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Chapter: One

INTRODUCTION

1.1 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 Children Act 1974 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.

The problem of juvenile delinquency is becoming more complicated and


universal, and crime prevention programms are either unequipped to deal with the
present realities or do not exist. Many developing countries have done little or
nothing to deal with these problems, and international programmes are obviously
insufficient. Developed countries are engaged in activities aimed at juvenile crime

1 Article 28 (4) of The Bangladesh Constitution

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prevention, but the overall effect of these programmes is rather weak because the
mechanisms in place are often inadequate to address the existing situation.

1.2 Statement of the Problem

The problem of juvenile delinquency is becoming more complicated and universal,


and crime prevention programmes are either unequipped to deal with the present
realities or do not exist. Many developing countries have done little or nothing to deal
with these problems, and international programmes are obviously insufficient.
Developed countries are engaged in activities aimed at juvenile crime prevention, but
the overall effect of these programmes is rather weak because the mechanisms in
place are often inadequate to address the existing situation.

1.3 Research Question

Main research question

How would diversions and alternative sanctions contribute to making the juvenile
justice system in Bangladesh more child rights focused?

Sub research questions

1. What do the major international instruments relevant to juvenile justice


prescribe alternatives to detention and diversion?
2. How is a child coming in conflict with the law treated in Bangladesh in law
and in fact?
3. What is the legal scope for diversion and alternative sanctioning in
Bangladesh?
4. What obstacles for introducing and implementing such reforms are likely to
come up, and how could these be tackled?

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1.4 Literature review

1. Juvenile Delinquency in Bangladesh

Ahmed Bulbul Mohammad and Khan Camellia, 2011. A Crucial Observation on


Juvenile Delinquency: Bangladesh Perspectives. ASA University Review, Vol. 5
No. 1, January – June, 2011.

The article has argued children as the future of us and hopes of better tomorrow.
A segment of our society is lacking in self control and devoid of ethics and morals.
Their family fails to install in them traditional values. They hardly have respect for
others. Child rights in Bangladesh, signing in the UN convention of child rights
(CRC) etc. have been discussed. The article described well way about juvenile justice
system in Bangladesh. Corruption by the police regarding juvenile justice issue has
been argued too. The article has mainly talked about children, child rights, juvenile
justice etc. but not talked any empirical data on delinquent juveniles. The causes of
their involvement or how they involve in delinquencies are not discussed. Impacts of
delinquent acts to the juveniles are not discussed though the writer has named the
article ―A Crucial Observation to Juvenile Delinquency‖.

2. Child Delinquency

Flores Robert J, Administrator, May 2003. Child Delinquency. Bulletin Series.


U.S. Department of Justice. Office of Justice Programs. Office of Juvenile
Justice and Delinquency Prevention.

The article has described well way the increasing high rates of crimes among
children aged 10 to 18 years in US. Twelve years old children are doing more drastic
violence than adult people. The crime rate has increased 33% among children during
last decade. The article has described about individual, family, delinquent peer and
other risk factors to describe Childs ‘involvement to crime and delinquency.

Sparked by high-profile cases involving children who commit violent crimes,


public concerns regarding child delinquents have escalated. Compared with juveniles

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who first become involved in delinquency in their teens, child delinquents (offenders
younger than age 13) face a much greater risk of becoming serious, violent, and
chronic juvenile offenders. OJJDP formed the Study Group on Very Young Offenders
to explore what is known about the prevalence and frequency of very young
offending, investigate how very young offenders are handled by various systems
(e.g., juvenile justice, mental health, and social services), and determine effective
methods for preventing very young offending. The Study Group identified particular
risk and protective factors that are crucial to developing early intervention and
protection programs for very young offenders.

1.5 Objectives of the Study:

The main objectives of this research would be to put due emphasis on the Juvenile
Justice system for well-being of the juvenile and shall ensure that any reaction to
juvenile offenders shall always be in proportion to the circumstance of both the
offenders and the offence.

1.6 Justifications of the study

Most of the literature that the author reviewed depicts the overall ineffectiveness of
the present juvenile justice framework in Bangladesh. There has been an outcry on
the need to bring the present system in compliance with international standards by
international development organizations and the key local stakeholders dealing with
juvenile justice in Bangladesh. The National Child Policy was consequently adopted.
This climate offers opportunities for juvenile justice reform and makes my study
relevant to future improvements of the juvenile justice system in Bangladesh.

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In this connection this paper identifies potential reforms to make the juvenile
justice system more rights-focused, especially from the aspects of alternatives to
detention and diversion. It explores whether directing children away from judicial
proceedings and towards community solutions would add value and assist the rights
that children in conflict with the law in Bangladesh. Non-governmental agencies
hence can use this study as an advocacy tool to step forward for a child friendly
juvenile justice system.

As a student of law this work is highly significant for me as well since this
academic research expands my legal thinking and understanding and develops
practical research skills.

1.7 Limitations of the research

While numerous general works pertinent to juvenile justice system are available, little
specialized research in regard to diversions and alternative sentencing has yet been
conducted in relation to children in conflict with law in Bangladesh. However, there
is extensive literature on alternatives to detention and diversions with regard to many
developing countries where different methods of non-punitive sanctions have been
successfully established.

Another constraint arose due to time limitations. It was not possible for the
researcher to interview every child offender and every judge or every non-
governmental organization who works with juvenile delinquents and visit all the child
correction centres. While the broader context of the study draws attention to children
in conflict with law, it would not address the children who are in need of specific care
such as victims of offences or street children obviously because of the time limitation.

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1.8 Organization of the paper

The research is directed towards assessing the need for initiating alternatives and
diversion, in line with international law, and proposing several reforms associated
with these methods that would lead to a more rights-oriented justice framework for
the protection of the rights of children in conflict with the law in Bangladesh. It
focuses primarily on the question whether alternative sanctioning and diversion could
become operative means to promote child development in the juvenile justice system
of Bangladesh. The paper has been coherently organized pursuant to the research
objectives and questions. The research paper contains the following chapters:

Chapter: One- This chapter contains the method of the study, its objectives,
statement of problem and research question on which this paper based on.

Chapter: Two- This chapter based on the historical development of the juvenile
delinquency. It also explains the concept of juvenile delinquency and its cause as well
as types. Basically it is a conceptual idea chapter of the paper.

Chapter: Three- In This chapter I try to reflect the present scenario of juvenile
delinquency in Bangladesh. It also expresses the causes behind the juvenile
delinquency in Bangladesh.

Chapter: Four- This chapter contains the proceedings regarding juvenile court.

Chapter: Five- In this chapter I try to mention the legal provisions of different laws
which are exist in Bangladesh for ensuring juvenile rights. It also provides
international standard of juvenile justice system.

Chapter: Six- This is the concluding chapter. This chapter provides some
recommendations for the development of juvenile justice system in Bangladesh.

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1.9 Research Methodology

The method I have used here is Analytical method. This study would be based among
other, on primary sources such as books, articles, journals, case materials, Internet
sources, so that the analysis is taken with a multiplinary approach by keeping the
phase of justice method and socio-economic variables in considerations,

Moreover, the study was so designed as to generate data with maximum


reliability in the context of financial and other limitations such time and
administrative back up. Taking into consideration all these factors it was decided to
interview all the delinquent inmates. These inmates were fair representation of
delinquency of different other districts of Bangladesh.

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Chapter: Two

HISTORICAL DEVELOPMENT OF JUVENILE DELINQUENCY

2.1 What is 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. 2

Oxford Advance Learner’s Dictionary has defined delinquency, bad or


criminal behavior, usually of young people and increase in Juvenile delinquency 3

2.2 Who is 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. 4

 The Penal Code: The age of criminal responsibility in Bangladesh is above


nine (previously seven) years of age (S-82). 5

2 Ahmed M.B. and M.R. Islam (2010) 'Treatment of Juvenile Offender: Bangladesh
Perspective',Bangladesh Research Publication Journal vol 4 issue (3), 274-285.
3 Oxford Advance Learner’s Dictionary, page no. 404
4 Oxford Advance Learner’s Dictionary, page no. 840
5 Section 82 of The Penal Code, 1860 (Act No. XLV of 1860)

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 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” 6
 Convention on the Right of the Child (CRC): 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”.

