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Summary: Mr. Ishwor Khatiwada presented his findings
of the empirical studies on Juvenile Justice
System in Nepal at Kathmandu School of Law.
Mr. Ishwor Khatiwada presented his findings of the empirical studies on
Juvenile Justice System in Nepal at Kathmandu School of Law. The research
was conducted in Kathmandu and some other districts of the country. His
presentation was attended by Justice Prem Ram Sharma and Justice
Keshari Raj Pandit from Appellate Court. Other participants included
judges, government attorneys, lawyers, law professors and law students.
Judge Khatiwada initially introduced the scope and objectives of his study.
This study, according to him, was undertaken under the premise
of "Research Partnership" program sponsored by Danish Institute for
Human Rights (DIHR). In his presentation, he highlighted the following
major findings revealed by his survey:
- Children respondents reported hand cuffing in almost all cases. Out of 22
children, 21 in rehabilitation home complained of hand cuffing. Judges,
police personnel also did not rule out the practice of handcuffing;
- Arrest warrant is found in case files, but has no details mentioned. So,
the constitution and laws, which require current arrest warrant to give
details of the causes and reasons for arrest are not fully observed;
Despite absolute prohibition of torture, children interviewed complained
that they had been subjected to torture;
- A child, against the law, has been interrogated in absence of defense
lawyer. Some children reported that they had been interrogated solely in
presence of police investigators;
- Equality to the parties of "Crime", both parties must have access to the
document produced against one another. However, during remand, the
courts have no practice of granting documents to defense lawyers. Hence,
defense is generally meaningless. Thus, the practice do not meet the
international standards;
- Concerning court hearing, information of respondents varies. Lawyers say
that the trial is conducted in public. There is still no practice of closed
camera court. Obviously, the fair trial in relation to children is fully
grounded;
- Media has uncontrolled access to "child's case". His/her identity is easily
accessible;
- Most importantly, the human resource specializing in juvenile justice is
greatly lacking. Judges, prosecutors, police and even defense lawyers have
no specialized training obtained;
- Access to justice in this sector, so far, is limited only in participation in
seminars and conferences. To conclude, the study shows that the law is
not competent or adequate; actors have no training accessibility; and
enforcement of the existing law is very poor.
In his later part, Mr. Khatiwada made recommendations on the basis of his
survey:
- implementation of Children Act should be enhanced;
- juvenile justice system must be separated from criminal justice system;
- criminal justice actors mush change their attitudes towards child in conflict
with laws;
His presentation was followed by comments from the panelists and
participants of the program. Panelist, Justice Prem Raj Sharma, referring to
handcuffing, said that the practice is phenomenal. The mentality is, thus, a
major reason for lapses on criminal justice system.
Mentality of coercion as an orientation is ongoing introspective of age. The
pre-consideration of criminality in the mind of investigators is very strongly
rooted that prevents dealing with child differently. He added that, close
camera court practice is generally evaded and judges are not very much
concerned with the issue. Investigation is also defective, he added.
He further mentioned that criminal age for a child is low, which is one of the
reasons for defective criminal justice system. Justice Sharma also pointed
out to the inconsistency on issue of legal reform. He added that either we
should amend the law or have to enhance the enforcement of existing law.
Mr. Rajendra Kharel, Registrar, Judicial Academy, indicated the need
of "revealing the level of sensibility" of judges in matters of juvenile justice
system. He referred to the need of identifying the issue as to whether
courts are child friendly or not". Judge Devendra Raj Sharma rejoined that
the courts are not juvenile friendly.
Associate Prof. Yubaraj Sangroula, highlighted on three major issues:
- Response of majority of key informants shows that juvenile justice
system is not properly grounded in a positive trend, because there is a
clear indication that the respondents have pointed out to the problem
created by the "integration of criminal justice and juvenile justice system".
It indicates that the clarity in concept of juvenile justice system is emerging
consistently.
- The findings or data that show trial system is not child friendly is also an
understanding of malfunctioning of juvenile justice system.
- Contradiction demonstrated in responses of judges show lapse in the
system. Thus, this focus group discussion should give its views on the
issue.
Ramesh Pokhrel, government attorney at Kathmandu, informed that the
practice of disposition of statement of suspect is strictly done in presence
of government attorney.
Chandra Pokhrel, Inspector, Nepal Police, referring to the prevailing laws
said that information of arrest and cause and reasons should be given to
parents of the child. He pointed out to the tendency of "following the
formality ignoring rationality". So this is an issue of tendency. Justice Pundit
raised the issue of "substantive information", as to whether child has been
totally made aware that wage he/she has been there.
Deputy Attorney General, Narendra Prasad Pathak mentioned that the
competency of key informants should be viewed while analyzing the data.
He added that contradiction between opinions of defense lawyers and
judges on whether the case is being heard in juvenile court is sharp.
Analysis, thus, should observe this contradiction.
Conservative practice of law is a major hurdle in development of the
juvenile justice system. Enforcement of right to information on the charge
should clearly be established by the law. The prevailing mandatory
prosecution system should be reviewed and changed, he underlined.
Justice Pandit suggested restoring some aspects of the tabulation of
information. He said that the tabulation exhibits variance in responses of
key informants, however, the findings should not be suspected in the light
that there is no juvenile court in Nepal. According to him, findings should
reflect the tradition considering the following:
- Enforcement of laws is not effective
- Juvenile benches are envisaged but not implemented, he need is not
properly addressed
- Juvenile justice has no separate rules
- Child does not recognize the officials but there is no system of introducing
the officials to children.
- Infrastructure for juvenile justice system is poor.
Most importantly, knowledge about juvenile justice system is poor among
the stakeholders. Hence, we need to boost up the substantial knowledge
on juvenile justice system. The most important aspect is the change in
attitude of the actors.
Assistant Prof Ashish Adhikari, KSL, summarized that the findings exhibit
pathetic situation of juvenile justice thus it demands separation of juvenile
justice from criminal justice system.
Assistant Prof. Shankar Bir Singh Basnet, KSL opined that guidelines for
enforcement should be developed; change in laws is not the present
demand. The police should do "social investigation", not the "criminal
investigation". This is a flaw of integrating juvenile justice system with
criminal justice system.
Purna Bastola, Government Attorney, pointed out the need of addressing
problem in quashi judicial body and for that, according to him, law needs to
be changed. Prof Madahav Prasad Acharya said that data cannot be exact.
Variance is possible in data which need analysis. The major issue of the
discussion is about the authenticity of the data where there is no problem,
he underlined.