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Artificial Intellligence
Artificial Intellligence
Abstract
In this article, the author tends to discuss evolution, rationale of the
juvenile justice systems. Moreover, the article attempts to articulate
international standard developed in the subject. Minimum age of criminal
responsibility, conditions for arrest and detention, juvenile courts and
trial procedures, specialized institutions for juvenile justice, diversion
and alternative sentencing, re-integration and rehabilitation policy are
the sectional themes that author discusses in the article. Further the
article tends to bring Nepali scenario fore and discusses Nepali laws,
policy, practice along with research finding back up. Finaly the article
concludes with its findings and provides for the recommendations.
United Nations Children's Fund, Regional Office for South Asia 2006).
5 ABA, THE HISTORY OF JUVENILE JUSTICE 4 [electronic version 2007]. http://www.
abanet .org/published/ features/DYJpart1.pdf (accessed 20 March 2008).
6 WEIJERS I, The Double Paradox of Juvenile Justice, EUR. JOURNAL OF CRIMINAL
POLICY AND RESEARCH 7, 329-351, 1999
7 A Latin term that means the state as parents.
8 OJJDP, JUVENILE JUSTICE A CENTURY OF CHANGE 2 (US Department of Justice, Office of Justice Programs,
9 MALBY, S., Juvenile Justice and the United Nations Survey on Crime Trends and Criminal Justice
Systems, IN K. AROMAA et. al. (eds) CRIME AND CRIMINAL JUSICE SUSTEM IN EUROPE AND
NORTH AMERICA 118-119 (Helsinki: European Institute for Crime Prevention and Control 2008).
140 NJA Law Journal - 2013
The juvenile justice system and the criminal justice system differ in many ways
but also have some common ground. Juvenile justice, as opposed to criminal
justice, recognizes children who come into conflict with the law as victims. It
takes into account the fact that children lack the maturity of adults (morally and
cognitively, physically and emotionally). It recognizes that most of the children
who come into conflict with the law are victims of neglect, exploitation, and social
and economic hardship. These children need special care, guidance, protection,
education, training and the opportunity of rehabilitation and reintegration. 11
Not only the US and Europe, but other parts of the world also practiced
alternatives to the formal mechanisms for dealing with cases of children. For
example, in Asia, the Government of Laos in 1997 formulated in a national policy
that every village should have a Village Mediation Unit. According to this policy,
the cases of children in conflict with the law are heard at village level by a
Juvenile Mediation Unit. The policy has prescribed many diversion measures,
applicable at various stages during the process of handling children’s case such
as cautions, mediation programs, victim-offender dialogue, family group
conferences (FGCs) and pre-trial community service. 12
New Zealand promulgated the Children, Young Persons and Their Families Act in 1989
(CYPF Act 1989) which introduced an innovative system for responding to the child in
conflict with the law. The system emphasizes diversion from courts and custody, and, while
holding children accountable, facilitates the construction of responses that aim to provide
for the rehabilitation and reintegration of them, support for their families, and that take into
account the needs of victims.13 The provisions of FGCs are
10 ABA, Supra note 5, p. 12.
11 UNICEF & AIHRC, JUSTICE FOR CHILDREN: THE SITUATION OF CHILDREN IN CONFLICT WITH
THE LAW IN AFGHANISTAN 4 (Afghanistan Independent Human Rights Commission and United
Nations Children's Fund 2007). http://www.unicef. de / fileadmin/content media/presse/Afghanistan
JuvenileJustice /Juvenile _DetentionStudyengl.pdf (accessed 14 June 2008).
12 SC UK, JUVENILE JUSTICE: MODERN CONCEPTS OF WORKING WITH CHILDREN IN CONFLICT WITH THE LAW
55-56 (Save the Children UK 2004. http://www.crin. org /docs/ savejj _modern_concepts.pdf ) (accessed 12 March 2008).
13 MSD, YOUTH JUSTICE IN NEW ZEALAND: OVERVIEW OF PRINCIPLES AND
PROCESS 1 (Ministry of Social Development New Zealand 2007).