Table-1: The concept of child has given varied definitions by different Acts and
Statutes in force in Bangladesh. 7

Name of the Act A child/juvenile is a person who is


under the age of
The Majority Act, 1875 18 years.
The Guardians and Wards Act, 1890 21 years.
The Child Marriage Restraint Act, 1929 Boy- 21 Girl- 18
The Suppression of Violence Against 18
Women and child, 2003
The Bangladesh Shrama Ain, 2006 14
The children act, 2013 18

6 Section 4 of The Children's Act, 2013 (Act No. 24 of 2013) ,Adopted on: February, 2013,
7 Ali, M.I. (2010) 'Towards Justice Delivery System for Children in Bangladesh: A Guide and Case-
law on Children in Conflict with Law'. Dhaka:UNICEF Bangladesh.

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2.3 What is Juvenile Crime?

In its simplest definition, crime is any specific act prohibited by law for which society
has provided a formally sanctioned punishment. This also can include the failure of a
person to perform an act specifically required by law.
Types of offenses or crimes, whether committed by adults or juveniles, are classified
by the seriousness of the offenses as follows: a felony is the most serious offense,
punishable by a sentence to a state institution (youth authority facility or adult
prison). Felonies generally include violent crimes, sex offenses, and many types of
drugs and property violations.

A misdemeanor is a less serious offense for which the offender may be sentenced to
probation, county detention (in a juvenile facility or jail), a fine, or some combination
of the three. Misdemeanors generally include crimes such as assault and battery, petty
theft, and public drunkenness. A fraction is the least serious offense and generally is
punishable by a fine. Many motor vehicle violations are considered infraction.
Juveniles, like adults, can be charge with a felony, a misdemeanor, or an infraction.
However, as we will discuss later, juveniles can also be charged with offenses that are
unique to youth. 8

2.4 Origin of the Juvenile Justice System

The law has long defined a line between juvenile and adult offenders, but that line has
been drawn at different places, for different reasons. Early in United States history,
the law was heavily influenced by the common law of England, which governed the
American colonies. One of the most important English lawyers of the time was
William Blackstone. Blackstone’s Commentaries on the Laws of England, first
published in the late 1760s, were widely read and admired by our nation’s founders.
“Infants” and “Adults” at Common Law In one section of his Commentaries,

8 Available at http://www.yale.edu last accessed 10/08/2016

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Blackstone identified people who were incapable of committing a crime. Two things
were required to hold someone accountable for a crime. First, the person had to have
a “vicious will” (that is, the intent to commit a crime). Second, the person had to
commit an unlawful act. If either the will or the act was lacking, no crime was
committed. The first group of people Blackstone identified as incapable of
committing a crime was “infants.” These were not infants in the modern sense of the
word, but children too young to fully understand their actions. Blackstone and his
contemporaries drew the line between “infant “and “adult” at the point where one
could understood one’s actions. Children under the age of seven were as a rule
classified as infants who could not be guilty of a felony (a felony is a serious crime
such as bur-glary, kidnapping, or murder). Children over the age of 14 were liable to
suffer as adults if found guilty of a crime. Between the ages of seven and fourteen
was a gray zone. A child in this age range would be presumed incapable of crime. If,
however, it appeared that the child understood the difference between right and
wrong, the child could be convicted and suffer the full consequences of the crime.
These consequences could include death in a capital crime. 9

2.5 Historical development of juvenile delinquency

Delinquency was available throughout all the time. In ancient Britain, even seven
years old boys were tried, convicted and punished as adults. There was no special
treatment for them, a hanging was a hanging. In Norway, for example, a thirteen
century penal code specifies that adult might lose both hands if stealing, children only
one’. However, United States of America is one of the pioneer countries on juvenile
justice. Social reformers started to create special facilities for troubled juveniles in the
late nineteenth century. Though Illinois introduced a separate system of criminal

9Available at
http://www.americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authcheckdam.pdf
(Last accessed 11/09/2016)

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justice in 1899, much had changed by 1909 when Judge Julian Mack famously
proposed in a Harvard Law Review article that a juvenile offender should be treated
“as a wise and merciful father handles his own child” (Scott and Laurence, 2008:16).
Yet the provision of special court and treatment was soon replicated throughout the
country and spread aboard in Britain (1908), France (1912), Spain (1918), and The
Netherlands (1921). 10

Today most of the states of the United Nations have a separate court system
for the children accused of an offence. They have the right to treatment that takes full
account of their age, circumstance and their needs. The courts generally handle two
types of juvenile offender: The delinquent child who has committed an act that is a
crime for adult under state law. On the other hand, status offenders are considered
unruly and uncontrolled beyond their legal guardian (Siegel and Welsh, 2008).

A multitude factors exist that contribute to the understanding of what leads to


engage in delinquent behavior. It is also true certainly social factors like poverty,
illiteracy, broken homes; lack of employment, peer pressure, lack of parental
guidance can be the best root causes to explain juvenile delinquency in Bangladesh.

In Bangladesh no separate juvenile justice law exists. The 2013 Children Act
is the main law concerning children in Bangladesh, but it deals both with children in
need of protection/care as well as children in conflict with the law on one hand, other
laws, such as the Penal Code, the Code of Criminal Procedure, the Suppression of
Violence against Women and Children Act, on the other hand, also contain provisions
regarding children in conflict with the law. At present, there are three specialized
juvenile courts established in the country and three specialized institutions for the
detention of child offenders, which have been renamed as the Child Development

10 The Innocent Digest, 1997:10

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Centers among them, two centers for boys are located in Tongi and Jessore and the
girls' centre is in Konabari. 11

Nearly all cultures possess a transition phase from childhood into adulthood.
As the world changed, so did the transition into adulthood. Whereas before, in most
now industrialized countries, this transition ranged from brief to almost non-existent,
it is now a significant part of a person's development. It is known now as adolescence.
In fact the popular term "teenager" wasn’t coined until the '50s to describe this new
group of people living through adolescence. It is believed that this new, drawn-out
transition from childhood into adulthood that is common in the western world has left
many adolescents in a sort-of limbo where they must seek to define their identity and
place in the world, and delinquency may provide a way to do that. This is supported
by the fact that crime is committed disproportionately by those aged between fifteen
and twenty-five. However, contrary to popular belief it is highly rare for teenagers to
become spontaneously aggressive, antisocial or violent simply with the onset of
adolescence. Also, although there is a high percentage of offending among all
teenagers, the majority of offenses which violate the law are one-time occurrences
and most often non-violent. Only about 5-10% of adolescents commit violent crimes.
In the United States, one-third of all of suspects arrested for violent crimes are under
eighteen.

The high rates of juvenile delinquency often receive great attention from
the news media and politicians. The level, amounts, and types of delinquency are
used by commentators as an indicator of the general state of morality and law and
order in a country, and consequently juvenile delinquency can be a source of ‘moral
panics’. 12

11 Available at http://www.ukessays.com (Last visited-12/08/2016)


12 Available at http://www.wiki.com (Last visited-12/08/2016)

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2.6 Types of Juvenile Delinquency

Juvenile delinquency, or offending, can be separated into three categories:


delinquency, crimes committed by minors which are dealt with by the juvenile courts
and justice system; criminal behavior, crimes dealt with by the criminal justice
system, and status offenses, offenses which are only classified as such because one is
a minor, such as truancy, also dealt with by the juvenile courts. 13

According to the developmental research of Moffitt (2006), there are two different
types of offenders that emerge in adolescence. One is the repeat offender, referred to
as the life-course-persistent offender, who begins offending or showing
antisocial/aggressive behavior in adolescence (or even childhood) and continues into
adulthood; and the age specific offender, referred to as the adolescence-limited
offender, for whom juvenile offending or delinquency begins and ends during their
period of adolescence. Because most teenagers tend to show some form of antisocial,
aggressive or delinquent behavior during adolescence, it important to account for
these behaviors in childhood, in order to determine whether they will be life-course-
persistent offenders, or adolescents-limited offenders. Although adolescent-limited
offenders tend to drop all criminal activity once they enter adulthood, and show less
pathology than life-course-persistent offenders, they still show more mental health,
substance abuse, and finance problems, both in adolescence and adulthood, than those
who were never delinquent. 14

 Sex Differences

Juvenile offending is disproportionately committed by young men. Feminist theorists


and others have examined why this is the case. One suggestion is that ideas of
masculinity may make young men more likely to offend. Being tough, powerful,

13 Woo lard & Scott, (2009). The legal regulation of adolescence. In R. Lerner & L. Steinberg,
Handbook of Adolescent psychology (3rd ed.)
14 Aguilar, Sroufe, Egeland, & Carlson, 2000

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aggressive, daring and competitive becomes a way for young men to assert and
express their masculinity. Acting out these ideals may make young men more likely
to engage in antisocial and criminal behavior. Also, the way young men are treated by
others, because of their masculinity, may reinforce aggressive traits and behaviors,
and make them more susceptible to offending.

