Juvenile Justice in Nepal

Term Paper

On

Social Context of Children in Nepal

Juvenile Justice

Submitted to: Submitted by:

Dr. Bala Raju Nikku Bidhya Joshi

Kadambari Memorial College Bikina Chhetri

Date: 21st November, 2010

Juvenile Justice:
Juvenile justice is the area of criminal law applicable to persons not old enough to be held responsible for criminal acts. In most states, juvenile justice law is applicable to those under 18 years old. Juvenile law is mainly governed by the juvenile justice codes of states. The main goal of the juvenile justice system is rehabilitation rather than punishment.
Juvenile justice is administered through a juvenile or family court, however, but juvenile court does not have jurisdiction in cases in which minors are charged as adults. Where parental neglect or loss of control is a problem, the juvenile court may seek out foster homes for the juvenile, treating the child as a ward of the court.
The Federal Juvenile Delinquency Act defines juvenile delinquency (any act that is otherwise a crime, but is committed by someone less than 18 years of age) and sets forth rules by which state laws must comply with regard to juvenile court procedures and punishments. The purpose of the act is to assist states and local communities with funding and standards to be used in providing community based preventative services to youths in danger of becoming delinquent, training individuals in occupations providing such services, and providing technical assistance in the field. (US Legal)

Juvenile Justice in Nepal:

Nepal is the state party to the CRC (Child Right Convention) and a majority of other international and regional human rights instruments that protects the rights of the child in general and the rights of the child in conflict with the law in particular. The children act 1992 of Nepal is a legal framework introduced by the state after the ratification of CRC in 1990 as a state parties of CRC are obliged to fulfill its responsibilities towards the protection of the rights of the child.

Nepal has almost ratified most of the major international human rights instruments including convention on the rights of the child (CRC) 1989. Enactment of children’s act, 1992 can be conceived as an initiative of the government towards framing legal standards for children as a separate mechanism. Similarly, court rules also deals with some issues relating to children. Recently enacted juvenile justice (procedure) rules, 2007 is a step towards juvenile justice system in the country. Crime commited by an adult and child are seen with the same perspectives. There is no separate justice system to deal with the case of juveniles and adults except for differences in punishment based on legally acknowledged differences in criminal liability.(PPR Nepal, 2007)

Nepal doesn’t currently have a comprehensive juvenile justice system. Although children act was introduced in 1992 to govern procedures for dealing with the children in conflict wit the law and children in need of protection, the implementation of the law has been fragmented. Children are not systematically separated from adults at all stages of the criminal proceedings and juvenile justice is not yet treated as a fully separate and independent system. (UNICEF, 2006)

The children act is not clear whether a child may be sent to a prison to undergo punishment and be kept in police custody during trial. The government of Nepal while prescribing the juvenile bench has not accomplished its responsibility to nominate the social worker and child specialist in audition to the judge. (CeLRRD, 2003)

• The minimum age of criminal responsibility in Nepal is 10. The UN committee on the rights of child has expressed concerned that this age is too low and has recommended raising it to comply with international standards i.e. 18 years.

• Police are prohibited from using handcuffs, fetters in the arrest of the child and interrogations must be conducted in the presence of the public prosecutor or government attorney. In practice however these safeguards are not consistently respected and the investigation systems are not child friendly.

• The government of Nepal has established only one correctional home which is located in Kathmandu valley.



Status of Children in Nepal:
The population of children (below 18 years of age) is 12.2 million - around 48% of total population. Every week, 2000 children or every day 191 children lose their lives due to the country's indifference towards them. The under-five mortality rate is 59 out of every 1000 live births. Out of 3.6 million children under five years of age, 62% do not have access to basic health services. Every year 50,000 children die of preventable diseases. 39% children do not get to finish primary education. 2.6 million Children are working as child labourers in order to make out a living. Among them, 127,000 children's lives are in danger. Child marriage before the age of eighteen is at 51%. Every year, 12,000 children and women are trafficked in Nepal. Among them, 20% of children are below 16 years of age. Children are trafficked for domestic work, carpet weaving, circus, forced marriage and prostitution. (World Vision International Nepal, 2009)
Fig.2: Nepal Demographic and Health Survey, 2006

Demographic Indicators to the top

Population (thousands), 2008, under 18 12666
Population (thousands), 2008, under 5 3535
Population annual growth rate (%), 1970–1990 2.4
Population annual growth rate (%), 1990–2000 2.5
Population annual growth rate (%), 2000–2008 2.1
Crude death rate, 1970 21
Crude death rate, 1990 13
Crude death rate, 2008 6
Crude birth rate, 1970 44
Crude birth rate, 1990 39
Crude birth rate, 2008 25
Life expectancy, 1970 43
Life expectancy, 1990 54
Life expectancy, 2008 67
Total fertility rate, 2008 2.9
% of population urbanized, 2008 17
Average annual growth rate of urban population (%), 1970–1990 6.4
Average annual growth rate of urban population (%), 1990–2000 6.6
Average annual growth rate of urban population (%), 2000–2008 5.2
Fig 1: Unicef Nepal (Updated on March 2nd 2010)


PROBLEMS FACED BY CHILDREN:

We recognize that the children of Nepal are vulnerable to many problems. Many of them are already victims of these problems. Some of these problems are as follows:-

Poverty:
Because of poverty of their families, children are deprived of sufficient food, proper nutrition, adequate shelter, minimum education and basic health services, and many other things that children deserve.