Analysis of Juvenile Justice System.........................................................................141
the most important aspect of New Zealand’s juvenile justice system. The CYPF Act,
1989 section 260 provides that FGCs are to make such decisions, recommendations
and plans as are thought to be “necessary or desirable in relation to the child or
young person in respect of whom the conference was convened.”
In recent years, the issue of children in conflict with the law has become an increasing
concern for South Asian countries and reform initiatives are going on in many
countries. All the countries in the region have some differentiated procedures for
children’s case but no country in the region has fully functioning comprehensive and
separate juvenile justice system.14 In the South Asian region, India promulgated the
Juvenile Justice (Care and Protection of Children) Act in 2000. The Act deals with
children in conflict with the law and children in need of protection. The Act aims to
create a separate system of justice for children at every stage, distinct from adult
criminal justice system. Bhutan does not have separate juvenile justice legislation, nor
a separate juvenile justice system. In the late 1990s a bill was drafted in Bhutan in
order to introduce systematic and specialized legal framework for juvenile justice
system.15 The Government of Bangladesh promulgated the Children Act 1974 to deal
with the justice system both for children in conflict with the law and children in need of
protection. In spite of promulgation of the Act almost 30 years back, Bangladesh has
yet to establish a comprehensive and separate juvenile justice system.16
International instruments can be divided into ‘hard’ law and ‘soft’ law for practical
convenience. Treaties are hard law as they are binding on the states parties after they
have undergone the ratification process. Declarations, resolutions, guidelines and the
likes are usually soft law. These instruments have not undergone the process of
ratification and they are not strictly binding on states. Although soft law does not
create any direct obligation on states, it does carry the legitimacy of the international
community. It is therefore highly useful and important for the development of juvenile
justice jurisprudence at the national and international
level.17 The CRC, ICCPR and CAT are hard laws on juvenile justice and
declarations and resolutions such as the Beijing Rules, the Riyadh
Guidelines and the JDLs are soft laws. In this article both the ‘hard’ and ‘soft’
laws have been taken as relevant international instruments of juvenile justice.
The international instruments on juvenile justice can also be divided into ‘juvenile
justice specific’ and ‘general human rights’ instruments. As per this division, the
CRC, the Beijing Rules, the Riyadh Guidelines and the JDLs are juvenile justice
specific instruments and the ICCPR and CAT are general human rights
instruments. For any analysis of juvenile justice standards both the specific
juvenile justice instruments and general human rights instruments are relevant.
The Juvenile justice system is not and should not be a part of the regular adult
criminal justice system. Nevertheless there may be some similarities in procedures
and due process guarantees. Measures for special care, special protection and
special procedures are required to protect and promote the best interests of the child
in cases of children. Binding and non–binding, juvenile justice specific and general
human rights international instruments provide the framework for the proper
administration of juvenile justice and mechanisms for enforcing them.
The CRC requires state parties to develop and implement a comprehensive juvenile
justice policy. The Committee on the Rights of the Child has stated that “the
comprehensive approach should not be limited to the implementation of specific
provisions contained in Article 37 and 40 of the CRC, but should also take into
account the general principles enshrined in article 2, 3, 6 and 12 and all other relevant
articles of the CRC”.18 Rule 1(4) of the Beijing Rules states that “juvenile justice shall
be conceived as an integral part of the national development process of each country
within a comprehensive frame work of social justice for all juveniles.’ Juvenile justice
systems should also be developed systematically and in a coordinated way so as “to
improve and sustain the competence of personnel involved in the system, including
their methods, approaches and attitudes” (The Beijing Rules, Rule 1(6)). Following
are the important aspects of establishing and proper functioning of comprehensive
and separate juvenile justice systems, seen from a CRBA and directed at serving the
best interests of the child.
a specific minimum age in this regard. Rule 2(2a) of the Beijing Rules defines a
juvenile as “a child or young person who, under the respective legal systems,
may be dealt with for an offence in a manner which is different from an adult”.