Alternatively, young men may actually be naturally more aggressive, daring and
prone to risk-taking. According to a study led by Florida State University
criminologist Kevin M. Beaver, adolescent males who possess a certain type of
variation in a specific gene are more likely to flock to delinquent peers. The study,
which appears in the September 2008 issue of the Journal of Genetic Psychology, is
the first to establish a statistically significant association between an affinity for
antisocial peer groups and a particular variation of the dopamine transporter gene.

In recent years however, there has also been a bridging of the gap between sex
differences concerning juvenile delinquency. While it is still more common for males
to offend then females, the ratio of arrests by sex is one third of what it was 20 years
ago (at 2.5 to 1 today). This is most likely due to the combined effects of more
females being arrested (for offenses which did not get them arrested before), and a
drop in male offenses. 15

 Racial Differences

There is also a significant skew in the racial statistics for juvenile offenders. When
considering these statistics, which state that Black and Latino teens are more likely to
commit juvenile offenses it is important to keep the following in mind: poverty, or
low socio-economic status are large predictors of low parental monitoring, harsh
parenting, and association with deviant peer groups, all of which are in turn
associated with juvenile offending. The majority of adolescents who live in poverty

15 Cauffman, (2008) Bad boys or poor parents: Relations to female juvenile delinquency. Journal on
research on adolescence,

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are racial minorities. Also, minorities who offend, even as adolescents, are more
likely to be arrested and punished more harshly by the law if caught. Particularly
concerning a non-violent crime and when compared to white adolescents. While poor
minorities are more likely to commit violent crimes, one third of affluent teens report
committing violent crimes.

Ethnic minority status has been included as a risk factor of psychosocial


maladaptation in several studies, and represents a relative social disadvantage placed
on these individuals. Though the relation between delinquency and race is complex
and may be explained by other contextual risk variables, the total arrest rate for black
juveniles aged 10–17 is more than twice that as of white juveniles. 16

2.7 Causes of Juvenile Delinquency

The intensity and severity of juvenile offences are generally determined by the social,
economic and cultural conditions prevailing in a country. 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. Juvenile’s choice of delinquent careers and the consequent
perpetuation of delinquency are fostered by a wide range of factors, the most
important of which are described below: 17

 Economic and Social Factors

Juvenile delinquency is driven by the negative consequences of social and economic


development, in particular economic crisis, political instability, and the weakening of

16 Aaron, L. & Dallaire. Parental Incarceration and Multiple Risk Experiences: Effect on Family
Dynamics and Children's Delinquency. Journal of Youth and Adolescence.
17 Golub S,(2003) 'Non-state Justice Systems in Bangladesh and the Philippines', Paper prepared for
the United Kingdom Department for International Development, Boalt Hall School of Law University
of California at Berkeley

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major institutions. Socio-economic instability is often linked to persistent
unemployment and low incomes among the young, which can increase the livelihood
of their involvement in criminal activity.

 Family Factors

A consistent pattern of family risk factors are associated with the development of
delinquent behavior in young people. These family risk factors include a lack of
proper parental supervision, ongoing parental conflict, neglect and abuse (emotional,
psychological or physical). Parents who demonstrate a lack of respect for the law and
social norms are likely to have children who think similarly. Finally, those children
that display the weakest attachment to their parents and families are precisely the
same juveniles who engage in inappropriate activities, including delinquent conduct.
Children in disadvantage families that have few opportunities for legitimate
employment and face a higher risk of social exclusion are overrepresented among
offenders.

 Peer Influence

A person’s peer group strongly influences a decision to commit crime. For example,
young boys and girls who do not fit into expected standards of academic achievement
or participate in sports or social programmes can sometimes become lost in the
completion. Children of families who cannot afford adequate clothing or school
supplies can also fall into the same trap. Reserses believe these youth may abandon
schoolmates in favor of criminal gangs, since membership in a gang earns respect and
status in a different manner. In gangs, antisocial behavior and criminal activity earns
respect and credibility.

Like society in general, criminal gangs are usually focused on material gain.
Gangs, however, resort to extortion, fraud, and theft as a means of achieving it. The
young people, mostly boys, are vulnerable in joining gangs.

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 Mental Health Risk Factors

Several mental health factors are also seen as contributing to juvenile delinquency. It
is important to keep in mind, however, that a diagnosis of certain types of mental
health conditions--primarily personality disorders--cannot be made in regard to child.
However, there are precursors of these conditions that can be exhibited in childhood
that tend to end up being displayed through delinquent behavior. A common one is
conduct disorder. 18

 Individual Risk Factors

Several risk factors are identified with juvenile delinquency. A minor who has a
lower intelligence and who does not receive a proper education is more prone to
become involved in delinquent conduct. Other risk factors include impulsive
behavior, uncontrolled aggression and an inability to delay gratification. In many
instances, multiple individual risk factors can be identified as contributing to a
juvenile's involvement in harmful, destructive and illegal activities.

 Cultural Factors

Delinquent behavior often occurs in social settings in which the norms for acceptable
behavior have broken down. Under such circumstances many of the common rules
that deter people from committing socially unacceptable acts may lose their relevance
for some members of society. They respond to the traumatizing and destructive
changes in the social reality by engaging in rebellious, deviant or even criminal
activities.

In both developed and developing countries, consumer standards created by


media are considerably beyond the capacity of most families to achieve.

18 Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, American Psychiatric
Association, 2004.

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Nevertheless, these ideals became a virtual reality for many young people, some of
whom will go to great lengths to maintain a lifestyle they cannot afford. A criminal
career becomes one form of overcoming this situation.

 Urbanization

The growing industrialization and urbanization gave rise to the problem of juvenile
delinquency. Sociologists and criminologists consider delinquency as a result of
transitional phase, a process through which majority population is transforming from
peasants to industrial labour class. Mainly Bangladesh and other developing country
is an agro-based country. Industrialization has not taken expected pace. In its
transition from agriculture to industrialization, Bangladeshi society is undergoing
rapid social change. Since the transition is not yet complete, since Bangladesh is pre-
industrial, it is a mixed society, not completely traditional and not fully modern. An
examination of the economic, political, and religious institutions reveals a conflict
between traditional and modern values, neither of which dominates the lives of the
people. The conflict has given rise to anomie and creates greater vulnerability to
delinquent behaviour.

 Media

Television and movies have popularized the ‘cult of heroes’, which promotes justice
through the physical elimination of enemies. Many researchers have concluded that
young people who watch violence tend to behave more aggressively or violently,
particularly when provoked. Media bring an individual’s to violence in three ways.
First, movies that demonstrate violent acts excite spectators, and the aggressive
energy can then be transferred to everyday life. Second, television can portray
ordinary daily violence committed by parents or peers. Third, violence depicted in the
media is unreal and has a surrealistic quality. So the consequences of violent behavior
often seem negligible.

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 Substance Abuse Risk Factors

Substance abuse is found in a majority of cases of juvenile delinquency, two trends


are identified in regard to substance abuse and minors. First, juveniles are using more
powerful drugs today than was the case as recently as 10 years ago. Second, the age at
which some juveniles begin using drugs is younger. Children in elementary schools
are found to be using powerful illegal drugs. The use of these illegal substances or the
use of legal substances illegally motivates young people to commit crimes to obtain
money for drugs. Additionally, juveniles are far more likely to engage in destructive,
harmful and illegal activities when using drugs and alcohol.

 Identification

Through the process of identifying potential risk factors that spur a juvenile to
inappropriate and even illegal conduct and behavior, early interdiction can occur.
Positive intervention, through programming, education and counseling, can divert a
juvenile from a path that otherwise would result in delinquency as a child and crime
as an adult.

 Migration

People are migrating from villages to cities because of loss of land by river, and
unemployment. They take shelter in slum areas, pavements and streets and remain
deprived of basic necessities. Father and mother go out to earn their livelihood,
leaving their children uncared and unattended. In this situation politicians and many
other people used children (popularly known as tokai) in dawn to dusk strike, and the
children either picket or ransack cars or glasses of shops. Moreover, the criminals
utilize children in pick pocketing and petty thievery.

