Signs of positive changes in Juvenile Justice System | Daily News


Universal Children's Day

Signs of positive changes in Juvenile Justice System

Children differ from adults with the variance mostly concerning physical characteristics, of course, and their levels of understanding and maturity.

In recent times, a steep increase of children in conflict with the law could be observed in Sri Lanka. Children have been in conflict with the criminal justice system, if they have committed or are suspected to have committed acts contrary to the law of the land.

Children in conflict with the law despite their age are nevertheless legally characterized as offenders. A child or a young person who is accused or found to have committed an offence is referred to as a juvenile offender. The Beijing Rules considers a juvenile to be a child or a young person under the respective legal system who may be dealt with differently from an adult. Such a child or young person will have proceedings instituted before him or her, to be heard before a juvenile justice system.

Juvenile justice, as a gamut, consists of legislature, norms and standard procedures, mechanisms and provisions, institutions and bodies explicitly applicable to juvenile offenders. Juvenile justice focuses on making juvenile offenders responsible and accountable for their crimes.

The objective of a juvenile justice system is a healthy development of a child and a conditional decision will be reached depending on an individual’s ability to understand, and the maturity of the child or the young person — as the formal criminal justice system can be intimidating to children.

The Constitution recognizes special provisions for children with the provision for the administration of juvenile justice through Article 12(4) which states inter alia, that nothing in this Article shall prevent special provision being made by law, subordinate legislation or executive action for the advancement of women, children or disabled persons. This position can also be inferred from the Constitution in its Directive Principles of State Policy and Fundamental Duties. Article 27(2)(g) states that the State pledges to establish in Sri Lanka a Democratic Socialist Society, the objectives which include raising moral and cultural standards of People and ensuring the full development of the human personality.

Sri Lanka has had recourse and reference to international guidelines and adopted the concept of juvenile justice in the country. A prominent piece of National legislation which governs this aspect is Children and Young Persons Ordinance No.48 of 1939. This Ordinance makes provision for the establishment of juvenile courts, the supervision of juvenile offenders, and the protection of children and young persons and other connected matters. A juvenile justice system is often given life through the agency of a juvenile court. Section 2 of the Children and Young Persons Ordinance defines a juvenile court as a court of summary jurisdiction sitting for the purpose of hearing any charge against a child or a young person, or for the purpose of exercising any other jurisdiction conferred on a juvenile court by or under this ordinance, or any other written law.

It requires that although this system of justice is structured to hear charges against children and young persons, that the alleged child is above the minimum age of responsibility. Children under the minimum age of responsibility cannot be accused of an offence or be subjected to any legal proceeding concerning such infarctions.

The Penal Code of Sri Lanka defines the minimum age of responsibility in the country. It is 12 years as outlined in Section 75 of the Penal Code with the provision ‘nothing is an offence which is done by a child under 12 years of age’. In addition to defining a minimum age of responsibility, Section 76 further stipulates that nothing is an offence that is done by a child above 12 years of age and below 14 years of age who has not attained sufficient maturity and understanding to judge the nature and consequences of his conduct on that occasion.

International standards which revolve around juvenile justice systems assisted Sri Lanka in establishing a superior juvenile justice system. International standards take the shape of treaties and declarations incorporated into the National legislature. The International Covenant on Civil and Political Rights, United Nations Minimum Rules of Juvenile Justice, and the United Nations Guidelines for the Prevention of Juvenile Delinquency are some such international treaties and declarations. The International Covenant on Civil and Political Rights is composed of many safeguards which can be applicable to all persons brought to trail and detained. This ensures that the death penalty is prohibited for children under 18 years of age. The Covenant also provides in Article 6(5) that ‘in the case of juvenile persons the court procedure will be such as take into account his age and desirability and promoting rehabilitation’.

The Convention on the Rights of the Child is a treaty which sets out the civil, political, economic, social, health and cultural rights of children. Article 37 and Article 40 of the Convention elaborates on the administrative aspects concerning juvenile offenders. In terms of Article 37(b) ‘no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of the child shall be in conformity with the law and shall be used only as a measure to its last resort and for the shortest period of time’.

Rights of all children who are alleged to have committed, or are accused of an offence or recognized as having infringed the penal law, are secured by Article 40 of the convention on the Rights of the Child. Such law documents on how children should be treated from the moment the allegation is made, throughout the investigative process, arrest, the proffering of a charge, pretrial period, trial and sentence. The Article expects the state parties to promote a distinctive system of juvenile justice with positive aims. The Article also provides a list of minimum standards for the conviction of juvenile offenders such as a minimum age of criminal responsibility, measures provided for children who may have infringed the penal law having no recourse to judicial proceedings, and provisions for a variety of dispositions and institutional care.

The United Nations Minimum Rules for the Administration of Juvenile Justice, commonly referred to as the Beijing Rules, expects states to establish legal protections to strengthen the wellbeing of children who are in conflict with the law. The instrument includes the aspects of children’s interaction with the legal system from the first contact with law enforcement up to adjudication and disposition, guiding the states to establish a juvenile justice system with legislature, policies and regulations that secures the rights of children. The juvenile justice system is expected to be flexible and discretionary, upholding the basic procedural safeguards of children. The instrument is among the first that details norms for the administration of juvenile justice along with the rights of the child and a developmental approach.