Rule 4(1) recommends that states parties not set a too low MACR and that the
“emotional, mental and intellectual maturity” of the juveniles should be
considered when determining the age of criminal responsibility. The CRC and the
Beijing Rules do not set a MACR directly, but they lay some basis for it. In
accordance with the basis set by the CRC and the Beijing rules the Committee
on the Rights of the Child has set 12 years as the MARC and stated that: 19
“... The states should not set the MACR below the age of 12 and the
Committee encourages to increase their lower MACR to the age of
12 years as the absolute minimum age and to continue to increase it
to a higher level…. that MACR below the age of 12 years is
considered by the Committee not to be internationally acceptable’’.
Article 40 of the CRC asserts that children in conflict with the law
should be treated “in a manner consistent with the child’s sense of
dignity and worth… and which takes into account the child’s age and
the desirability of promoting the child’s reintegration.”
The JDL has also laid down important guiding principles regarding arrest and
detention of the child in conflict with the law such as that deprivation of liberty should
be a last resort and for a minimum period and that it should be limited to exceptional
cases (Rules 1, 2). Juveniles should only be deprived of their liberty in
19 Id, p. 11.
144 NJA Law Journal - 2013
Beijing Rule 10(1) provides that when a juvenile is arrested or detained, his
or her parents must be notified immediately, or within the shortest possible
period of time. Any contacts between law enforcement agencies and a
juvenile must be managed in such a way as to respect the legal status of the
juvenile to promote his or her well being and avoid harm to the juvenile (Rule
10(3), the Beijing Rules). Especially, the police must not use harsh, abusive
or obscene language or physical violence in their dealings with children (ru1e
12, the Beijing Rules). Rule 13 of the Beijing Rules provides that, whenever
possible, alternatives to the deprivation of liberty such as close supervision,
placement with a family or in an educational or home setting should be used.
Rule 26(4) of the Beijing Rules provides that juveniles in the institutions
should be kept separate from adults and that young female offenders
should be provided with special attention as per their personnel needs
and problems. They should by no means receive less care, protection,
assistance, treatment and training than young male offenders.
The ICCPR contains provisions which stipulate that juvenile offenders shall be
segregated from adults and be accorded treatment appropriate to their age and legal
status (article 10). Its Article 14 states that procedures against juvenile persons
should take account of the age and the desirability of promoting rehabilitation. In
addition, the CAT states that States should take effective legislative, administrative,
judicial or other measures to prevent acts of torture and that no one shall be
subjected to torture or to inhuman or degrading treatment (article 2).
20 UNICEF, MANUAL FOR THE MEASUREMENT OF JUVENILE JSTICE INDICATORS 7-8 (The United Nations Children’s
Fund, United Nations Office on Drugs and Crime, New York, 2006).
Analysis of Juvenile Justice System.........................................................................145
rights against retroactive juvenile justice, the presumption of innocence, the right
to be heard, the right to effective participation in the proceedings, the right not to
get the death penalty, prompt and direct information of the charges, the right to
get legal and other necessary assistance, decisions without delay and with
involvement of parents, freedom from compulsory self incrimination, the right to
presence and examination of witnesses, the right to appeal, the right to get free
assistance of an interpreter, and the right to privacy.
“To promote measures for dealing with children alleged as, accused
of, or recognized as having infringed the penal law without resorting
to judicial proceedings, whenever appropriate and desirable.”
Beijing Rule 11(1) provides further guidance on diversion stating that “consideration
shall be given, wherever appropriate, to dealing with juvenile offenders without
resorting to formal trial by the competent authority”. Rule 11(2) further provides
Beijing Rule 24 emphasizes the need of providing juveniles, at all stages of the
proceedings, with necessary assistance such as lodging, educational or
vocational training, employment or any other assistance, helpful and practical, in
order to facilitate the rehabilitative process. The objectives of the training and
treatment of juveniles in the institutions should be to provide care, protection,
education and vocational skills, with a view to assisting them to assume socially
constructive and productive roles in society. The juveniles in the institution should
be provided with care, protection and all necessary assistance - social,
educational, vocational, psychological medical and physical that they may require
because of their age, sex, and personality and in the interest of their wholesome
development. In order to properly reintegrate juveniles in their society, efforts
shall be made to provide semi-institutional arrangements, such as half-way
houses, educational homes, day-time training centers and other such appropriate
arrangements (Beijing Rules 26(1) and (3), 29(1)).