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 Surrounding Environment and Company

Sometimes juveniles become delinquent because of bad company and surrounding


environment. Due to tender age they cannot understand the far-reaching
consequences of their activities. They can be trapped into surrounding environment of
slum area, and smuggling zone. Because of evil company sometimes juveniles go to
brothel, consume drugs, and commit different kinds of criminal activities. 19

 Factors that increase Juvenile Delinquency

Although juvenile arrest rates have declined in the last several decades there are still
valuable aspects of community, programs, and protective factors that can decrease the
likelihood of juvenile delinquency.

1. Individual Risk Factors:

• Early aggressive behavior towards others and animals

• Substance abuse

• Association with antisocial or delinquent peers

2. Family and Community Risk Factors:

• Childhood maltreatment

• Parental criminality

• Poverty

19 Sheikh Hafizur Rahman Karzon , Theoretical and applied criminology.

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These are some of the top indicators that a juvenile is more prone to delinquent acts.
Spotting these risk factors and providing intervention early on, can greatly help
reduce the negative effects of these risk factors. 20

2.8 Current Trends of Juvenile Delinquency

The present situation with regard to juvenile crime and delinquency can be
characterized by following basic facts and trends: 21

A. There has been an observed increase in violent and aggravated crimes


among youth.
B. The number of drug-related crimes is growing.
C. The process of globalization and greater mobility of large population
groups have led to an increase in criminal activity associated with
intolerance towards members of other cultures.
D. The difficulties encountered by immigrants and their descendents in
certain countries are sometimes related to the high levels of group
crime deriving from the activities of ethnically based delinquent group.
E. In many cases juvenile crimes are linked to less obvious sources of
motivation; various action may reflects, for example, the standards of
particular subcultures, teachings or traditions deriving from religious
radicalism, or the compulsion to use of violence as a means of
contracting gender identity.

20 Available at http://shesabutterfly.hubpages.com (Last visited-12/08/2016)


21 Khan, B.U. and M.M. Rahman (2008) 'Protection of Children in Conflict with the Law in
Bangladesh',Save the Children UK, Dhaka: Bangladesh Programme.

22
F. Children and adolescent in difficult circumstances constitute ready
reserve for organized crimes, participation in armed conflicts, human
and drug trafficking, and sexual exploitation.
G. The disintegration of families, poverty, and the death of parents in
armed conflict or from HIV / AIDS has led to the forced independence
of many young people around the world.

23
Chapter: Three

JUVENILE DELINQUENCY IN BANGLADESH

3.1 Background of the juvenile justice system in Bangladesh

Before the partition in 1947, there was no specific law to deal with children in
conflict with the law. According to the Apprentices Act 1850, which was passed in
the Indian subcontinent, magistrates could exercise all the powers of a guardian of
any child above the age of ten and under the age of eighteen who was brought up by
public charity, crafts and employment (preamble, the Apprentices Act 1850). The
power of a magistrate extended to dealing with the commission of petty offences by
the child concerned (section 15, The Apprentices Act 1850). Later on, the
Reformatory School Act 1897 empowered legal governing bodies to establish
reformatory schools to provide special treatment to child offenders (Khan and
Rahman, 2008:11). But it was only applicable to a boy offender under fifteen years of
age (ibid). The Code of Criminal Procedure 1898 came into force and urges for
specialized treatment in dealing with a juvenile delinquent, such as provisions for
reformatory schools or probation service.
Consequently ‘the Indian Jail Committee ‘appointed by the Government of
India condemned the practice of sending juveniles to jail, recommended to set
upseparate machinery for the trial of child delinquents and suggested release on
probation in reward of good conduct, with or without supervision after release . Upon
these recommendations, the Children Act 1922 was adopted. It provided in section 2
that a child under fourteen years of age accused of any crime would be tried by a
juvenile court. Finally this Act was repealed by the Children Act 2013 which still is

24
the principal law in Bangladesh dealing with children in conflict with the law. The
Children Rules 1976 were then adopted to complement the Act of 2013.

Under the Children Rules 1976, two correctional centers were established in
1978, only for boys. The third correctional centre, for girls, in Konabari started
functioning in 2002. From 1978 to June 2002, statistical data are available of the
inmates remanded in police custody, discharged by the court, placed on probation and
remanded in the correctional centre (table 2). The table depicts the fact that children
delinquency has been a serious problem in Bangladesh throughout the years.

Table 2: Inmates remanded, discharged, on probation from 1978-June 2002

Year Total number Discharged Remanded Placed on


of children by the court in probation
remanded in correctional
police institutes
custody
1978-1982 801 260 509 42
1983-1987 2242 679 1525 38
1988-1992 1536 458 1030 48
1993-1997 1766 494 1175 53
1998- 2306 1206 1033 38
2002(June)
Source: Juvenile Justice Administration and Correctional Services in Bangladesh
(2002), Department of Social Services, Ministry of Social Welfare, Government of
People’s Republic of Bangladesh, Dhaka

However there is lack of reported evidence and statistics regarding trends and rates of
juvenile crime committed by girls in Bangladesh.

25
3.2 Cause of Juvenile Delinquency in Bangladesh
A considerable segment of people of this country are very poor. They live
below poverty line in terms of the true indicators of poverty. According to recent
statistics, around 6.5 million people of Bangladesh are living below poverty line. Due
to poor economic condition, parents cannot get their children to go to educational
institutions and assist them in developing good educational or vocational career.
Parents want their children to assist them in work field instead of going to educational
institutions. Sometimes parents cannot provide their children with all basic necessities
of human life, specifically food and clothing. Then the poor children set their legs out
towards criminal activities. The children do not know which activities are lawful and
which are not. They require some work which can provide their food and clothing.
Organized gangs deploy poor children in criminal activities by taking advantage of
their vulnerable economic condition. Recent statistics show that, huge number of poor
children (under 18 years of age) of Jessore and Khulna has been deployed in carrying
Phensydil, and other contraband drugs. Some poor children become members of pick
pocket gangs and petty thievery.
Problematic family is a crucial cause for the deviation of the juveniles.
Absence of father or mother due to death or divorce, lack of parental control, lack of
home discipline, bad relation between father and mother, presence of criminal among
the members of family are the principal indications of problematic family. Due to
these problems the mental growth of a child takes an abnormal course. In slum areas
adult males and females get married several times. They have children of their first
and second marriages. These children are not usually taken care of. These uncared
children become notorious criminal of different organized gangs. The juveniles of a
well-off family having father residing abroad derails due to lack of father's guidance.
They get huge amount of money from their father. Affluence and father's absence
makes the juvenile to involve with vicious circle.

26
Due to poverty, loss of land by river erosion, and unemployment lots of
people has been migrating from different parts of the country to Dhaka and other
metropolitan cities. Large scale migration from village to city started from 1980s.
Many women of rural areas came to city and started working in garment factories.
This titanic migration had degenerating affect on city life destroying social
equilibrium of Dhaka, Chittagong and some other metropolitan cities. The people
coming from villages usually take shelter in slum areas, pavements and streets. They
are deprived of basic necessities and basic amenities of life. Father and mother of the
family go out of their abode at the very first hour of the day for earning money
remaining their children uncared and uncontrolled. In this situation children
(popularly known as tokai) are used by the politicians in their political activities,
which include picketing and ransacking cars and shops. They are also utilized by the
organized gangs in their criminal activities.
Surrounding environment of slum area, smuggling zone and crime prone areas are
very vulnerable for the juveniles. When residing in such areas juveniles come in
contact with criminal pattern and learn criminal techniques, then they become
notorious criminals. Action movies and obscene pictures have negative impact on the
mindset of the juveniles. The violence and sexuality visualized in the movies make
the juvenile to go brothel and involve them with violent activities.
There is no single cause or simple explanation for the development of
delinquency behavior but there is different cause of delinquency. The different causes
are being followed. 22

22Malik, S. (2004) 'The Children Act 2013: A Critical Commentary', Save the Children UK, Dhaka:
Bangladesh Programme.

