Justice delivery for children in conflict with law

The recognition that `children have rights' is comparatively a very recent concept. Most of the ancient civilisations did not recognise that children have rights. Children were seen as property of their parents, and were subjected to various forms of torture, and inhuman and degrading treatment. In Bangladesh, children constitute nearly 50 per cent of the total population. This basic fact underlines the importance of protecting the rights of our children.
In the book 'Towards a Justice Delivery System for Children in Bangladesh --- A Guide and Case Law on Children in Conflict with the Law', Justice M Imman Ali, a sitting judge at the Appellate Division of Supreme Court of Bangladesh, attempts to provide guidance to the various professional groups working with children on the interpretation and application of the provisions of the Children Act 1974 and Children Rules 1976, and the case-law relating to children in conflict or contact with the law. The book is basically based on a series of lectures that the author has given as a resource person as part of the 'Child Rights and Justice for Children Multi-disciplinary Training Programme' organised by Legal Education and Training Institute (LETI), Bangladesh Bar Council with the support of UNICEF. In examining the provisions of the Children Act and the relevant case-law, the author attempts to discuss the various issues of how they would arise at the various stages of the juvenile justice process, i.e. pre-trial, pending trial and post-trial.
The book is divided into nine chapters. The first chapter 'Introduction' portrays what has prompted the author to write this book. The objectives, methodology and sources and scope & limitations of the book are discussed briefly in this introductory chapter. Chapter II sheds light on 'The International Legal Framework on Child Rights and Justice for Children'. It is mainly a background to the other chapters of the book, which deal with national legislation and case-law, as it is important for professionals to have in-depth knowledge about this subject. The chapter provides a brief overview of the history of the concept of child rights from the late 19th century, when the child was first recognised as a legal entity by itself, followed by three generations of rights with the most important international instrument for children, the Convention on the Rights of the Child, adopted in 1989. The chapter addresses the question of the legal status and relevance of the convention in the domestic legal order on the basis of the recent case-law. In addition, it examines the other relevant international instruments that contain more detailed provisions in this area. Finally, it provides a glance at the international standards relating to the other categories covered by the Children Act, namely, child victims and witnesses and the children in need of special care and protection.
Chapter III has `Children in Conflict with the Law under the Children Act, 1974', which examines the aim of the Act and provides an overview of its general provisions. In particular, this chapter addresses one of the most contentious issues of the Children Act, namely, the definition of a child as a person under 16 years old versus the definition of the UN Convention on the Rights of the Child (CRC) as a person below the age of 18. The issue of age determination is very important for the application of the Act, as children (under the definition of the CRC) who are above 16 are excluded from the application of the Act. In addition, not all children below 16 can be held criminally liable for their acts. The chapter discusses the Minimum Age of Criminal Responsibility (MACR) under the Penal Code and contrasts this with the MACR as required by the CRC Committee. Furthermore, it focuses on the determination of age by the police. The fourth chapter is titled 'Arrest, Bail and Pre-Trial Detention'. It deals with the discretionary power of the police to arrest children for minor offences and when they are first-time offenders; the relevant procedures such as tracing of the child's parents under the Children Act upon arrest of the child and the role of the various actors involved, in particular the police and probation service; the possibility of granting bail by the police and the Magistrates' Court and temporary custody of children.
Chapter V deals with the` Jurisdiction of the Court'. It focuses on the question of competent courts for cases of children in conflict with the law that go to trial. It discusses the jurisdiction of the Juvenile Court, narrates which courts can act as the Juvenile Court, how to decide jurisdiction and when a case needs to be referred to another court such as a Court of Sessions. In particular, it examines the two conditions that the Juvenile Court needs to meet before it can declare itself competent to hear a case, namely, the jurisdiction over the person and over the offence. The sixth chapter 'Trial Procedures before the Court' sets out the procedures that need to be followed in the Juvenile Court including the requirement of a separate trial of the child, the sittings of the court, the mode of the trial including protection of privacy, presence of the child, attendance of the parents and other constitutional guarantees for a fair trial.
Chapter VII has 'Sentencing by the Court'. It discusses the process and duties of the court in adjudicating a case under the Children Act.  This chapter in particular focuses on the guiding principle of the best interests of the child and how this can be determined. In addition, it examines the options of the court in disposing of a case concerning a child in conflict with the law. Chapter VIII sheds light on the` Custody and Detention' and  addresses the procedures and conditions for custody and detention of offenders, the possibilities for release as well as custody of victims and children in need of care and protection.
The 'Conclusion' part summarises the key principles of the separate regimes for children under the Children Act. It outlines what issues need to be addressed to move towards a justice delivery system for children in Bangladesh. The author rightly concludes: "The aim of the children's laws and the international treaties, covenants, conventions, rules and protocols is to see that children are guided away from crime and rehabilitated as worthy citizens. At the same time the modern trend is to involve the victim in the decision-making process so that there will be an element of reparation and feeling that justice has been done. The ultimate aim is to create a situation by involving the State and the Community in order to minimize deviant behaviour."
Needless to say that the publication will function as a guide and reference book for the various professional groups dealing with children in conflict with the law including the academia, civil society, donors and also the general public to advocate strengthening promotion and protection of children's rights in Bangladesh.
The writer is an independent researcher.
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Towards a Justice Delivery System for Children in Bangladesh --- A Guide and Case Law on Children in Conflict with the Law
By Justice M Imman Ali
Published by Unicef Bangladesh,
September, 2010
ISBN: 984-70292-0011-7;
 pages 625