Prior to 1951, Nepal’s legal system was close to an ‘inquisitorial system’ which
meant that the court exercised the role of both an investigator and an adjudicator.
The courts had power to discover evidence and to conduct judicial inquiry before
passing the sentence. After the popular movement in 1951, an independent
judiciary was established and an adversarial system of justice was introduced.
The Constitution of the Kingdom of Nepal 1969 accepted the ‘adversarial
approach’ meaning that the investigating power of the court was taken away.
Only the power of adjudication was vested with the judiciary. The promulgation of
the State Cases Act 1961 was a significant development towards practicing the
adversarial justice system in Nepal. This Act separated the investigation and
prosecution from the adjudicating power vested in the judiciary. The courts
remained as independent case-hearing authorities and investigation and
prosecution power was vested in the Police and Government Attorney.
26 BISHAL KHANAL, REGENERATION OF NEPALESE LAW 1 (Kathmandu: Bhrikuti Academic Publication 2000).
27 JAGADISH CHANDRA REGMI, NEPALKO BAIDHANIK PARAMPARA I, 2 (Kathmandu, Araniko Publishers 1979).
148 NJA Law Journal - 2013
Article 100 of the Interim Constitution provides all the powers relating to justice to the
courts and the courts use this power as per the Constitution, laws and recognized
principles of justice. Article 101 of the Constitution established three tiers of courts
namely the Supreme Court, the Appellate Court and the District Courts in the country.
The Children’s Act 1992 is a special Act promulgated with the declared objective of
the well-being of children. Before its enactment, there was no separate law dealing
with children in conflict with the law. The chapter on punishment (Danda Sajaya ko
Mahal) of the National Code (Muluki Ain) only had a provision to lessen the
punishment for a child under the age of 16. But, the punishment and court
proceedings were similar to those of adult offenders (PPR Nepal 2007: 24).28
For the first time in Nepal, the Interim Constitution of Nepal 2007
recognized the rights of the child as fundamental rights. Article 22 of
the Interim Constitution provides:
the juvenile justice system. The Juvenile Justice Procedures Rules 2007
provides detailed procedures for the handling of the cases of the child. The
Children’s Act provides for constitution of a Central ‘Children Welfare Board’
(CCWB) (Section 32). The CCWB has the overall responsibility to ensure
realization of the rights of the children of Nepal by the state collaborating with
civil society as well as national and international development organizations.
It works towards protection of children’s rights as per the CRC standard. The
CCWB has overall responsibility to look after children’s issues29.
The CCWB has 21 members in its Board. The Chair of the Board is Minister of
Women, Children and Social Welfare. Other members of the Board are Secretaries of
various government ministries and representatives from the Teacher’s Union, NGOs,
Pediatrician, Teachers, Child Rights Activists and other reputed personalities (section
32, the Children’s Act). In 2007 government of Nepal promulgated Juvenile Justice
Procedure Rules to provide special court procedures for the cases of children in
conflict with the law. The Rules established a Juvenile Justice Coordination
Committee (JJCC) under the chairmanship of a Supreme Court Judge of Nepal in
order to coordinate with the stakeholders of Juvenile Justice in national level.
The Nepali Judiciary has played a significant role for the protection of the rights of
children in conflict with the law. The Supreme Court of Nepal issued an order of
habeas corpus and directed the government authorities to keep the petitioner (a 14
year old child) in the juvenile reform home instead of sending him in prison for
remand purposes (Bablu Godia vs. Banke District Court , Writ no. 3390 of 2000). The
Supreme Court, citing ICCPR article 10(3) and CRC article 37(a), issued an order in
the name of prison authorities not to keep a minor in custody or prison together with
adult prisoners and to shift the petitioner (a convicted child) who was kept in a prison
with adults to the Juvenile Reform Home (Keshav Khadka vs. Dhanakuta District
Court, Writ no. 3685 of 2000). In another case, the SC directed the prison authority to
release the petitioner (a child) as she was not sent to a reform home. (Sarita Tamang
vs. Illam District Court, Writ no. 21 of 2001). In 2005 the SC issued a Directive Order
to the Nepali Government to establish a juvenile bench in each of the 75 districts to
hear the cases of children (Santosh Kumar Mahato vs. the Cabinet, writ no 2004).30
The above mentioned decisions shows that the court had a positive attitude towards
the reform of the juvenile justice system in Nepal.