27
Family aspect of delinquency
Under family influence, the study could be made under the following subheads:
(a). Broken family : There are many reason of broken home. It may be due to
divorce, death of one parent, separation imprisonment of either father or mother.
(b).Immoral home: The children of home where there is sexual relation or drinking
is not considered bad or beating children etc, is a common feature and there is no
good treatment with children also, become easily the prey of crime.
(c). Parental rejection of the children: If a child does not get love and affection of
parents, or is not taken care of properly , or where there is lack of vigilance over the
child, that child easily adopts the criminal activities to produce hi mental tension.
(d). Over busy parents: If the parents are over busy, they are not able to look after
the child properly with the result that the children as they wish and become s
delinquent.
(e). Economic condition of the family: There is more incidences in the children of
too reach people. Sometimes on the other hand, the children of too reach people also
become criminal because they get more money than required.

Physical and Biological factor


Due to infirmity and poverty people do not get the respect in society with the result
that they become criminals. In order to compensate that handicap ness they indulge in
criminal activities. There are many reasons for juvenile delinquency of girls. They
suffer from sexual desire from childhood, they become overdeveloped in body, and
they indulge in sexual offences. They try to compensate that infirmity by doing anti-
social activities.

28
Psychological factor
Along with physical factors, psychological factors are also important in juvenile’s
delinquency. Many crimes are committed due to mental deficiency. In prostitution
many girls of lower mentally developed are found. 23

3.3 Features of Juvenile Delinquency in Bangladesh

All the political and socio-economic variables brought about changes both in
the rate and pattern of adult crimes as well as juvenile delinquency. Many social
factors are contributing to the commission and increase of juvenile delinquency in
Bangladesh. In Bangladesh, the frequency of juvenile offence has risen with the
increase of population. The socio-cultural and economic changes took place in the
context of growing industrialization, urbanization and global and national media
influence. The process of urbanization has affected the family life in our country,
causing the breakdown of family values and the subsequent growth of social
disorganization, which has worsened the juvenile delinquency situation in
Bangladesh.
The nature and extent of juvenile delinquency in Bangladesh, like any other
society, depends on the socio-economic reality of a child. The children of Bangladesh
involve themselves in different types of deviances, namely those are: stealing,
murder, pick-pocketing, fraud, truancy, fighting, sexual perversion etc. Children
brought up in a poorly organized family environment who have problematic
personality traits are found to engage in smoking, beggary, burglary, rape etc.
Age and sex occupy prominent place in the etiology of juvenile delinquency.
Both the variables are necessary in defining and explaining juvenile delinquency. Age
is very significant because aggressiveness, in most of the cases, will down with the

23 Available at http://emonhossain.hubpages.com last accessed 10/09/2016

29
growth of age. Sex should be taken into considerable to get an insight into the
problem of delinquency, adult and juvenile, as male constitutes overwhelming
majority in the ratio.
In addition to age and sex, the ecological distribution of crimes gives an
impression about the nature of offences and in which social environment, urban or
rural; they take place, as juvenile delinquency is largely an urban phenomenon,
though juvenile delinquency is not totally absent in villages. In rural areas the parents
usually handle the deviant children. In cities when family fails to control a derailed
child, there are agencies. Like police, probation officer, development centers, to deal
with the problem.

3.4 Trial Procedure for juvenile Delinquents in Bangladesh


Children Act forbids joint trial of a juvenile and an adult. Where any criminal court
found any juvenile charged for any offence with adult person, it shall try the juvenile
separately. Though under section 239 0f Criminal Procedure Code joint charges of
the persons accused in the same transaction is allowed, section 6 of Children Act shall
be an exception in this regard. If any court fails to comply with this section and tries
any juvenile along with adult persons, it shall be the violation of Children Act and
also beyond his jurisdiction. In shiplu and another v. state 24 High Court Division
declared the judgment of lower court in this ground. In a case where at the time of
commission of the offence a person was child but at the time of trial he exceeds 16
years of age, trial along with adult shall be valid. Though Children Act is silent in this
matter, the issue is settled by the High Court Division in Bimal Das v. state 25 where
Court observed:
“……..the age referred to in the section relates to the age when he is

24 49 DLR HCD,53
25 46 DLR HCD, 460

30
Charged with or tied for and not to the age when the offence has been
committed.”
In the trial of a case in which a child is charged with an offence, 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. 26
Criminal Procedure Code declares criminal court as open court. 27 But this rule
is being relaxed for the Juvenile Court. The trial of juveniles shall be held in camera.
Only people directly involved in the case and the officers of the court can be present
during the trial. The Court may also ask people not involved in the case to
withdraw. 28

3.5 Punishment, Probation and Rehabilitation of Juvenile Delinquents in


Bangladesh
According to the Children Act, no child shall be sentenced to death, transportation, or
imprisonment unless the court is of the opinion that the crime committed is of so
serious nature or the child is so unruly or depraved that he can not be committed to a
certified institute, the child can be sentenced to imprisonment. 29 a youthful offender
sentenced to imprisonment shall not be allowed to associate with the adult prisoners.
The following factors have to be taken into considerable by the court while passing
any order under the Children Act: 30
1. the character and age of the child;

26Section 17 of the children Act, 2013(Act No. 24 of 2013) ,Adopted on: February, 2013

27 7 BLC 2002 HCD, 409

28 Section 25 of The Children's Act, 2013 (Act No. 24 of 2013) ,Adopted on: February, 2013,

29 Section 33 of The Children's Act, 2013 (Act No. 24 of 2013) ,Adopted on: February, 2013,

30 Section 30 of The Children's Act, 2013 (Act No. 24 of 2013) ,Adopted on: February, 2013,

31
2. the circumstances in which the child is living;
3. the reports made by the probation officer; and
4. Such other matters required to be taken into consideration in the
interests of the child.
The juvenile Court may appoint Probation Officers from among suitable persons in
the district, if there is no Probation Officer in its area and may appoint a Probation
Officer for a particular Juvenile. The duties of probation officer shall be supervised
by the Juvenile Court and where no court exists, the court of sessions.

3.6 Steps taken for the Prevention of Juvenile Delinquents in Bangladesh


Government initiatives for meaningful and effective operation have been
intensified and taken with all seriousness in recent times. The government has so far
established three Correctional Institutes under the provision of the Children Act,
2013, each of which is consisted of one Juvenile Court, one Remand Home and one
Training Institutes. These institutes are:
1. National Correctional Institute for boys at Tongi, Gazipur,
2. National Correctional Institute for girls at Konabari, Gazipur,
3. Correctional institute for boys at Jessore.

Another Correctional Institute having similar programme components is going to be


established at Kashimpur, Gazipur. These institutes deal with the following
programmes :
1. Vocational Training programs,
2. Educational program,
3. Counseling for Correction and Rehabilitation,
4. Recreational Activities and many other programs.

Delinquency prevention is the broad term for all efforts aimed at preventing youth
from becoming involved in criminal, or other antisocial, activity. Because the

32
development of delinquency in youth is influenced by numerous factors, prevention
efforts need to be comprehensive in scope. Prevention services may include activities
such as substance abuse education and treatment, family counseling, youth
mentoring, parenting education, educational support, and youth sheltering. Increasing
availability and use of family planning services, including education and
contraceptives helps to reduce unintended pregnancy and unwanted births, which are
risk factors for delinquency. 31

We can prevent the juvenile delinquency by using these-


a. Social agencies
b. Private agencies
c. Government agencies

Under these Major agencies we may discuss the following agencies.


Family: It is main agencies of social control. Family has the right to control over the
member and stopped them from committing delinquent.
Neighborhood: Neighborhood co suggests delinquents that he can be a honorable
man in future. So a delinquent may give off his tendencies of delinquent.
School In every educational institution the proper education have to provides the
children and teach them the affects of anti-social activities. By which children grow
up as a best citizen.
Private agencies: Private agencies like voluntary association can take proper step to
prevent The Juvenile Delinquency. They can provide children the instrument of good
recreation, like the instrument of different play, Football, Badminton, Cricket, and so
on. By which children will give much attention towards the recreation. In this way
Juvenile Delinquency may be prevented. 32

31 McNamara, S. (2009) 'Childhood behind Locked Doors', UNICEF Bangladesh,


32Available at http://emonhossain.hubpages.com Last accessed 11/09/2016

33
Chapter: Four
JUVENILE COURT AND ITS PROCEEDINGS

4.1 Juvenile Court and Trial Proceedings

The Children Act calls for the designation of specialized Juvenile Courts, and
requires courts of all levels to follow the special juvenile court procedures when
hearing cases involving an alleged offender under the age of 18.When hearing
juvenile cases, the Court should sit in a different building or room from the ordinary
court sittings, or on a different day or time of day. 33 The Court is closed to the public,
and the media is prohibited from disclosing the child’s identity. 34

4.2 Establishment of Children’s Court and its functions

The now repealed Children Act 2013 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

33 Section 17 of The Children's Act, 2013 (Act No. 24 of 2013) ,Adopted on: February, 2013,

34 Section 28 of The Children's Act, 2013 (Act No. 24 of 2013) ,Adopted on: February, 2013,

34
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. 35

4.2 .1 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. 36 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.