The United Nations Guidelines for the Prevention of Juvenile Delinquency, commonly referred to as Riyadh guidelines, details the standards applicable when a juvenile is confined to an institution or a faculty as a consequence of an order given by any juvenile, administrative or public authority. The rules include principles and outline specific circumstances where children can be deprived of their liberty, stressing on the notion that deprivation of liberty should be considered a last resort, and for the shortest period of time limited to exceptional instances.

These are among the few internationally accepted instruments which enunciate the detrimental aspects of deprivation of liberty to ensuring the human rights and the rights of the child upholding the dignity and welfare of juveniles held in custody.

These international instruments and local legislation have influenced Sri Lanka. The establishment of juvenile courts which was primarily located in Battaramulla and another later in Jaffna, affords a glimpse of steps taken by Sri Lanka for a juvenile justice system. A juvenile court is a special court established for children where charges shall be proffered through a comprehensive understanding of the maturity and the background of the child, unlike the standard judicial proceeding where the accused is convicted strictly on the basis of the rigorously interpreted law of the land.

Despite the establishment of the juvenile court, only partial success has been achieved in the development of the local juvenile justice system. This might be due to the misleading provisions which drive practitioners of the law to treat older juvenile offenders as adults, which is contrary to the intended objectives of juvenile justice.

A slight deviation between the local legislation governing juvenile justice and the International guidelines set out in treaties and declarations, is noticeable. The legislative interpretation of the Children and Young Persons Ordinance in Section 88 defines a child to be a person under 14 years of age and a young person to be an individual that has attained the age of 14 years but is under 16 years of age. The Convention on the Rights of the Child recognizes a person under 18 years of age as a child unless a particular country’s legal system defines the age of adulthood as less than this.

A person who has attained 16 years of age and who has not attained the age of 22 is defined as a youthful person in Section 16 of the Youthful Offenders Ordinance. The Youthful Offenders (Training Schools) Ordinance No.28 of 1939 is an ordinance which makes provision for the establishment of training schools for detention, training and reformation of youthful offenders intending to change the behaviour through education and training.

There is a concern about how offenders between the ages of 16 and 18 are treated. The Age of Majority Act recognizes a person attaining the full age of 18 as having attained the legal age of majority in terms of Section 2 of the Act. Therefore it is important to make sure that an offender who has not attained 18 years of age has the right to exercise their rights as a child within the respective detention, training and reformation centres. The common law indicates that judges have considered the consequences to such children before making judgement such as in Re John Mathew where the court held a young person should not be ordered to be imprisoned for any offence or sent to prison in default of payment or fine unless the court certifies that he is of unruly character and cannot be detained in a remand home or certified school, or he is so deprived of character that he is not a fit person to be detained. Although judges have considered aspects of levels of comprehension and maturity of young persons, there is an absence of a concrete law concerning such young persons.

Age is of fundamental importance within a juvenile justice system as one of the key reasons for the establishment of such a system which slightly deviates from a standard court and its proceedings, is the assumed incapability of juveniles to understand the nature and the consequence of the offence they have committed.

As documented in an article in the Daily News in 2019, according to the Department of the Prisoners Statistics, there have been 168 children under 16 years of age and 11,203 children between the ages of 16 and 22, directly admitted to prisons as un-convicted prisoners. Moreover, 1,933 young people between the ages of 16 and 22 were directly admitted to the prison system along with adults as convicted prisoners. Last week, the Cabinet addressed this issue by imposing a new age limit with offenders under 18 years of age to be tried as juvenile offenders. This can be observed as a progression in the law provided in the Children and Young Persons Ordinance which grants jurisdiction over children and young persons, where a child is interpreted to be a person under the 14 years of age — and a young person as a person who has attained 14 years of age, but is below 16 years of age.

The foundational principle of the criminal justice system as pertaining to adults revolves around the concept of retribution or punishment. This concept is not only disturbing juvenile offenders, but also there is a higher possibility of their record blighting their futures. Therefore, restorative justice is mostly what is imposed on juvenile offenders. The key principles of restorative justice are repairing the harm done and restoring the society, restitution of the victim, making sure that the offender understands and takes responsibility for their actions, and helping to change and improve the behaviour of the offender.

One approach taken by courts in Sri Lanka towards restorative justice is rehabilitation. The juvenile offenders will be rehabilitated in institutions such as remand homes, approved or certified schools administered by the Department of Probation, and the Department of Child Care Services.

A juvenile offender below 16 years of age will be sent to a remand home for a period not exceeding one month and an offender below 18 years of age where the prescribed punishment for the particular offence he has committed is the death sentence shall be detained at the pleasure of the President, and if the particular offence is another indictable offence, such a person shall be detained in a remand home at the pleasure of the minister.

Rehabilitation primarily concerns transforming convicted children and young persons into law-abiding and responsible citizens of the country. The male inmates in rehabilitation centres are given vocational training in various fields such as carpentry and mechanical work, while female inmates in such centres are trained in the fields of home science and handicraft.

Another means of rehabilitation is probation and supervision of juvenile offenders under the care of suitable persons. The court while considering the nature of the offence along with the psychology, background and understanding of the juvenile offender, will release the child on probation under the Probation of Offenders Ordinance No.42 of 1944. This ordinance is to amend the law relating to the release of offenders on probation, and for the supervision of such offenders — and provides for the establishment and administration of a probation service.

Signs of positive change in the Sri Lankan juvenile justice system can be seen in the recent past. As children are the future custodians of the country, it is important that they are set on the correct path by turning them into responsible citizens — rather than imposing punishment without making them comprehend the nature and the consequences of their actions — while all endeavours are made towards making the wellbeing of the child a prime concern.