In the following section, the Nepali juvenile justice system – consisting of law,
policy and practices – is assessed against the key requirements of the CRC,
other UN guidelines and the principle of the best interests of the child.
The Children’s Act provides that the MACR in Nepal is 10 years (section 11). Section
11(1) of the Children’s Act provides that if a child who is below the age of 10 years
commits an offence (s)he shall not be liable for any punishment. If a child above 10
years but below 14 years commits an offence which is punishable with a fine (s)he
shall be admonished and convinced. If the offence according to law is punishable with
an imprisonment, the child between 10 to 14 years shall be punished with no longer
than 6 months imprisonment, depending on the offence committed (Section 11(2)).
The Children’s Act further provides that if a child above 14 years and below 16 years
commits a crime (s)he shall be punished with half of the punishment that an offender
of the age of majority gets for the same offence (Section 11(3)).
The UN Committee on the Rights of the Child has repeatedly expressed concern
over the MACR set by Nepal. It suggests increasing the MACR standard to
comply with the international standards (CRC 1996: para.38, CRC 2005: 24).
Even after the repeated concerns of the Committee, the Government of Nepal,
so far, has not taken any step to raise the MACR as per international standards.
The above discussion shows that due to weaknesses in defining ‘child’ and too low a
MACR, many children between the ages of 16 to 18 are not able to enjoy the rights,
privileges and protection of national and international child rights instruments
including the CRC. While setting of MACR of 10 years is not illegal per se, it goes
against the spirit of the CRC, the views expressed by the Committee on the Rights of
the Child (CRC 2007) and the principle of the best interests of the child.
31 Sarjamin is a Nepali term which denotes the process of finding facts and evidence of a case from where the
crime was committed. Generally, the police goes to the place of crime scene once they were reported about the
crime and ask people who were at or around the place of crime scene for information about the crime.
32 Yubraj Sangraula,, THE ROLES OPPORTUNITY AND CHALLENGES OF THE JUVENILE JUSTICE SYSTEM
IN NEPAL: NEED OF DICERSION FROM THE CRIMINAL JUSTICE SYSTEM 4,5 [electronic version 2004].
http://www.ksl.edu. np/legal titlecontect .asp?id=35&thread=Reading %.20Resources. (accessed 10 July 2008)
Analysis of Juvenile Justice System.........................................................................153
This shows that there is a big gap between Nepal’s international obligations
and commitments regarding juvenile justice and the national policy, law and
their implementation in the arrest and detention phase in Nepal.
