persons in Court Proceedings :

According to section 23, the following persons may be present in court, namely the child concerned, the parents or, in their absence, foster carer or legal guardian, or, where applicable, members of the extended family, officers and employees of the court, parties to the case or proceeding, CAPO, the concerned lawyer or any other person directly concerned with the case or proceeding including the Probation Officer and any person specially authorized by the court to appear or remain present.

Provided that the presence of the child’s parents or, in their absence, foster carer or the guardian or members of his extended family and also the Probation Officer and his lawyer shall be ensured. The steps taken during the proceedings and those to be taken shall be informed to the child. It is the duty of the lawyer engaged on behalf of the child and the Probation Officer to explain to the child in easy language any decision or order of the court and also the nature and consequence of the proceedings. In case of any carelessness, negligence and failure on the part of Child Affairs Police Officer or concerned police officer or Probation Officer in discharging their responsibilities in filing and conducting cases properly in accordance with the provision of this Act, the Children’s Court shall immediately refer the matter, in the case of Probation Officer, to the Deputy Director of the District Social Services Office, and in the case of Child Affairs Police Officer or concerned police officer, to the Superintendent of Police for taking appropriate legal action and the concerned authorities shall be bound to intimate the concerned Children’s Court with a report relating to action taken by them.

Operation of the Children Act 1974 is still remaining same for the cases which were lodged before the court or police station. But after enactment of the Children Act 2013 all cases about juvenile delinquent will be tried under or by the provision of the present Children act.

Paving Way to Reform Juvenile Delinquents in Bangladesh:

Following initiatives could be incorporated:

  • Policy Initiative,
  • Legal Initiative,
  • Administrative Initiative,
  • Social Initiative

Policy Initiative:

  •  Include Restorative Justice Model in Juvenile correction,
  • Establishment of Independent Child Rights Commission,
  • Adopting and Implementing Prevention Strategy,
  • Prioritizing the Development of Non-Custodial Alternatives,
  • Development of National Data Bank and Children   Justice Indicators in Line with International Standards,
  • Undertaking Research on the Children Justice System,
  • Create more big and Smaller Rehabilitative Institutions,

Social Initiatives:

  •  Increase more educational programs
  • More cultural movement to involve juveniles,
  • Awareness building program for juvenile delinquents

Legal Initiative:

To create a pro-juvenile justice model for juvenile in Bangladesh, the following critical issues should amend or incorporate in the Children Act and the Rule. First it should be extended to the children from sixteen to eighteen and necessary amendment should be made to consider everyone below the age of eighteen as ‘child’. The minimum age of penal responsibility is to be raised from nine to twelve.

Section 100 further provides that, actions remaining incomplete when this Act of 2013 comes into force, so far as possible, shall be concluded in accordance with provisions of the present Act. Children in certified institutes or remand homes in connection with under-trial cases shall continue as before in accordance with provisions of this Act. And, those cases which remain pending in the Juvenile Court shall be disposed of by the Children’s Court as if that Act (the Children Act 1974) was not repealed.

Administrative Initiative:

The government should prepare a yearly progress   report on the    situation of the children justice system of the country. Adequate number of remand homes and places of safety in the vicinity of police stations should be constructed. On receiving a child in conflict with the law, the KUK authority should be supplied with the report from the probation officer. Where the authorities of the KUKs come to a finding that a child has been reformed and may be released, implementation of the decision to release the child should be expedited.

Conclusion:

Children are the future of the nation. If they go into astray then the society in future extinguished. From the paths of becoming delinquency of the juvenile should have been found out at first. Thereafter the laws and policies in practice at this moment in our society are not adequately conceived and updated to create child friendly society of international standard. Many children remain outside the protective caring and become vulnerable to different forms of abuses. They, in no way, should be treated as criminals. Government, NGOs, social organizations, religious institutions, schools etc. should take up initiatives to address the social menace to a desired end.

 

[1] Article 28 (4) of the Constitution
[2] Oxford Advance Learner’s Dictionary, page no. 404
[3] Oxford Advance Learner’s Dictionary, page no. 840
[4] Section 82 of The Penal Code-1860
[5] Section 4 of the Children Act 2013
[6]  State vs. Metropolitan Police Commissioner, 60 DLR 660
[7]  Section 16 of the Children Act 2013
[8] Section 43 of the Children Act 2013
[9]  60 DLR 660
[10] Section 51 Section 52(1), 52(2), 52(3), 52(4),52(5), 53 of the Act.
[11] Unreported judgment dated 01.03.2010.
[12]  See in particular Article 14 of the ICCPR and Article 40(2) of the CRC.
[13]  Article 40 (1) of the CRC & Article 14 (1) of the ICCPR
[14]  58 DLR 335
[15] See Roushan Mondal op cit
[16]  7 BLC (HCD) 85

About The Writer

Article Author Image

Md. Tajul Islam

Senior Judicial Magistrate, Chief Judicial Magistrate Court, Dhaka

The author is a Senior Judicial Magistrate, Chief Judicial Magistrate Court, Dhaka

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