Poor infrastructure & systems:
Lack of schools and teachers for children, resulting in children not having access to quality education. Lack of children’s hospitals and doctors specializing in child care & diseases, resulting in children not having access to the medical care they need. Lack of sanitation and safe drinking water, resulting in many children falling sick and dying of communicable diseases. Lack of judicial and penal systems that cater to the special situation of the child, resulting in children being subject to adult laws and being put in jails with adult inmates. Lack of systems providing for the care of babies and children of mothers who are incarcerated in jails, resulting in babies and children growing up in jails, and/or children left to fend for themselves when their mothers are taken away from them. Owing to lack of childcare centers, children whose parents have to go out to work are left alone by themselves and sometimes even tied up by their parents to prevent them from leaving the house or preventing them from getting into hazardous situations. Due to the lack of proper training for the teachers the students are loaded with studies and homework. As a result children lack proper environment to learn in a healthy and enjoyable way. Many children homes are not well organized or run as a result children do not get proper care and love.

Caste system:
Due to the caste system in villages, low caste children are often deprived of participating in various development activities together with children from high caste.

Exploitative child labor:
Many children are subject to exploitative and/or bonded labor in many industries in Nepal. These industries include (but are not limited to) factories and carpet industries, agricultural farms, tea gardens, transportation industry, hotels and restaurants including domestic helpers. In spite of the hard work they have to do, they are paid very low wages or no wages at all. Children in some backward communities are even bound to slavery to pay off the debts of their parents.

Street children:
Thousands of children are estimated to live on the streets without proper shelter. Due to family disintegration, poverty, illiteracy, domestic violence, lack of proper parenting skills, attractions of city life, persecution from the Maoist insurgents and/or the government forces, or other reasons, many children from rural areas are migrating in the cities. Whatever the reason for their migration, all the children meet the same fate in one way or another when they reach the city. They become deprived of shelter, food, education, security and all other basic needs that are essential for their physical, mental, and other areas of development. Most of them are living by scavenging in the streets, indulging in drugs and alcohol abuse and are subject to sexual abuse. The plight of street children can be seen in the crowded streets of Kathmandu and other major cities of the country.

War victims:
In many ways, children have been adversely affected by the armed conflict in Nepal. They and/or their parents have been killed or disabled. They have been psychologically traumatized. Their education has been interrupted. They have been displaced from their home towns. Their physical development has been affected by the lack of nutrition as a direct result of the war. A number of children have even been forced to become child soldiers. In the 12-year-long armed conflict, 475 children died due to internal armed conflict. Among them 205 were girl children. In the course of armed conflict many incidences of sexual abuse of girls have been made public. Similarly, many children including girls have been displaced to city areas and are involved in exploitative labor sectors. (CWIN 2007)
Drug and Alcohol abuse:
Many children are drug abusers and/or frequently consume alcohol. This leads to deterioration in their physical and mental development, and to their being vulnerable to exploitation by drug pushers and other persons who prey on their need for drug and alcohol supplies. Many times they are involved in gang fighting and giving trouble to society. Their families and society do not behave and treat well to the drug abusers.

Disease & HIV/AIDS infections:
Every year many children die due to lack of immunization, preventable and communicable diseases, and nutrition related diseases. The examples are acute respiratory illnesses including TB, diarrhea, malnutrition and malaria, HIV AIDS.

Disability:
Many children are suffering from disability like speaking and hearing disability, mobility disability, disability due to accidents, mental disability. The disabled are looked upon as a burden for society and are stigmatized. There are cases of many families hiding disabilities because of the stigma, instead of seeking help. Due to poverty and lack of awareness, they are not properly diagnosed, treated or rehabilitated.

Malnutrition:
A significant number of children die every year due to malnutrition. The main cause is food deficiency and lack of knowledge about nutritional and balanced diet. Girl children are given less food and less nutritionally-balanced diets. Malnutrition during childhood adversely affects children throughout the rest of their lives.


Forced marriage:
Many children are forced into marriages and have children at a very early age. As a result they lose their childhood and have to undertake a lot of responsibilities while they are still immature in many ways. Many young mothers die due to birth related complications and many suffer from anemia.