Determining age of children is crucial but the complications are there in many
cases in Nepal. Since the age determines whether the suspect is a child or an
adult, which in turn determines the criminal responsibility of the suspect and the
nature of procedures to be followed, the suspect may try to forge or decrease his
or her actual age in order to get privileges and protection as a child. On the other
hand, the other side will often intend to establish the age of the suspect as highly
as possible to follow the normal process in the proceedings. 36
Section 3(2) of Children’s Act 1992 states that the age of the suspect shall be
determined by a registered medical doctor. The 2007 Rules provides that the age
of the child shall be determined through the date of birth established according to
the birth certificate issued at a hospital (Rule 15(a)). In case the certificate is not
available, the date of birth may be established according to the certificate issued
by the office of the local registrar. In case such a certificate is also not available,
the date of birth may be established by the character certificate issued by the
school of attendance. In case such certificate is not available either, the age shall
be certified by a government hospital (Rule 15(b, c and d)).The Committee on the
Rights of Child has repeatedly raised its concern about the “lack of a proper
official system of age verification in place” in Nepal.37
The Public Offence and Punishment Act, 1970 provides for the District Administration
Office (DAO), a quasi-judicial body, with the power to conduct investigation of a case,
try it and impose sanctions including imprisonment in relation to the offence under the
Act. Basically, DAO is an administrative body and it looks after the administration and
maintenance of peace and security in the district. A baseline survey conducted by
Kathmandu School of Law revealed that during five years period between 1998 and
2002, 1522 cases involving children were recorded in Kathmandu. Out of these 1522
cases, 1276 cases were tried by the DAO and the remaining ones went to court. 38
The DAO is basically a government administrative body. It does not have formal
justice delivery settings. Therefore, the decisions are taken without following the
principles, due process of law and the recognised principles of justice. 39 The
Committee on the Rights of Child has also raised this issue and stated that it ‘is
alarmed that children are often brought to trial without any proper investigation’ and
that a large proportion of juvenile cases are dealt with by the District Administration
Offices which are quasi-judicial body.40 Recently, the Supreme of Court of Nepal has
directed Ministry of Home Affairs, Nepal Government to send a formal letter
to the CDO to send all the juvenile cases (not including adult) in proceeding to
the concerned District Court for the remaining proceedings and the Court has
spelt out that the CDO does not have authority to hear the cases of juveniles 41.
Section 55(2) of the Children’s Act provides that the Juvenile Court shall not have
jurisdiction to hear and decide the case of a child in conflict with the law when the
child has been involved in the case along with a person who has attained the age
of majority. It seems, this provision curtails the rights of a child enshrined in
international and national instruments including the CRC and the Children’s Act
which provide special care, protection and privileges such as, the children in
conflict with the law to be heard with special protection in Juvenile Courts. Even if
a minor has allegedly committed a crime with adults (s)he is still a child with
equal rights as other children and should be treated as a child. Just an allegation
or even conviction with an adult cannot be a valid reason for treating him/her as
an adult. Thus this provision is discriminatory against the minor and against the
principle of the best interests of the child.
Section 55(3) of the Children’s Act provides that the concerned district court shall
have powers to hear and decide the case of a child in conflict with the law until a
juvenile court is established. Section 55(4) of the Act provides that there shall be a
children’s bench in each District Court for the purpose of section 55(3) of the Act.
Section 55(5) of the Children’s Act provides that while constituting the Children’s
bench, a Judge, a social worker, a child specialist or a child psychologist should be
included in order to try cases of children in conflict with the law. As per this provision,
the government of Nepal has established 26 Juvenile Benches in 26 District Courts.
41 Saroj Rai vs Government of Nepal, Writ No. WH-0025 of the yar year 2066.
42 KSL & CeLRRD, BASELINE STUDY ON JUVENILE JUSTICE SYSTEM IN NEPAL 81 (Kathmandu 2010).
158 NJA Law Journal - 2013
Some NGOs such as CVICT Nepal, Pro Public, CeLRRD, and IGD are conducting
Likewise, Section 50 (2) of the Children’s Act provides that if the judge thinks that
it is not appropriate to send a child to prison after conviction, considering the
child’s physical condition, age, circumstances under which the offence was
committed and times of commission of offences by the child, the judge may
suspend the sentence for the time being, or prescribe keeping the child in a Child
Rehabilitation Home or in the guardianship of a person or organization. If the
child is again convicted for the same or another offence the Judge may order to
imprison the child adding the earlier sentence of imprisonment.
There are some examples of cases where judges have invoked the provision of
suspending the sentence. In HMG vs. Mahesh Wagle, Nawalparashi District
Court, a three month sentence was suspended. In HMG vs. Govinda Prasad
Pangeni, the Nawalparasi District Court suspended three month imprisonment in
a murder case. In HMG vs. Shiva Lal Choudhary, Kailali District Court suspended
three year imprisonment. However, none of these cases was it clear from the
judgments which facts were considered for suspending the sentences. 47
In a survey it was found that all the 22 judges who participated in the survey
did not see any possibility of diversion in the existing situation, mainly due to
the lack of legal provisions and knowledge. And, the majority of the police
officers in the survey were not in favor of diversion. 48
As per the above discussion it is clear that there is no legal provision for the diversion
of cases of children but most of the stakeholders think that diversionary programs
should be introduced in the Nepali juvenile justice system. We can see that Nepal, as
a state party to the CRC, has to take initiatives to fulfill the obligation under
Article 40(3) which requires the state party to establish “appropriate and desirable
measures for dealing with such children without resorting to judicial proceedings...”
