By Anne Breillat
The child in this photograph is an actor.
© UNICEF Cambodia/2015/Luis Barreto
The rights of Cambodian children recently took an important step forward.
The long-awaited draft juvenile justice law was approved by the National Assembly on 30 May 2016 and signed by the President of the Senate on behalf of the King on 14 July 2016. The law is the first measure of its kind to protect children in conflict with the law in Cambodia. It focuses on diversion as the proper response to alleged youth criminality rather than punishment, which is the current approach in a country that lacks a system tailored to the needs of children. The new law is expected to come into force in early 2017 and has the potential to change the life of Cambodian children in conflict with the law.
Young offenders who have committed minor offenses such as theft or drug use are currently tried as adults and often face prison time in areas shared with adults. Many of these children struggle to return to normal life. They may be stigmatized or face discrimination after returning home. This often leads to a break with their family and community and to a dangerous life living on the streets.
In 2015, eight in every 100,000 Cambodian children were incarcerated.
The juvenile justice law was initially drafted in 2002 by the Cambodian National Council for Children, the government agency that oversees all policies related to Cambodian children. Many organizations contributed to the design of the new law, including Legal Aid Cambodia, Every Child Cambodia, Plan International, Save the Children, World Vision, the NGO Coalition for Child Rights (NGOCRC), Child Rights International, other international NGOs, the Office of Drugs and Crime, the Office of the High Commission of Human Rights and UNICEF. This important reform was made possible by the leadership provided by the Ministry of Social Affairs Veterans and Youth Rehabilitation and the Ministry of Justice. However, the process stalled in 2010, mainly due to the belief that supporting children in conflict with the law is akin to helping criminals and would encourage criminality. These views had to be challenged for the Government to fully commit to upgrading the juvenile justice system.
After years of advocacy, UNICEF, Plan International, Children’s Rights International and other partners escalated efforts in 2015. For instance, the UNICEF Representative and the Minister for Social Affairs, Veterans and Youth met and agreed to reconstitute the working group on juvenile justice to do a final review of the law for submission to Government for approval. To deepen the Government's understanding of the importance of juvenile justice, Child Rights International, with the support of UNICEF and the Government of Australia, organized two workshops on child justice in November 2015 to emphasize the principles of the Convention on the Rights of the Child, ratified by Cambodia in 1992. The Convention clearly states that detention of juveniles should be a measure of last resort and for the shortest appropriate period of time. It also emphasizes the rights of children to treatment that promotes a sense of dignity and worth and that aims at his or her reintegration into society.
The involved ministries—Ministry of Justice and Ministry of Social Affairs, Veterans and Youth Rehabilitation--decided they needed to more closely study a properly functioning model of juvenile justice to ensure passage of the law. Concepts of diversion and restorative justice, in particular, are new to Cambodia and required explanation and observation of best practices.
In response, UNICEF and Children’s Rights International organized a week-long study tour in March 2016 to Melbourne, Australia, for a high-level delegation of 10 Cambodian officials representing the justice system, including the Minister of Justice, Deputy Police Commissioner and several secretaries of state, accompanied by UNICEF and Plan International. The delegation attended lectures by eminent professors and legal practitioners in the field of juvenile justice, met with judges and visited the Children’s Court of Victoria, along with other emblematic places for juvenile justice.
Participant Kong Chhan, Juvenile Justice Adviser to the Ministry of Social Affairs, said his experience convinced him that Cambodia should follow Australia’s good practices in response to youth criminality, especially the “placement of child offenders under the supervision of the Australian relevant Ministries, where staff are skillful and they have high knowledge on child’s rights”. He also found it very useful to learn about child-friendly procedures, which encourage the participation of the child in the cases. “These procedures are implemented in the courts and police offices, where court staff and police officers dress and talk in a friendly way so that children feel safe and confident,” Chhan said. “Children feel free to talk and express their point of view.”
The Cambodian delegation learned about the efficiency of diversion rather than punishment: channeling a minor away from criminal procedure who has admitted his/her guilt, in exchange for the fulfillment of some obligations by the minor. They learned how punishment actually increases the likelihood that a child will sink into criminality and re-offend, as enduring the arrest and court proceedings can traumatize a child. Diversion allows children to find a way to rehabilitation by keeping strong links with their families and communities, thus reducing the likelihood of future acts of criminality while also protecting children.
Participants examined restorative justice, whereby children are not punished for crimes but rather given an opportunity to repair the damage done, e.g., compensating a shopkeeper who had been the victim of theft by helping out in the store.
Her Excellency Chan Sotheavy, Secretary of State for Justice, highlighted the importance of having learned about diversion. With regard to the concept of this diversion, we also included in the draft Juvenile Justice Law, she explained. “The visit allowed us to fully understand the concept of diversion and the application of the diversion procedures that Australia has good practices on and it works effectively. Especially, the visit was conducted at the right time for us to defend the Juvenile Justice Law.”
Most important, the study tour to Australia highlighted the importance of considering the best interest of children in every aspect of the justice process, including when a minor is convicted. Children should not be viewed or treated as criminals, and if they receive appropriate care and support, they are less likely to become dangerous to society.
Subjecting children with punitive measures stigmatizes them for life, seriously limiting their opportunities as adults. The officials also learned how vulnerable children—those exposed to violence and/or environments that deprive them of their basic rights to school, proper health care, etc.--are more likely to commit offenses. More than anything, these children need education, protection, integration and opportunities; it is the Government’s responsibility to provide this.
With renewed support for the law, Cambodia is making important strides toward an environment that focuses on rehabilitation, education, diversion and integration of young offenders, giving them a better chance to live a safe and balanced life.
The Cambodian delegation during the study tour in Melbourne, Australia, on juvenile justice, March 2016
|© Ministry of Social Affairs, Veterans and Youth Rehabilitation/2016/His Excellency Kong Chhan|