Orphans / children with single parent:
Poverty, war, disease and other factors have resulted in the early deaths of many children’s parents, resulting the children being orphaned. They are deprived of proper food, shelter, education, health care and many other things. They have problems getting citizenship certificates as well as parental property. The orphans have problem of socialization. Their behavior and personality are often found different from children having parents.

Abortion:
Abortion is legal in Nepal, resulting in the killing of many unborn children for reasons like being of the wrong sex or unwanted pregnancy.

Family disintegration:
Families in Nepal are disintegrating – parents are separating or divorcing, resulting in one-parent families that are usually not as capable of protecting and nurturing children as well as two-parent families, owing to the fact that the single parent often has to leave the child alone in order to find work. They are deprived of getting citizenship certificates and also their parental property. Many children staying in the family having stepmother or stepfather are abused and ill-treated in many ways.

Neglect:
Owing to the poor status of children in Nepali society, children are often neglected, in that they are not given the adequate nutrition, love, care, protection, education, medical access, and other help that they need to grow into adults who are adequately developed in all areas. Owing to gender discrimination, girl children are often times more neglected than boy children. Parents who are mentally ill, alcoholic or drug abusers often neglect their children in many ways.

Sexual exploitation and trafficking:
Many children are subjected to sexual abuse even in their own homes, and many are sold by their own parents or relatives into the sex trade to earn money for the family. A trend of Dewaki in some communities of the far western region in Nepal results in girls being offered in the temple for the priest’s sexual use. A number of children are taken into other countries to serve in the sex trade.

Other trafficking:
Many children are trafficked for non-sexual purposes, for example, to work as beggars, slave laborers, agricultural workers, and domestic workers or as circus workers in different cities in India. Some children are even said to be trafficked for their body parts to be used in transplants.
Role of social worker:
Social workers has been appointed in juvenile bench but still they are not able to handle and make their presence in all cases. They are not given effective roles as a social worker. They have low decision making power and are only supposed to prepare a report. But, inspite of all these if they are given more decision making power then they can play effective role and can be a change agent from the starting. Social worker can also play the role of analyzer, researcher, advocate, psychologist and fact finder. They also helps in care and protection of children in conflict with law.

Case:
Dharmendra Barai was 16 years old and was a seventh grader at Gargatti High School, Gonaha VDC-8, Rupendehi, close to where he lived (more details can be found in the letter below). According to the information from Advocacy Forum, an NGO, the boy was arrested by the police at around 12.30pm on 3 July 2010 regarding his alleged involvement in a bicycle collision in which a man had died a day earlier. We are told that police had already arrested and interrogated Dharmendra’s elder brother Mahendra Barai that morning. ASI Nar Bahadur Khatri, in charge of Khajuriya Police Post, and two plain clothed policemen were present at Dharmendra’s arrest, and various local villagers witnessed it. He was taken to Khajuriya Police Office and kept in a detention cell along with a Parsuram Pasi, who had been arrested at 10am that day regarding the same incident. According to Parsuram Pasi, that evening the police took Dharmendra to a separate room for about one hour, but it is unknown what happened during this time.

Later that evening 20 to 25 villagers - including members of Dharmendra's family - visited the police office to ask for his release, stressing that he was firstly a minor, and secondly, had not committed a crime. They were able to visit Dharmendra, who was in tears, and who told them that the police had aimed their rifles at him and threatened to shoot him. An ASI Nar Bahadur Khatri reportedly announced that the boy would be released at 8am the next day and told the visitors to return then; they left at around 10.30pm. We are unable to determine what happened to the boy after this. However shortly after midnight, and after the evening meal, Dharmendra asked to be brought out from the cell claiming that he was dizzy, had a headache and felt that he might die; Parsuram also reports feeling that he might lose consciousness. After some time one hour ASI Kahtri allowed the boy out of the cell, who reportedly fell to the ground, frothing from the mouth. The two detainees were taken from the station to Bhim Hospital Bhairahawa at around 1am.