Presently, there are only two Juvenile Reform homes in the country
which are located in Kathmandu valley and in Pokhara.
In Nepal, there is no governmental body established for the rehabilitation and
reintegration of children who have come in conflict with the law. Some NGOs, such as
CWIN and CWISH, which are mainly working for the promotion and protection of child
rights in general, have some programs for the rehabilitation and reintegration of these
children. For example, for more than 13 years CWIN has been running child
development and socialization and rehabilitation programs and it has operated child
socialization centers in Kathmandu and Pokhara.
As a state party to the CRC Nepal is under the obligation of protecting, fulfilling
and respecting the rights of the child. This extends to the overarching principle of
the best interests of the child in every action, including juvenile justice. As per
Section 9(2) of the Nepal Treaty Act, the CRC overrides contradicting national
law. Neither the Children’s Act nor the Juvenile Justice Procedure Rules 2007
use the term ''the best interests of the child” but in essence we can find
provisions which serve the purpose of the best interests of the child including the
provisions of the Children’s Act on torture and cruel treatment (Section 7), up to
the 16 years of age lessened criminal responsibility (Section 11), ban on rigorous
punishment (Section 15), compulsory lawyer’s representation (Section 19),
establishment of juvenile reform homes (Section 42), closed hearing of children’s
cases (Section 49), pending punishment and proceedings of the case can be
done without detaining a child on the discretion of a judge (Section 50), and on
special courts or benches for hearing children’s case (Section 55).
Likewise, the Juvenile Justice Procedure Rules 2007 provide special provisions
for the handling of cases of juveniles to serve the best interests of the child
(though this is not literally expressed) such as establishment of juvenile cells in
the Police station (Rule 3), special procedures for investigation of children’s case
(Rule 4), special proceedings for case hearing (Rule 12), and that children’s
cases should be decided within 120 days of filing (Rule 16). But in the practice it
is found that only 12.5 % cases are being decided on this prescribed timeframe
remaining 87.5% cases are being decided after the prescribed time frame. The
study revealed that 5% cases are being decided after 2 years. 51
These are the legal provisions only. The question arises whether these provisions are
adequate to serve the best interests of the child? The importance of the laws and
policies lies in their implementation and the question arises whether these legal
provisions are implemented properly. As we have discussed earlier, there are many
gaps in the Nepali juvenile justice laws and policies. These include: too low a MACR,
as currently a child is defined as a minor below the age of 16 rather than not below
the age of 18 as the spirit of the CRC would require; lack of a special juvenile justice
system in the country but children’s cases still considered as part of the general
criminal justice system; lack of a comprehensive juvenile justice policy in the country;
lack of a diversionary system and alternative sentencing etc. The Government of
Nepal has clearly not provided adequate attention to these issues.
As regards implementation of national law and policies there are also many
weaknesses. For example, even after many years after the promulgation of the
Children’s Act there is not any Juvenile Court, most of the children are detained with
adults, often handcuffed, tortured or abused during or after their arrest. 52 There is no
Juvenile Police; actors of the juvenile justice system are either not or inadequately
trained. There are no adequate Juvenile Reform Homes and most of the children in
conflict with the law are not rehabilitated and reintegrated in the society.
From the above discussion we can see that the gaps between international
standards and the Nepali system are big. The gaps between Nepali law and
policy and their implementation are also big. If we compare the international
standards with the current practice in Nepal, then the gap becomes ‘very big’. In
conclusion, the Government of Nepal has taken some steps in promulgating law
and rules to make the juvenile justice system serve the best interests of the child,
but it needs to do much more in order to achieve proper implementation of these
laws and rules. More steps have to be taken to make the Nepali juvenile justice
system serve the best interests of the child.