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.

35 Section 16 of The Children's Act, 2013 (Act No. 24 of 2013) ,Adopted on: February, 2013,

36 Section 43 of The Children's Act, 2013 (Act No. 24 of 2013) ,Adopted on: February, 2013,

35
4.2 .2 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. 37

4.2 .3 Separate Trial System for 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.

37 Section 52(1), 52(2), 52(3), 52(4),52(5), 53 of The Children's Act, 2013 (Act No. 24 of 2013)
,Adopted on: February, 2013,

36
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.

4.2 .4 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.

It was observed in BLAST vs Bangladesh 38 as follows: “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 18 years.”

4.2.5 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

38 7 BLC (HCD) 85

37
child against whom the case or proceeding has been instituted feels home -like
atmosphere, during the hearing. 39

4.2.6 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.

4.2 .7 Home-like atmosphere

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

4.2 .8 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.

Operation of the Children Act 2013 is still remaining same for the cases which
were lodged before the court or police station. But after enactment of the Children

39 Section 19 of The Children's Act, 2013 (Act No. 24 of 2013) ,Adopted on: February, 2013

38
Act 2013 all cases about juvenile delinquent will be tried under or by the provision of
the present Children act.

4.2 .9 Sentencing Procedure

When making an order under the Act, the Court must take into consideration the
character and age of the child; the circumstances in which the child is living; and the
report from a Probation Officer as to the child’s background and family history. Upon
finding a child under the age of 18 guilty of an offence, the Court may impose one of
the following dispositions:

• Admonishment and discharge;


• Release on probation and under the supervision of a Probation Officer for a
period of up to three years;
• commitment of child to be detained in a certified institution (now a Child
Development Centre) for a minimum period of two years and maximum period
of ten years, but not extending under any circumstances beyond the age of 18
years; In the case of ‘Fahima Nasrin vs Government of Bangladesh and others’
it was held that the sentence of imprisonment passed in respect of the convicted
person who is considered as a juvenile, by the learned Sessions Judge and Judge
of the Juvenile Court, is erroneous. It does not reflect a correct interpretation of
the Children Act, 2013 and the juvenile is not liable to be sent to prison upon
the age of 18 years. (61 DLR, 2009)
• If the offence is serious in nature or the child is “of so unruly or depraved of
character” that he/she cannot be placed in a certified institution, the child can be
imprisoned for the maximum period which is specified for that offence under
the Children Act, 2013. But there are allegations that many children receive
sentences, which are inconsistent with the law.

39
4.2 .10 Legal Support and Legal Representation

Most of the children who come in conflict with the law and ultimately end up in jails
come from very poor families. They often do not have the ability to engage lawyers
for their defence. Most children appear in Court unrepresented. But the basic
principle of criminal justice system is that everybody should have the right to defend
himself/herself in the court of law. The legal system of Bangladesh is extremely
inadequate in this regard. Though Bangladesh is full of excellent lawyers they do not
serve the cases of the children. This clearly shows that the problem is in the legal
support system.

40
Chapter: Five
EXISTING LEGAL PROVISIONS REGARDING JUVENILE
DELINQUENCY IN BANGLADESH

5.1 Legal provision regarding juvenile Delinquency in Bangladesh

There is no comprehensive juvenile justice system in Bangladesh. Instead different


laws contain provisions regarding children in conflict with the law and this often
leads to confusion in regards to which law needs to be applied.

5.1 .1 The Constitution of Bangladesh

The Fundamental rights to life, personal liberty, and equal protection of law,
protection against arbitrary arrest and to speedy and fair trial as guaranteed by the
Constitution of Bangladesh under Article 31, 32 and 35(3) applies to all citizens.
However, Article 29 also encourages state to make special provision in favor of
women or children or other backward section of citizens.

5.1 .2 The Code of Criminal Procedure, 1898

Bangladesh inherited a sketchy juvenile justice system from the colonial laws, The
Code of Criminal Procedure, which provides for the trial of children in juvenile
courts. It state that any offender who is not punishable with death or life
imprisonment and whose age is under 15 years on the day of offence may be tried by
the chief judicial magistrate or chief metropolitan magistrate or by any Magistrate
specially empowered by the Government. 40

40 Section 29B of The Code Of Criminal Procedure, 1898 (Act No. V of 1898).

41
5.1 .3 The Bengal Jail Code and Prisons Act of 1894

The Bengal Jail Code and Prisons Act of 1894 provided separation of children from
adults in jails. In section 27 it provides that the prisoner who is under the age of 21
years shall be kept in separate prison from the other prisoner. And female prisoner
shall be kept in separate prison from male prisoner.

5.1 .4 The Penal Code, 1860

According to section 82 of the Code, a child under the age of 7/9 years is protected
from any action against his/ her criminal act. Section 83 states that if a child between
7/9 and 12 years of age is to be convicted of an offence, it must be proved that he/ she
had sufficient maturity of understanding to judge the nature and consequences of the
act done.

In 2004, the age of criminal responsibility has been increased from 7 to 9 years
providing protection to children less than 9 years of age from any judicial
proceedings so that they are not criminally liable for any crimes committed below 9
years of age, according to Penal Code (Amendment) Act, 2004.

5.1 .5 The Vagrancy Act of 1943

The Vagrancy Act of 1943 defines a vagrant as anyone who is found in public asking
for alms, those persons who do not work, who live on the earnings of others through
alms giving and who roam about instead of working at their place of residence. 41 The
arrest of children under the Act appears to be arbitrary and the threat of its use to
extort bribes from children has become “an instrument in the hands of police to keep
urban areas free of undesirable elements and to extract financial considerations.

41 Section 2 (9) of The Vagrancy Act, 1943 (Bengal Act No. Vii of 1943).

42
5.1 .6 The Children Act of 2013

The Children Act is the substantive law for juvenile offenders and their treatment. It
deals with both children in need of protection as well as children in conflict with the
law. It deals with custody, protection and treatment of children and trial and
punishment of youthful offenders.

5.2 Salient Features of the Children Act 2013

5.2 .1 Definition of Children and Age Determination

Section 4: A child means a person under the age of 18 years

Section 21: Whenever a person is brought before any criminal 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 and, for that purpose shall take such evidence as may be forthcoming at the
hearing of that case, and shall record a finding thereupon, stating his age as nearly as
may be.

5.2 .2 Bail and Arrest

Section 48: Where a person apparently under the age of 18 years is arrested on a
charge of non-bailable offence and cannot be brought forthwith before a court, the
officer-in-charge of the police station may release him/her on bail.

Section 44: Where a person apparently under the age of 16 years having been
arrested is not released on bail, the officer-in-charge of the police station shall cause
him/her to be detained in a remand home or a place of safety until he can be brought
before a court, on remanding for trial a child who is not released on bail, shall order
him to be detained in a remand home or a place of safety.

43
Immediately after the arrest of a child, it shall be the duty of the police officer
or any other person affecting the arrest to inform the Probation Officer of such arrest
in order to enable the Probation Officer to proceed forthwith in obtaining information
regarding the antecedents and family history and other material circumstances likely
to assist the Court in making its order.

Section: 45: Where the Child is arrested, the officer in charge of the police station to
which he/she is brought shall forthwith inform the parent or guardian of such arrest, if
found and shall also cause them to be directed to attend the court before which the
child will appear and specify the date of such appearance.

5.2 .3 Jurisdiction and Trial

Section 16: The powers conferred on a Juvenile Court shall be exercisable by the
High Court division, a Court of Session, a Court Additional Sessions Judge and of an
Assistant Sessions Judge and a Magistrate of the First Class.

Section 17: No child shall be charged with, or tried for any offence together with an
adult.

In the trial of a case in which a child is charged with an offence 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.

When 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.

5.2 .4 Punishment

Section 30: For the purpose of any order which a Court has to pass under the
Children Act, the Court shall have regard to the following factors: the character and

44
age of the child; the circumstances in which the child is living; the reports made by
the probation officer; and such other matters required to be taken into consideration in
the interests of the child.

