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Towards a child-rights based juvenile justice
The development of juvenile justice in Bangladesh is built on the recognition that many juveniles who come into conflict with the law are victims of social hardship, violence and deprivation and that they often do not understand the consequences of the act they committed. Due to the multifaceted nature of needs, they require and are entitled to special care and protection. In this context, the UN Convention on the Rights of the Child (UNCRC/CRC), 1989 and other relevant international standards for dealing with juvenile offenders provide several provisions to protect their rights. As a State party to the Convention on the Rights of the Child, notably, Bangladesh is under a legal obligation to establish a child rights oriented juvenile justice system based on UNCRC elements i.e., to protect human rights of children, prohibit degrading punishment imposed on them and rehabilitate them with dignity. This obligation has been resonated also through the insertion of CRC as a reference in the preamble of the Children Act in 2013.
Juvenile justice system initially functions as public social agencies striving to find solution to the problem of juvenile delinquency and to rehabilitate the accused. Its aim is not conviction and punishment of those who commit wrongful acts, but to correct the child. Child-rights based juvenile justice offers separate trial/treatment of child and his social rehabilitation so that he/she can enjoy human rights he/she is entitled to.
Coming into contact with the formal criminal justice system apparently is assumed to be detrimental to children's growth and psychology. There is significant societal stigma and prejudice against children living under full confinement that the society makes them feel unproductive. That's why child rights experts most often advocate for non-custodial interventions such as care, guidance, community service order or diversions offer to place child within a family-like environment which is more likely to correct them instead of punishing them in prison. Dealing children in conflict with the law within community settings allow them to maintain contact with their families as much as possible as it has been shown to improve their reintegration.
CRC and other instruments dealing with the rights for children in conflict with the law gear towards non-judicial principles in a juvenile justice to reintegrate the children. Article 40(3b) of the CRC notes, “whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected”. The Committee on the Rights of the Child in reference to interventions without resorting to judicial proceedings explains, given the fact that the majority of child offenders commit only minor offences, a range of measures involving removal from criminal/juvenile justice processing and referral to non-custodial and alternative (social) services (i.e.,diversion, family/community conferencing) should be a well-established practice that can and should be used in most cases.
Apart from CRC, Beijing Rules 1985 attempts to enumerate some of the important sanctions for instances, community service orders, financial penalties, compensation and restitution, intermediate treatment and other treatment orders, etc. as sentencing options to for a juvenile offender.
The UN Guidelines for the Prevention of Juvenile Delinquency 1990(principle 6) withal confirms that community-based services and programes should be developed in a juvenile justice system. In compliance with the CRC and other international agreed standards, e.g, Riyadh Rules, Beijing Rules Bangladesh is duty bound to apply non-custodial interventions dealing with the children in conflict with the law and a meaningful partial transfer of power to communities, and to facilitate the children's rehabilitation.
However, in Bangladesh children are treated and tried under the retributive criminal justice that is generally acknowledged to be detrimental to children's physical, social, emotional, cognitive and spiritual development. Direct contact with law enforcing agencies in Bangladesh often brings violence, abuse and exploitation of the children in conflict with law. After a child is arrested, he is often locked-up and tried with adult criminals and after trial, and if he is found convicted, he is left with the option of full-time confinement in Child Development Centre.
In Bangladesh there are three specialised institutes set up for the detention of child offenders named as Child Development Centre (CDC). These are monitored by the Department of Social Service under the Ministry of Social Welfare. Howbeit, unsatisfactory condition of the post-trial institutionalisation system for the juvenile offenders in Bangladesh offers fewer possibilities for rehabilitation. It appears because of poor administrative cooperation and lack of sufficient logistic support from the government. For example, the vocational training programs conducted in the centers such as tailoring, automobile, electric service are very obsolete and modern technical education like computer programming is open to very limited delinquents.
Additionally there are no arrangements in CDCs for
keeping the children separated in accordance with their age. The need to
keep older children separate from younger children is patent if we consider
their physique and mental development. It is a common phenomenon that
younger children may be exposed to psychological abuse and bullying by older
peers and more importantly, they may be sexually harassed, which would leave
them distraught and scared for life. Ironically, children are deprived of
the basic rights to survive, e.g., right to food and standard living,
freedom of participation, freedom of assembly.
Nonetheless 2013 Children Act covers a wide range of areas like a special
judicial mechanism, prohibition of joint trial with adults, detention of a
child in a safe place, and restrictions on punishment of children, and
introduction of alternative care and diversions for the protection of
juvenile offenders. After a child is arrested and alleged to have committed
a crime or on suspicion, if the crime is of minor in nature, the court may
also order the probation officer to resolute it alternatively. The new Act
of 2013 contains provisions for diversions also for correction of children
in conflict with the law, notwithstanding there is no guideline or rules how
the methods would be applied or how alternative interventions would be
conducted in the ground.
Given the recent case study, truly the juvenile justice practice still accepts the full confinement with some vocational and correctional activities as a core technique of rehabilitation. Though the recent Children Act has inserted substantive provisions of alternative care, family conferencing, diversions, rules still need to be adopted how methods of family conferencing and diversions would be practiced in the ground. The governmental authorities in this concern should act proactively to make rules and regulations dealing with non-custodial sanctions. Only then, we can dream for a child-rights friendly juvenile justice system in Bangladesh.
Khandaker Farzana Rahman
The writer is Lecturer of Law, Jagannath University.
4 March 2014
http://www.thedailystar.net/towards-a-child-rights-based-juvenile-justice-13905
