Juvenile crime and the law; an untended dilemma

By SANDIL MALLIKARACHCHI

The Sri Lankan law does clearly define the term ‘child’. From this and other factors, many issues arise, which deeply concern the future of our nation. Juvenile delinquency is one such matter that warrants our attention and should be dealt with carefully.

Crimes committed by persons under the legal age of 18, may range from petty thefts, trespassing, and vandalism, to more serious offences such as drug abuse, assault, and even murder. Deficient upbringing, domestic abuse, peer influence, intellectual disability, and mental illness are common elements that drive minors towards crime. A majority of such acts tend to be unplanned, opportunistic, and attention-seeking.

Young offenders are usually tried at juvenile courts, which were created on the understanding that youths did not have the rational and cognitive development that adults had and required more protection. Thus, it has been the international practice to resort to restorative means of justice, rather than retributive measures, when minors are concerned. Children are ideally penalised less than the adults who are found guilty on the same charge. The justifying philosophy is the same that prevents children from voting, owning property, and entering into legally binding contracts.

Sri Lanka has been progressive in enacting legislative reforms to ensure a fair judiciary procedure for juvenile offenders. The statement is reinstated by the Children (Judicial Protection) Bill (CJPB), which has been drafted by the Ministry of Justice, and several other similar acts. However, certain legal clauses and practices continue to exist, which impede the effectiveness of Sri Lanka’s youth justice system.

Questionable Laws, Practices, and Technicalities

There are only two specialised Juvenile Courts in Sri Lanka. This inadequacy leads to a majority of children’s cases being heard in ordinary courts, that might not be so susceptible to the needs of children. The Penal Code does not recognise the distinction between the age at the time of the offence and the age in which the verdict is passed. Sans the jargon, this means that crimes a person committed as a child, are often tried not so different from those of an adult. The gravity of the same is to be realised with regards to numerous persons that have been imprisoned for life and sentenced to death, for crimes they committed, as a person below the legal age of 18.

If it were not for the increasing backlog in our courtrooms, which often sees years passing between the commencement of a trial and the passing of the verdict, those sentences would have been considerably reduced.

Our law fails to prioritise the diversion of children away from the formal justice system. Juvenile offenders are subjected to increased institutionalisation, often at the expense of their social and psychological well-being. Even though international communities have been continuously advancing legislation to ensure that children are not deprived of their liberty as a last resort, in the local context institutionalisation is not particularly resisted. In 2013, there were over 14,000 children institutionalised across the country. As Sri Lanka has ratified agreements such as the Convention on the Rights of the Child (CRC), we are further obliged to incorporate the progressive international practices into our frameworks.

The future of a child that is sentenced to a remand home or some other institution, is a matter that seldom makes it to our roundtables. At the end of such a sentence, the child’s education is irreparably damaged. This is more often than not, the beginning of an unavoidable descent to the world of crime, as their chances of decent employment opportunities are minimal. Furthermore, those children do not come out to a welcoming society, and in most cases are severely marginalised by the families, teachers and peers.

The raft between prevailing global standards and the domestic framework for children’s justice, is further evident in the area of pre-trial detention. A Juvenile Court can remand an alleged youth in a remand home or in the custody of a ‘fit person’ for a period not exceeding twenty-one days, to collect the information necessary to establish guilt. These time-limits do not align with the international frameworks, and give way to the possibility of children being unduly detained without sufficient oversight.

Under the Children and Young Persons Ordinance (CYPO) of the Sri Lankan law, a detention order by an approved or certified school lasts for three years, which is potentially longer than an adult’s detainment for an identical offence. CYPO does not require that a parent or a guardian be notified before a child is brought before a Magistrate. Moreover, law enforcement officers are not required to explain to a child the reasons for their arrest.

Human resource constraints in our juvenile justice institutions also raise several red flags. Police, Department of Probation and Child Care Services, and National Child Protection Authority are some of the establishments that frequently encounter children that clash with the law. Administrative capacities in those offices are often minimal, and Children’s and Women’s Desks are severely understaffed. This has been the cause for systematic delays in those offices, which in turn impedes the effectiveness of the Sri Lankan child justice system as a whole.

Even though child justice institutions are required to have a separate child-friendly area which is overseen by plain-clothes officers, this rarely happens in real life. The prevalent attitudes of the officers in the youth justice system can undoubtedly be subjected to improvement as well.

Policy Interventions

Legal reforms should be sought, especially bearing the purpose of judicial intervention in mind, which primarily is to prevent recidivism. It should also be noted that children are more susceptible to forms of rehabilitation than adults. A majority of persons that come to conflict with the law in their youth, grow up to be righteous citizens. Every step we take should be to hasten that process.

The Penal Code is recommended to be amended, so a line is drawn between the age of commission of a crime and the age in which the conviction is made. Developing an alternative legal framework to handle children in conflict with the law, without resorting to judicial proceedings, should be prioritised. It is strongly suggested that a circular be issued by the Judicial Services Commission that instructs magistrates and judges to order the institutionalisation of a child as a final recourse.

Limiting juvenile delinquency should be attempted by facilitating effective educational opportunities and counselling, stabilising family environments, and promoting community-based programmes. Perfunctory reforms that fail to address the root cause of the problem will only sanction further exacerbation of the same.

The attitudes of the policymakers towards international ratifications should also be subjected to change. Those agreements should not be viewed in terms of a burden. Effective compliance with such treaties will not only further the course of justice, but might as well be instrumental in soliciting additional international funding.

Law enforcement officials, prosecutors and social workers should be made aware of existing international standards concerning juvenile justice, and also should be trained to handle the sensitive issues that involve minors.

However, the areas focused in this brief article cannot be regarded as an exhaustive examination of every issue that falls under the scope of juvenile justice.

When a child reaches the point of consciously defying the law, something somewhere has undeniably gone wrong. The society is as reprehensible as the child is. The society of which, we are all inextricable constituents. Thus, it is our collective duty to push for lasting reforms towards a fairer law for all.