Section 33: No child shall be sentenced to death, transportation, imprisonment for life
or imprisonment unless the court is of the opinion that the crime committed is of so
serious nature or the child is so unruly or depraved that he can not be committed to a
certified institute, the child can be sentenced to imprisonment.

Section 35: A court may discharge any young offender after due admonition, release
on probation of good conduct or commit a child to the care of a fit person executing a
bond with or without sureties

5.2.5 Confidentiality and Non-stigmatization

Section 23, 24, 25: The trial of juveniles shall be held in camera i.e. only people
directly involved in the case and the officers of the court can be present during the
trial. The Court may also ask people not involved with the case to withdraw.

Section 26, 81: The report of Probation Officer or any other report considered by the
Court be treated as confidential and publication of report of proceedings, photograph
of child leading directly or indirectly to the identity of such child is prohibited and
punishable by a fine of Tk. 50000 or imprisonment for 1 year..

Section 36: Words ‘Conviction’ and ‘Sentence’ can not be used in relation to
children and when a child is found to have committed any offence, the fact that she/he
has been so found shall not operate as a disqualification for any office, employment
or election under any law.

5.2 .6 Probation Officers for Specialized Assistance

Section 5, 6: A Juvenile Court may appoint Probation Officers from among suitable
persons in the district, if there is no Probation Officer in its area and may appoint a

45
Probation Officer for a particular juvenile. His duties are subject to the supervision of
the Juvenile Court and where no court exists, the Court of Sessions.

Duties of the Probation Officer include: visit or receive visits from the child at
reasonable intervals; see that the conditions of bond are fulfilled; report to the Court
as to the behavior of the child; advice assist and befriend the child and, where
necessary, endeavor to find him suitable employment; and perform any other duty
which may be prescribed.

5.2 .7 Institution and Accommodations

Section 2 (g): "Place of safety" includes remand home, or any other suitable place or
institution and where such institution is not available, in the case of male children
only, a police station in which arrangements are available or can be made for keeping
children in custody separately from other offenders.

Section 59, 60: "Remand Home" is a place established and maintained by


government for the purposes of detention, diagnosis, and classification of children
committed to custody by the Court or Police.

5.3 Principles of the administration of juvenile justice

1. State Parties recognize the right of every child alleged as, accused of, or
recognized as having infringed the penal law to be treated in a manner
consistent with the promotion of the child's sense of dignity and worth, which
reinforces the child's respect for human rights.
2. To this end, and having regard to the relevant provisions of international
instruments, State Parties shall, in particular, ensure that:
a. No child shall be alleged as, be accused of, or recognized as having
infringed the penal law by reason of acts or omissions that were not

46
prohibited by national or international law at the time they were
committed;
b. Every child alleged or accused of, or recognized as having infringed
the penal law has at least the following guarantees:
• to be presumed innocent until proven guilty according to law
• to be informed promptly and directly of the charges against him or her, and ,
if appropriate through his or her parents or legal guardians, and to have legal
or other appropriate assistance in the preparation and presentation of his or
her defense;
• to have the matter determined without delay by a competent, independent and
impartial authority or judicial body in fair hearing according to law, in the
presence of legal or other appropriate assistance and, unless it is considered
not to be in the best interest of the child, in particular, taking into account his
or her age or situation, his or her parents or legal guardians;
• not to be compelled to give testimony or to confess guilt ; to examine or have
examined adverse witnesses and to obtain the participation and examination of
witnesses on his or her behalf under conditions of equality;
• if considered to have infringed the penal law, to have this decision and any
measures imposed in consequence thereof reviewed by a higher competent,
independent and impartial authority or judicial body according to law;
• to have the free assistance of an interpreter if the child cannot understand or
speak the language used;
• to have his or her privacy fully respected at all stages of the proceeding.
• to maintain case file containing detailed information about the family history,
character, educational background and other considerable matters of that
child.

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2. States Parties shall seek to promote the establishment of laws, procedures,
authorities and institutions specifically applicable to children alleged as,
accused of, or recognized as having infringed the penal law, and in particular;
a. the establishment of a minimum age below which children shall be
presumed not to have the capacity to infringe the penal law;
b. Whenever appropriate and desirable, measures for dealing with such
children without resorting to judicial proceedings, providing their
human rights and legal safeguards are fully respected.
3. A variety of dispositions, such as care, guidance, and supervision orders;
counseling; probation; foster care; education and vocational training
programmes and other alternatives to institutional care shall be available to
ensure that children are dealt with in a manner appropriate to their wellbeing
and appropriate both to their circumstances and the offence.

5.4 International Norms and Standards for Juvenile Justice

These are some international instruments regarding juvenile delinquency and its
justice system.

5.4.1 United Nations Human Rights System

Two articles of the UN Convention on the Rights of the Child relate to the situation of
children in conflict with the law: Article 37 on Torture and Deprivation of Liberty
and Article 40 on the Administration of Juvenile Justice.

More specifically, Article 37 states that no child shall be subjected to torture,


cruel treatment or punishment, unlawful arrest or deprivation of liberty. Both capital
punishment and life imprisonment without the possibility of release are prohibited for
offences committed by persons below 18 years. Any child deprived of liberty shall be
separated from adults unless it is considered in the child's best interests not to do so.

48
A child who is detained shall have legal and other assistance as well as contact with
the family.

Article 40 states that a child in conflict with the law has the right to treatment
which promotes the child's sense of dignity and worth, takes the child's age into
account and aims at his or her reintegration into society. The child is entitled to basic
guarantees as well as legal or other assistance for his or her defence. Judicial
proceedings and institutional placements shall be avoided wherever possible.

The Committee on the Rights of the Child held a General Day of Discussion
at its ninth session in May 1995 on the Administration of Juvenile Justice. It
recommended that States adopt “a child-oriented system, that recognises the child as
a subject of fundamental rights and freedoms and stresses the need for all actions
concerning children to be guided by the best interests of the child as a primary
consideration”. 42

5.4.1.1 Provision of Complaints Procedures for Children Whose Liberty is


Restricted

Despite the recent focus of child rights organisations on the importance of children's
own views about decisions that affect them, children who are in conflict with the law
are rarely listened to. The following is an extract from the Implementation Handbook
on the Convention on the Rights of the Child which looks at article 12 of the
Convention (the right to be heard) in relation to children in conflict with the law:

42Available at http://www.crin.org/resources/infoDetail.asp?ID=483 Last accessed 11/10/2016

49
5.4.1 .2 Complaints procedures

The Committee has interpreted article 12 of the Convention as requiring the provision
of complaints procedures for children and has highlighted the particular need for
complaints procedures for children whose liberty is restricted. 43

The report on the Committee’s General Discussion on "Administration of


juvenile justice" notes that children involved with the juvenile justice system "were ...
often denied the right to lodge complaints when they were victims of violation of
their fundamental rights, including in cases of ill-treatment and sexual abuse..."
(Report on the tenth session, October/ November 1995, CRC/C/46, para. 220)

As noted above, the Committee adopted detailed recommendations


concerning children’s access to complaints procedures following its General
Discussion on "Violence against children" (Report on the twenty-fifth session,
September/ October 2000, CRC/C/100, p. 134).

Rule 24 of the United Nations Rules for the Protection of Juveniles Deprived
of their Liberty (see below for link) requires that "On admission, all juveniles shall be
given a copy of the rules governing the detention facility and a written description of
their rights and obligations in a language they can understand, together with the
address of the authorities competent to receive complaints, as well as the address of
public or private agencies and organizations which provide legal assistance.

For those juveniles who are illiterate or who cannot understand the language
in the written form, the information should be conveyed in a manner enabling full
comprehension."

43 UNICEF (2002), Implementation Handbook on the Convention on the Rights of the Child, pp. 503 -
04

50
Rule 25 says: "All juveniles should be helped to understand the regulations
governing the internal organization of the facility, the goals and methodology of the
care provided, the disciplinary requirements and procedures, other authorized
methods of seeking information and of making complaints, and all such other matters
as are necessary to enable them to understand fully their rights and obligations during
detention."

In addition, rules 75 to 78 require that juveniles have the opportunity to make


requests or complaints to the direction of the detention facility and his or her
authorized representative, to the central administration, the judicial authority or other
proper authorities through approved channels.

"Efforts should be made to establish an independent office (ombudsman) to


receive and investigate complaints made by juveniles deprived of their liberty and to
assist in the achievement of equitable settlements" (rule 77).

