1 st Meeting of ASEAN Juvenile Justice Organizing Committee

1. 1st Meeting of ASEAN Juvenile Justice Organizing Committee Juvenile Justice System of Myanmar Hang ZaThawn Country Programme Manager Sustainable Development Initiatives (Myanmar) Ltd

2. Contents • Myanmar’s neighbours • ASEAN: 8 Aug 1967 (Indonesia, Malaysia, Philippines, Singapore, Thailand) • Brunei, Cambodia, Laos, Myanmar (23 July 1997), Vietnam • Legal instruments • Court formation • Current practices and challenges

3. India China Bangladesh

4. Facts on Myanmar • Population: 51.4 million (2014) • 135 ethnic groups • British colony for 100 + year • 7 Regions of Bamar • 7 States (Kayah, Kayin, Kachin, Chin, Mon, Rakhine, Shan) • Common law and traditional justice system

5. Legal Instruments relating to Juvenile Justice in Myanmar (in chronological order) • The Prevention of Young Offenders Act, 1930 (before independence from Britain) (Repealed). • The Constitution of the Union of Burma, 1947(Repealed) • Independence on 4thJan 1948 • The Children’s Act, 1955 (Repealed) • Military Revolutionary Council from 2nd Mar 1962 • The Constitution of the Socialist Republic of Union of Burma, 1974. (Repealed)

6. Legal Instruments relating to Juvenile Justice in Myanmar (in chronological order) contd. • State Law and Order Restoration Council (SLORC) from 18 Sept 1988 • The CRC - 20 Nov 1989 • Myanmar acceded 15 July 1991 . (2 reservations Art 15& 37, later withdrawn) • The Myanmar Child Law on 15 July 1993, Rules on Dec 2001 • State Peace and Development Council (SPDC) from 15 Nov 1997

7. Legal Instruments relating to Juvenile Justice in Myanmar (in chronological order) contd. • The Constitution of the Republic of the Union of Myanmar, 2008 • The Republic of the Union of Myanmar from Mar 2011 • Optional Protocol on the Sale of Children, 16 Jan 2012 • Ministry of Social Welfare, Relief and Resettlement reviewing Child Law for amendment: Diversion, victims, DSW power, legal aid

8. Administrative and Court levels

9. Union Judiciary Law 2000 Judicial Principles 3. The administration of justice shall be based upon the following principles: • (a) to administer justice independently according to law; • (b) to dispense justice in open Court unless otherwise prohibited by law; • (c) to obtain the right of defence and the right of appeal in cases according to law; • (d) to support in building of rule of law and regional peace and tranquility by protecting and safeguarding the interests of the people; • (e) to educate the people to understand and abide by the law and nurture the habit of abiding by the law by the people; • (f) to cause to compound and complete the cases within the framework of law for the settlement of cases among the public; • (g) to aim at reforming moral character in meting out punishment to offender.

10. Juvenile Courts • 12 townships out of 43 in Yangon metropolitan areas • 5 out of 5 metropolitan areas in Mandalay • All other areas Township Judges are ex-officio juvenile judges • Appeal and revision to District Courts

11. Current practicesInvestigation (Pre-trial) • Children accused of being in conflict with the law • Cognizable cases • Non-cognizable cases • Formal Court or diversion • Definition of child and youth • Determination of age • Criminal responsibility age (7, 12) • Remand • Legal representation

12. Pre-trial: Police (Art 37) • (a) shall not handcuff or tie with rope; • (b) shall not keep together with adult prisoners; if a girl, keep her with a woman guard; • (c) shall not maltreat or threaten the child; • (d) shall not send child together with adult prisoners from place to place; if a girl, send her with a woman guard; • (e) shall inform the parents or guardian as soon as possible; • (f) shall send arrested child to juvenile court as soon as possible; • (g) shall release the child on a bond, if child cannot be sent up under sub-section (f); • (h) shall send child to temporary care station or appropriate place, if child not released on bond .

13. Under-trial • Separation from adult case • Determination of age • Free legal representation • Sentencing options • Limitation on prison terms • No presumption of innocence • Appeal & revision

14. Under-trial (Art 41) • (a) First determine the age from the birth certificate, citizenship scrutiny card, foreigner's registration certificate, true copy of an extract of school admission register, doctor's medical certificate or other evidence; • (b) jurisdiction only for a child who is not 16 years at the time of offence; • (c) during trial release the child on a bond, care of parents/ guardian, custody of a temporary care station or other appropriate place. Detention under no circumstances; • (d) a child attaining 16 years during trial, continue the case as a child; • (e) offences punishable with death, transportation for life or imprisonment for a term exceeding 3 years, as a warrant case ;

15. Under-trial (Art 42) • (a) separate court or building. If not, in a building / room other than the ordinary sittings of the court; • (b) parents, guardians, court staff, Law Officers, Police (not in uniform), others with permission of court only; • (c) if no lawyer, the assistance of appropriate person, shall be granted permission; • (d) shall arrange interpreter, if necessary; • (e) shall dispose of the case speedily. Govt to provide free legal representation to child and youth tried with offence punishable by death penalty.

16. Under-trial - Art 43 • (a) in the interests of the child, direct anyone, including child, to leave court . If necessary, use force; • (b) trial continues in the absence of the child, if presence not necessary; • (c) direct the parents /guardians to attend every day; • (d) may allow identity of a CCWL, or witness in media if believed to benefit the child; • (e) direct Probation Officer to make inquires and submit report circumstances of child and parents / guardian; • (f) may, allow submission of evidence to contrary.