In Nepal, the juvenile justice system was long considered as part of the criminal
justice system. Reforms of the juvenile justice system started after the restoration of
multiparty democracy in 1990. The concept of a separate juvenile justice system
52 Supra note 28, pp. 38,68.
Analysis of Juvenile Justice System.........................................................................163
was further developed by the promulgation of the Children’s Act 1992. Likewise, the
promulgation of the Juvenile Justice Procedures Rules 2007 further strengthened the
juvenile justice system in Nepal. Even after these developments the juvenile justice
system in Nepal is not fully implemented, a separate and distinct juvenile justice
system which embraces the direction provided by CRC and ensures that children in
conflict with the law are treated substantially different than adults at all stages of the
proceeding and thus ensures best interests of the child.53
Currently, most of the children who come into conflict with law in Nepal end up
deprived of their liberty either in police lock-ups, prisons, or Juvenile Reform
Homes since there is no provision for diversion and alternative sentences. At all
stages of handling cases of children, the formal justice mechanism is used. But
the actor of the formal juvenile mechanisms (Police, Judges, Government
Attorneys, defense Lawyer) are not trained at all or inadequately trained.
Therefore, the handling of cases of children is often not as per their best interests
and not as per the letter and spirit of the international binding and non-binding
instruments to which Nepal has shown its commitment. The Nepali juvenile
justice system is more punitive and retributive than restorative, which is much in
contrast with the purpose of a juvenile justice system. 54 The Nepali juvenile
justice system is suffering from many gaps such as, the non-existence of a
national action plan55 for juvenile justice, diversionary and alternative sentencing
provisions, delinquency prevention and reintegration program of the child.
Likewise, the MACR is too low, the definition of children is not as per the spirit of
the CRC and lack of diversion and alternative sentencings are some other gaps.
In the last 20 years Nepal has made good efforts to establish a separate juvenile
justice system. These efforts include ratification of the CRC, promulgation of the
Children’s Act containing provisions regarding juvenile justice, promulgation of
the Juvenile Justice Procedures Rule 2007, establishment of Juvenile Justice
Coordination Committee, establishment of two Juvenile Reform Homes
(Bhaktapur and Pokhara)56 and infrastructures have been built Juvenile Benches
in 40 districts. Awareness about the need for a separate, well implemented
juvenile justice system has been raised among the stakeholders. On the other
hand, we can see the lack of strong political will to establish a comprehensive
and separate juvenile justice system as per Nepal’s international commitment.
There is a lack of specialized agencies for handling cases of children in conflict with
the law. No Juvenile Court has been established in the country as required by Section
55 of the Children’s Act. There is only one Juvenile Reform Home in Kathmandu to
cover the whole of Nepal. No separate Police or Government Attorney Units for the
cases of children in conflict with the law have been established. The Nepali juvenile
justice system is, at present, not fully separated from the adult criminal justice system
and most of the proceedings are identical. Misbehavior, abuse, torture, cruel and
inhuman behavior is widespread and children are often handcuffed and detained with
adults. Majority of the children in conflict with the law feel that the attitude of judges is
not friendly towards them. Most of the children who go through the process of juvenile
justice are not able to become a ‘normal’ child again and are not rehabilitated in their
society. There are some provisions for the protection of the best interests of the child,
the implementation of those provisions are very weak.
In conclusion, we can draw that in spite of some good efforts taken by the
government of Nepal, the Nepali juvenile justice system needs significant
reforms in order to comply with the CRC framework and other international
human rights instruments. The reforms are necessary to make the Nepali
juvenile justice system in compliance with the international standards and to
serve the best interests of the child in conflict with the law.
Recommendations
As per the above discussion following are the recommendations to strengthen the
Nepali juvenile justice system:
Reform in legislation and policy:
• Define child as per the letter and spirit of the CRC, i.e. set
the age limit at 18 years,
• Reset the MACR which should not be less than 12 years,
• Immediately formulate a child rights-based comprehensive juvenile
justice policy and plan to ensure the best interests of the child,