The Honourable Justice Muhammad Imman Ali was elevated as Judge of the Supreme Court of Bangladesh, High Court Division in February 2001 and Appellate Division in February 2011. Previously, he had been Deputy Attorney General for Bangladesh from September 1998 to February 2001. On December 2014, he was honoured with the ‘Juvenile Justice without Borders’ International Award by the IJJO for his dedication to the protection of children’s rights. He has become an inspiring example of the defence of children’s rights for many countries in the Asia-Pacific region.
What sparked your interest in children’s rights?
In 2006, I presided over a Division Bench in the High Court Division of the Supreme Court of Bangladesh. During the course of hearing a death reference case involving a 15 year old who was sentenced to death for the rape and murder of an eight year old girl, we realised that there was almost total ignorance of the provisions of the Children Act, 1974. There was apparent hostility towards children who misbehaved and were alleged to have committed crimes. The case was one of no legal evidence, because the confessional statement was found to have been extorted by police torture as admitted by the victim girl’s father. There was no other evidence against the accused. So, instead of writing a two page judgement acquitting the boy, I decided to expound the law on juvenile justice and included reference to international instruments and norms as well as decisions from other countries. I also started training judges, prosecutors, advocates, probation officers, social workers and others working on cases involving children. Based on my lectures, I compiled a book as guidance for actors in the juvenile justice arena.
What are the main factors you see contributing to the vulnerability of children in Bangladesh?
The most prevalent factor causing vulnerability is the perpetual cycle of poverty, which is linked also with the lack of education. Socio-cultural factors, such as patriarchy makes girls particularly vulnerable. Children from broken families, those affected by natural disasters such as cyclones, floods, river erosion, drought etc., are forced to leave their original homes and find themselves without shelter and means of support. Orphans and children of single parents are also naturally in a vulnerable situation. Either parent’s remarriage exposes the child to violence from and deprivation by the non-biological parent. Trafficking of children leads to their vulnerability.
What are the main difficulties you have encountered in the application of international standards for children within the Bangladeshi justice system?
The biggest hurdle has been the hostile attitude of adults towards children who do not conform to the perceived notions of good behaviour. The vast majority of the people who matter are still of the “old school” of thought who believe that children must be given a good beating for them to understand the difference between right and wrong. Those in the higher echelons of society do not care to stop and think about the circumstances of the children who develop criminogenic behaviour. The judges who sit to hear the cases of alleged offenders are by and large all from the middle and higher social and economic strata.
The lack of awareness of the beneficial provisions enshrined in the international instruments in respect of children, and ultimately for the uplifting of any society and the common reluctance to try anything new is a huge barrier to the application of international norms.
Which are the main trends in terms of juvenile justice reform?
Changing the law to adopt the provisions of international instruments is the new trend. We now have the Children Act, 2013 which incorporates the provisions of the Convention on the Rights of the Child (CRC) which are relevant to children in conflict with the law as well as those who come into contact with the law as victims or witnesses. New Rules are in the draft stage. These will allow implementation of the concept of diversion from the time of arrest and beyond. Other alternative measures will be put into action. Alternatives to detention will have to be considered as part and parcel of the newly introduced concepts. There will be better and well-monitored facilities for custody of children who cannot be given to the custody of family or relatives.
What improvements have you seen in ensuring due process of the law for young people since the enactment of the Children Act in 2013? How important is it to the protection of children in contact with the law?
Rules which are needed to implement some of the newly enacted provisions are in the draft stage. Nevertheless, the statute has enabled functioning of specific Children Courts, one in each district, compared with only two specific juvenile courts which existed under the old law. Although there are teething problems, hopefully there will be quicker disposal with dedicated courts specifically for children. The provision with regard to mandatory legal representation before a case can proceed if the Court is already in place.
Child Affairs Desks have been set up in some Police Stations and more are in the process. Under the new law, the Child Affairs Police Officer will be able to set in motion diversionary measures; failing that, he can grant bail. In this way the need to detain children in safe homes will be greatly reduced. In the long run, when the new concepts are fully in place, fewer cases will need to go to court.
What is the current state of the development of alternative measures to the detention of children within the Bangladeshi legal system?
The concept of alternative custody for vulnerable children and those in contact with law is in the new legislation, but requires Rules to put it into practice. When in force, the Rules will allow custody to be given to parents or extended family members or to a suitable person in the community. Failing custody to any person, a child may be sent to a suitable institution.
The legal age for marriage in Bangladesh is 21 years for boys and 18 for girls. Nevertheless, Bangladesh has some of the highest rates of child marriage in the world. What are the main causes of this phenomenon and what measures would be most effective to reduce these rates?
Child marriage in Bangladesh is by and large poverty driven. There is a vicious cycle of poverty preventing children from getting education and that in turn causes poverty. The following may be considered specific reasons for child marriage:
* The most prevalent reason is sexual harassment of girls. Poor parents who both work are afraid of leaving a grown-up girl alone in the house. So, the easiest solution is to marry her off so that her husband can look after her.
* Inability to provide food and clothing often leads to early marriage.
* Fear of having to pay higher dowry as the girl gets older results in decision to marry girls at an early age.
* Lack of education of girls leads to ignorance of the dangers and drawbacks of early marriage and results in lack of resistance from the girls.
What is necessary most of all is the drive to educate girls. For this to be effective there needs to be provision for:
* Suitable facilities in school for adolescent girls.
* School curriculum to include instruction on reproductive health matters including child marriage, hygiene, etc.
* Counseling for parents/guardians about the harms brought by child marriage and benefits which will be brought by educating the girls.
The interview was taken by The International Juvenile Justice Observatory on 29th July of 2015.
Lawyersclubbangladesh.com publishes here the abridged version of the interview. To get the full version of it please visit this link: IJJO Interviews- Muhammad Imman Ali, Judge of the Supreme Court of Bangladesh