"Every juvenile should have the right to request assistance from family
members, legal counsellors, humanitarian groups or others where possible, in order to
make a complaint. Illiterate juveniles should be provided with assistance should they
need to use the services of public or private agencies and organizations which provide
legal counsel or which are competent to receive complaints." (rule 78)

5.4.2 Other mechanisms include

These are the some other international mechanisms which are related to the juvenile
justice system: 44

1. The General Assembly Resolution 60/231 on the Rights of the Child, adopted
on 11 January 2005, paragraphs 15, 21, 27, 28 and 29 on children and the
death penalty and children in detention

44 Available at http://www.crin.org/resources/infodetail.asp?id=9706 last accessed 11/10/2016

51
2. The Individual complaints mechanism of the Torture Convention (Article 22):
3. Article 9 of the International Covenant on Civil and Political Rights (ICCPR)
United Nations Standard Minimum Rules for the Administration of Juvenile
Justice (The Beijing Rules)
4. United Nations Guidelines for the Prevention of Juvenile Delinquency (The
Riyadh Guidelines)
5. UN Rules for the Protection of Juveniles Deprived of their Liberty
6. Guidelines on Justice in Matters involving Child Victims and Witnesses of
Crime, Economic and Social Council resolution 2005/20 of 22 July 2005
7. Guidelines for Action on Children in the Criminal Justice System, Economic
and Social Council resolution 1997/30 of 21 July 1997

52
Chapter Six
RECOMMENDATION AND CONCLUSION

6.1 Summary of the Research

Children are the future of the nation. One-third of Dhaka‘s twelve million inhabitants
live in slums (CUS, NIPORT, and MEASURE Evaluation 2006) and the city is
projected to grow by another 7 million people over the next ten years (Baker, 2007).
Among them around one third of the population is children. The slum children are
deprived from basic human security such as economic, food, health, environmental,
personal, community, and political security. The characteristics associated with slums
vary from place to place. Slums are usually characterized by urban decay, high rates
of poverty, illiteracy, and unemployment. They are commonly seen as ―breeding
grounds‖ for social problems such as crime, drug addiction, alcoholism, high rates of
mental illness, and suicide. In many poor countries they exhibit high rates of disease
due to unsanitary conditions, malnutrition, and lack of basic health care. Crime and
delinquency among the urban slum children of Dhaka city is more or less prevails in
all slums. It is often argued that crime and violence is the output of a complex set of
factors including rapid urbanization, persistent poverty and inequality, social
exclusion, political violence, the more organized nature of crime, and the growth of
an array of illegal activities. As such, experiences in the US, Europe, and increasingly
from developing countries themselves, have shown that crime and violence can be
substantially reduced through well-planned prevention strategies that go beyond
traditional police responses – especially at the local level. (Crime and violence and
the urban poor. Bangladesh Development Series paper no:17 , 2007). The behavior
patterns of children are influenced in part by what goes on in the environment in
which they live. Family members, friends, and peers all influence the development of

53
children. It is sometimes accompanied by a desire for material things, fashion, peer
pressure, cash and more. At times, the demands of wants and needs are intensified by
a society that consists of high mobility, social change, and is materialistic. Also,
social changes can create anxiety and disillusionment for children and thus they
commit crime and delinquent acts. Many other factors need to be considered before a
juvenile act becomes a delinquent act. The norms of one society may differ
significantly from another society. What could be considered delinquency in Africa or
Asia might not be delinquent behavior in the United States. Laws, cultural norms,
belief systems, traditions all play a determining role in various aspects of our lives.
These factors allow society to create ideals and expectations for their citizens.
Children‘s crime and delinquent behaviors are influenced not only by what goes on in
the environment in which they live, but also by what they observe in adults, what they
listen to, learn from peer groups, parents, relatives, and society at large. Juvenile
delinquency is not an inherent human condition, but rather is learned through
association, imitation, observation, pressure, needs, wants, influence and desires. My
study on juvenile delinquency in judicial system of Bangladesh tries to explain the
real judicial conditions of juvenile justice system in Bangladesh. It also indicates the
international standard regarding juvenile delinquency.

6.2 Recommendations

The aim of child justice is to provide special treatment of every child accused of a
crime. His reformation and reintegration in the society comes to be placed in top
agenda of the actors to provide him/her true dignity. Placement in a restrictive prison
setting with some correctional activities cannot be the best option for rehabilitation of
the children. It is better to involve the community in reforming the children in conflict
with the law as children get the opportunities to participate in the process. In
Bangladesh, with the gradual application of the set of un-codified social norms, moral

54
values, cultural practices and beliefs, community based services and other
diversionary programs could be deemed as one of the most important elements to
socially rehabilitate the children in conflict with the law (Save the Children, 2004:11).

In sum, the research suggests some urgent recommendations for non-


repressive approaches-alternative sanctions and diversion, in the law and on the
ground, so as to make the present juvenile justice system more rights-based and child
focused.

6.2.1 Legislative reforms


The informal mechanisms existing in the local government have to be revisited and
improved with some legal reforms. The limited application of restorative justice
forums existing in Bangladesh is desired to be extended to the metropolitan areas and
divisional headquarters.

Next in order, an amendment needs to be brought in the Children Act 2013


which would recognize non-custodial sanctions or alternatives to full confinement.
The amendment in the Children Act might confirm the informal local forums as
alternatives of juvenile courts which could have the exclusive jurisdiction to
adjudicate minor offences. The power to try serious offence such as murder, rape,
trafficking, activities relating to arms might be intervened by the juvenile court in a
home-like supervision. The amendment could empower the court additionally to
arrange police diversion or refer to child commissioner wherever it deems fit and just.

6.2.2 Executive/administrative interventions


To fulfil the substantive commitment of the government, a National Taskforce
comprised of key national and international stakeholders, has been established to
identify priority areas, provide the principal secretary to the Prime Minister with
strategic information and coordinate action on justice for children (UNICEF, 2010:3).
This taskforce needs to work on national efforts to emphasizing different child-
friendly sanctions in the children law of Bangladesh. Along with it, Social Services

55
Department needs to come up with some promising initiatives to make the present
system more child-centred. For example this department needs to prepare report time
to time on the effectiveness of rehabilitation activities and implement follow-up
programs. The report may be placed in the parliament and open for discussion for the
members.

6.2.3 Coordination between actors to initiate non-Custodial sanctions or


alternatives to deprivation of liberty
There have been calls by non-governmental organisations to introduce non-custodial
dispositions and alternative sentencing in the law as well as in the practice of
Bangladesh due to the potential harms brought by retributive criminal system.
Government in this regard is advised to pay attention to developing collaboration with
other stakeholders including social and justice sectors to arrange dialogue, seminars
for professionals with a view to creating awareness on alternative sanctions and
juvenile diversion.

6.2.4 Establishment of an office of child ombudsman/child commissioner


To protect and promote the human rights of children in conflict with the law in
Bangladesh, an independent child ombudsman or commission is a need of time. The
office could investigate complaints made by children if their rights are violated by
police or attorney or any other individual.

6.2.5 Formation of juvenile police force


It is true that the police have a meaningful role in dealing with children coming in
conflict with the law. It is only the police who arrests an offender and produces him
before the court. At district level, government is advised to establish Juvenile Police
Units to focus on juvenile offenders. It could report improper behaviour and offences
to the prosecutor and use diversion formally or otherwise. The Bangladesh Police
Authority can follow other country’s successful initiative in juvenile diversion. “In
Spain, police has shifted to a ‘softer’ approach to treating juvenile delinquents.

56
Juvenile Police Unit dealing with juvenile delinquents do not wear uniforms and
receive special training on skills that encourage juveniles to trust them and become
friendly” (Valles, 2006:290-291).

6.2.6 Developing education and training program


Article 24 of ECOSOC Resolution on Juvenile Justice declares, “persons having
contact with the child offender should receive an education in human rights, the
provisions of the CRC, and other UN documents relating juvenile justice”. According
to Wernham et al.(2005:10), the important initiative is to change the traditional
understanding, attitudes to children offender and develop skills of professionals
including police, judge, prosecutor, NGOs so that “every child offender who comes
into contact with them is treated as we would want our own child to be treated”. Staff
trainings, education, campaigning on alternative sanctions and diversion thus need to
be run in Bangladesh to create awareness on among professional involved with justice
process and the ordinary people of the society.

6.3 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

57
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