Carmera Ferraro - Guardian Weekly Tuesday 23 October 2012
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| Cambodia's justice system is changing. Photograph: Chiva Touch |
Sixteen-year-old Pheakdei and Sakngea (not their real names)
were jailed for two years for stealing a mobile phone worth just $20.
The boys spent 18 months in detention awaiting trial, which was
postponed twice because the prosecutor did not turn up, and once their
case was heard they were sentenced to six months in prison – despite
already having served time.
It's not unusual for minors to have their human rights violated in Cambodia's judicial system, say NGO workers in the region, despite ratification of the UN Convention on the Rights of the Child (UNCROC) in 1992.
Cambodian
children are often held in pretrial detention where they wait months to
have their cases heard; are tried without legal counsel in ordinary
criminal courts; are given long and inappropriate sentences for petty
crimes such as theft; and are placed in adult jails, where they can
experience physical and sexual abuse from adult prisoners and prison
staff. Child witnesses and victims of crime are also often subjected to
violations, including giving testimony in open court, where they have
direct exposure to the perpetrator and their supporters, and they can
face harsh cross-examination.
The impact of this system on minors can be great. As Kimleng Ouk, the legal director of Legal Aid Cambodia
(LAC), a Khmer-run NGO that offers pro bono legal services to
Cambodia's poor, says, children in contact with the law are at risk of
"prolonged interruption to their family life, education and their
personal development".
However, a major initiative seeks to make a difference. Children's Rights International
(CRI), an Australian-based organisation that promotes the rights of
children mainly in developing countries, is working in partnership with
LAC, as well as the department of justice (through a joint working party
consisting of government and a range of NGOs such as Unicef and Save the Children) to introduce a child-friendly legal system in Cambodia.
"Children
represent the future of Cambodia," says Alastair Nicholson, CRI's chair
and a former chief justice of the family court of Australia. "If the
system respects their human rights, children are more likely to develop
as law-abiding citizens and the future is good. If not, it is bleak."
CRI's
programme related to Cambodia's treatment of children will run over
the next three years, and longer if necessary. It will consist of mainly
volunteer Australian legal and social justice professionals who will
work with Cambodian judges, prosecutors, court administrators, police,
correction officials and others to raise awareness and expertise of
child-friendly procedures that are in line with UNCROC principles.
The
programme will include the treatment of child offenders, victims and
witnesses; the development and implementation of diversion programmes
for child offenders away from the criminal justice system; improvement
of court administration and case management in relation to children; and
the care, custody and protection of children in contact with the law.
CRI's
programme coincides with the Cambodian government's draft juvenile
justice law, which is anticipated to come into effect in 2013 after an
11-year gestation. Nicholson says that while this law won't create a
separate specialist children's court, it is expected to incorporate
important reform around non-custodial sentencing of minors and their
diversion from the traditional justice system. CRI's programme, with its
educational and training focus, will help Cambodia's police officials,
prosecutors, judges, local authorities and community organisations, who
often lack understanding of children's rights, in applying this law.
The
CRI programme and the new law come at a critical time. According to
figures provided by Unicef, there has been a 92% increase in the number
of under-18s in prison – from 403 in 2005 to 772 in 2010. These figures
in large part reflect the hardship and turmoil caused by Cambodia's
history. French colonialism, the Vietnam war, the genocide of the Khmer Rouge,
a Vietnamese invasion and civil war have devastated the country
economically and socially, leaving many youths to fall into conflict
with the law just to survive.
Other NGOs have sought to address
the violations children have been subjected to with a number of
important services: monitoring and advocacy work; training professionals
such as lawyers, prosecutors, judges and prison officials about best
practice; offering legal representation to children; providing minors
with healthcare, education and vocational programmes in prisons; and
providing public education about the rights of children.
For
example, LAC's child justice programme trains government authorities and
law enforcement officers in proper practices, establishes diversion
programmes for children and advocates for the protection of children
against unlawful pretrial detention.
"When LAC came, my life has
changed," says Nhean (not his real name), who was 12 years old when he
went to jail for seven-and-a-half years for theft – a crime that he says
he didn't commit. He has never fully understood what he was supposed to
have done.
"The beatings stopped. We had our own rooms [a small
number of prisons have separate cells for children; however, they can
have up to 50 children in them] so we did not have to be under the
influence of the not-so-nice adult prisoners … I would have extra food,
bathing materials and some laundry soap. They have encouraged us to
learn some skills: hair cutting, electronics and motorcycle repair."
The
challenges are great. Institutional constraints, lack of resources,
inadequate training of legal and social justice professionals in
child-friendly approaches, low levels of co-operation, and corruption
will all need to be tackled.
But there is hope.
Says
Nicholson: "I think it fair to say that it [Cambodia] has adopted
child-friendly principles and this project is about putting them into
practice. The developments to date give rise to confidence that Cambodia
is serious about achieving these objects."
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