17. Background enquiry before sentencing: Art 44. Before passing order on a child found guilty, consider and pass reformative and beneficial order: - • (a) the age and character of the child; • (b) the environmental circumstance of the child; • (c) the cause of committing the offence; • (d) the report submitted by the Probation Officer; • (e) other circumstances which are required to be taken into consideration in the interests of the child.

18. Sentencing • 45. Notwithstanding anything contained in any existing law, a death sentence, transportation for life or a sentence of whipping shall not be passed on any child. • 46. A child shall not ordinarily be sentenced to imprisonment. Only if the Juvenile Court is satisfied that the child has committed an offence which is punishable with death or transportation for life under any existing law and that the child is of so unruly or depraved a character or absolutely uncontrollable, he shall be sentenced to imprisonment. Such sentence of imprisonment shall not exceed a term of 7 years.

19. Sentencing options 47. (a) if the offence committed is not serious and the character of the child is not yet perverted; - • (i) release after admonition; • (ii) fine, if 14 years, has income, fine on parents/guardian; • (b) offence serious or not, if character not yet perverted, entrusted to the custody of parents/guardian on execution on bond not exceeding 3 years; • (c) submit to the supervision and management of Probation Officer not exceeding 3 years; • (d) offence is serious or not, if child is perverted, or not yet perverted but has parents or guardian or if child has parents/guardian but cannot be admonished, may commit child to training school for a minimum term of 2 years or till he attains the age of 18 years as a maximum term.

20. Order on parents and Court’s amendment of own order 48. (a) in addition to imprisonment under sec 46 or sec 47 direct parents/ guardian to pay compensation to any person; • (b) under following conditions, amend order who complied with the order passed under section 47 sub-section (c) or sub-section (d) for at least one year, to the custody of the parents or guardian concerned, with or without bond: - • (i) improvement in the moral character of the child; • (ii) being a child who has parents or guardian; • (iii) not being an offence of violation of the Narcotic Drugs and Psychotropic Substances Law; • (c) exercise the powers mentioned in sub-section (b) on the application of the Principal of the relevant training school, Probation Officer or parents or guardian.

21. Appeal and Revision 49. (a) There shall be right of appeal or right of revision in accordance with the provisions of the Code of Criminal Procedure against the order of decision passed under this Law by the Juvenile Court; • (b) If a sentence of imprisonment is passed on the child by a Juvenile Court, or Appellate Court or Court of Revision, a copy of the sentence shall be sent to the Ministry.

22. # of cases • 2013 - 630 cases • 2012 - 580 cases • 2011 - 550 cases • 2010 - 780 cases

23. Training Schools • Borstal. The Gladstone Committee (1895) • Minimum 2 years • Review after one year • Mixed : CCWL • Mindset • Family-like environment

24. Post-trial: Children and Youth in Prison 49.(a) not keep him together with adult until 18 years old; • (b) separate ward or room where no adult prisoners have access; • (c) right to meet parents, guardians, relatives, friends, right to be sent food and prescribed articles in a accordance with the existing regulations and bye-laws; • (d) not employ him in rigorous labour; • (e) provide regular medical check-up; • (f) train and give education to reform his character and vocational skills; • (g) right to enjoy remission period in accordance with the existing regulations and bye-laws.

25. Recommendations of the CRC on 1st Report ( Jan 1997) • Deprivation of liberty as a measure of last resort and for shortest time; • Humane conditions of detention, specific needs of children • Separation from adult detainees; • Legal assistance and judicial review; • Due process of law; • Independence and impartiality of the judiciary. • Training programmes for professionals in involved • Independent monitoring to guarantee the implementation

26. Recommendations of the CRC on 2nd Report (4 Jun 2004) • Raise the age of criminal responsibility; • Offenders below the age of 18 are judged according to a specific procedure and do not receive the same penalties as adults; • Establish juvenile courts and trained juvenile judges in all regions • Limit by law the length of pre-trial detention; • Legal assistance at an early stage of judicial proceedings; • Rights of and conditions of children in detention and imprisonment, complaint mechanisms • Separation of child offenders from children in need of special protection;

27. Recommendations of the CRC on 2nd Report (4 Jun 2004) • Regular contact with their families while in the juvenile justice system; • Regular medical examination of inmates by independent medical staff; (i) Training programmes for all professionals involved in the system; (j) Rehabilitation and reintegration of juveniles following judicial proceedings; (k) Quasi-judicial decisions to send children under the age of 18 to training schools, without the possibility of appeal;

28. Recommendations of the CRC on 3rd & 4th Report (Mar 2012) • (a) Raise the age of criminal responsibility from 7, not below 12; • (b) Pretrial detention only for serious crimes and alternatives for other crimes; • (c) No abuse and ill treatment when in contact or in conflict with the law; • (d) Specialized juvenile courts with specialized judges for children • (e) Prevent children in detention are kept with adults, girls are kept with boys, ensure safe, child-sensitive environment, and maintain regular contact with their families;

29. Providing services for CCWL from neighboring countries • Treatment according to CRC Principles • Info exchange • Networking • BLO in trafficking eg.

30. Thank you!