At around 4am ASI Khatri called Dharmendra's family to tell them that he had been admitted to the Bhim Hospital in Bhairahawahospital. On arrival shortly after they found that the boy was already dead. The hospital records read ‘Brought Dead’, and also note that the body had an abrasion on left palm, bruising on his right sole and a two to three inch wound on his right arm, which have as yet been unexplained. His family fears that he was tortured.
An article written on November 18, 2008 by Bede Sheppard, Asia researcher for the Children’s Rights Division
(New York) – The Nepali government should urgently address the widespread torture and ill-treatment of children in police custody, Human Rights Watch said today in a statement marking Nepali Children’s Day on November 20. So far in 2008, Human Rights Watch has received credible claims of more than 200 cases of torture or abuse committed by members of the Nepali police against boys and girls, some as young as 13.
“The Nepali police have a duty to protect children and to prevent crime,” said Bede Sheppard, Asia researcher for Human Rights Watch’s Children’s Rights Division. “Instead, by torturing children in custody they are committing crimes against those they are supposed to be protecting.”
According to a large number of consistent and reliable reports, including first-person testimony from children, the most common methods of torture police use on children include: kicking; fist blows to the body; inserting metal nails under children’s toenails; and hitting the soles of feet, thighs, upper arms, backs of hands, and the back with bamboo sticks and plastic pipes.
Most children abused by the police are suspected of committing petty crimes, or are children living or working on the streets.
“Sometimes, the torture is inflicted to extract confessions from the children,” Sheppard said. “While at other times it appears to be carried out purely for the entertainment of the official.”
Torture is prohibited under Nepal’s Constitution, but is not defined as a crime under the country’s civil code (Nepal’s criminal law is part of its civil code). The torture of children is, however, illegal under article 7 of the Children’s Act, though the maximum penalty is just one year’s imprisonment and a fine.
Human Rights Watch said that despite the widespread nature of abuses against children in police custody, no government official has ever been prosecuted for the torture of children under the Children’s Act.
“It’s unusual to find a country where torture has not at least been recognized as a crime in its basic criminal law,” Sheppard said. “Given the widespread and credible nature of the allegations of torture in police custody, and the fact that the Children’s Act allows the government to prosecute torturers of children, it is also surprising that not a single police officer has been prosecuted for this offense.”
Human Rights Watch also expressed concern about the conditions children face while in custody. Children are generally not separated from adults while in detention as required under international law, and thus face a greater risk of being assaulted by other prisoners. Children also lack access to adequate medical facilities and legal assistance, and some face long periods – sometimes many days – of arbitrary detention.
One first-person testimony obtained by Human Rights Watch came from a 15-year-old boy who was routinely abused over a period of four days by police officers from three different police stations in Sunsari District in January 2008. The boy, who was arrested on suspicion of being involved in a robbery, explained:
“As I denied their accusations, [two unidentified police personnel] started beating me with a green plastic pipe and a bamboo stick on my hands, legs, and all over my body. Then, they forced me to lie on the floor with my legs on the table and started beating me on my feet. While beating, they asked some questions such as ‘Who was involved in robbery?’ and ‘What are their names?’…. They tortured and interrogated me for about one hour.”
The next day, the same boy was transferred to a different police station, where he said he was again abused:
“Some five or six unidentified police personnel asked me the same questions as I had been asked the previous day. As soon as I stated that I was not involved in the robbery, they started beating me with a plastic pipe, a silver pipe, and a bamboo stick all over my body. They even punched and kicked me with their boots. After a while, they placed a pistol on my temple and threatened to shoot me dead in an encounter. Then, they forced me to admit my involvement in the robbery.... They forced me to lie on the floor and one police man put his legs with boots on my chest and another sat on my head and the next police officer started beating me on my feet, legs, and all over my body with sticks. Then, they forced me to jump up and down on the floor for seven to ten minutes and again started beating me. I was beaten and interrogated simultaneously [over a two-hour period].”
Forcing victims to jump up and down is a tactic often used in Nepal to get blood circulating with the intention of lessening the physical evidence of torture.
Human Rights Watch urged the Nepali government to mark Children’s Day by making a clear statement that police torture is absolutely prohibited, and that any police officer involved should be prosecuted to the full extent of the law.
“If the government takes children’s rights seriously, then it should use Children’s Day to condemn police torture of children and bring the perpetrators to justice,” Sheppard said. “Nepal’s government should commit that by next year’s Children’s Day; torture will be a criminal offence, punishable with a proportionate penalty.”




Conclusion:

Juvenile justice system has not long history in our country. Children are always having/ facing conflict with law. So we need to develop a more and better law and policies for children not only in the constitution but also there should be proper implementation of it.

Juveline justice is one of the priority working area in nepal. Children are the vulnerable group of the society so the government should think about their protection and care. Government along with other organizations should conduct a training and orintation program throughout the country which will helps the people who are working in this field to understand the importance of juvenile justice.

As we have discussed above there is only a correctional home in Kathmandu so we need to establish a more correctional home in every district of the country to keep the children away from the environment of the police custody. There should be proper monitoring and evaluation of the different sub-sytems of the juvenile justice.

The government should prioritize the cases of juvenile so that we can draft a better juvenile justice policies (still we don’t have juvenile justice policiesin Nepal) in near future.






References:

http://www.unicef.org/infobycountry/nepal_nepal_statistics.html#6

htte://www.uslegal.com/juvenilejustice

Nepal Demographic and Health Survey Report, 2006

Poudel.A, Protection of Rights of Children in Conflict with law, 2010.

www.ahrchk.net/ua/mainfile.../3512/ (for case study)