CRI’s decade long commitment to juvenile justice issues in Cambodia has received significant recognition with the passage of that country’s Juvenile Justice Law (JJL) in July 2016, followed by measures currently being undertaken to ensure its effective implementation.
Cambodia ratified the United Nations Convention on the Rights of the Child (UNCROC) in 1992, but has always had great difficulty in adhering to its requirements, particularly in relation to young people who come into conflict with the law in that country. For example, two major requirements under article 37 of the Convention (1) that detention of juveniles should be a measure of last resort and for the shortest appropriate period of time and that (2) children deprived of their liberty should be separated from adults, have been virtually impossible to fulfil in the Cambodian context. As a result, many young offenders who have committed minor offences are currently tried and penalised as adults, and the rate of incarceration of young people is disturbingly high.
The JJL is critical to ensuring that the country remedies these occurrences and complies with these and many other requirements and responsibilities, and its passage requires significant changes to be made to the country’s legislation, procedures and practices. Key government ministries are in future required to develop new procedures in areas such as age determination, arrest, prosecution, court hearings, diversion and detention. The challenge is great, as many facets of the new legislative framework involve concepts previously unknown to the Cambodian law and to its people.
Despite the difficulties fortunately CRI has a long history of engaging with many of those in Cambodia who are now central to the operation of the legislation, and hopefully its success. Their continuing enthusiasm and commitment to the project will be vital over the months and years to come.
THE ROLE OF CRI
Since 2006, in optimistic anticipation of major legislative change and to improve the circumstances of young Cambodian offenders, CRI’s initiatives have included the provision of a number of seminars and workshops, both in Australia and Cambodia, for judges, prosecutors, lawyers, court officials and police working in their different area of responsibility with young offenders. These meetings have emphasised and recognised the considerable cultural, economic and historical differences between the two countries. They have also provided an opportunity for those working in Cambodia in this extremely difficult area to consider a co-ordinated multi- disciplinary approach to juvenile crime, a focus on deterrence and not solely punishment, and a recognition of the differences in the capacities of young people and adults to understand the seriousness and consequences of their conduct. The presence of social workers, police, paediatricians and psychologists, in addition to lawyers, judicial officers and government officials, has reinforced the importance of taking a broad approach to juvenile crime and the need to prevent, wherever possible, re-offending and institutional abuse.
Important seminars conducted by CRI in Phnom Penh and Siem Reap in November 2015 acted as major catalysts for the eventual passage of the JJL. In addition, the different perspectives of youth justice provided by overseas presenters from New Zealand, Singapore as well as Australia were immensely valuable in emphasising that CRI was taking a broad approach towards youth justice and encouraging its acceptance ‘on the ground’.
Additional assistance was provided via a visit CRI organised for the Cambodian Minister for Justice and a group of Cambodian officials, (including senior members of the Ministries of Justice and Social Affairs), to Melbourne in March 2016 to examine the system of juvenile justice in Victoria.
Several months after the JJL was passed, I travelled to Cambodia with Board members Frank Meredith and Sue Marshall, to explore ways in which CRI might be able to assist the Cambodian Government in relation to the implementation of its provisions. We met there with senior officials of the relevant Ministries and UNICEF, together with representatives of the Non Government Organisation Hagar, and had very productive discussions. Professor Marshall, who is CRI’s Project Manager, later returned for further discussions in October.
As a result of these developments, CRI was commissioned by the Cambodian Government, and with funding provided by UNICEF, to develop a 3 year strategic and operational plan to guide and monitor the implementation of the JJL. This plan’s development has been the work of a CRI project team, working with our Cambodian partners, Legal Aid Cambodia, and involving extensive consultation with the relevant Government ministries, agencies and NGOs.
The consultations have taken the form of strategic consultation workshops, the first of which took place over 2 days in Phnom Penh in March this year, with Sue Marshall and I.
We brought together all the relevant parties, to get feedback from them as to the plan’s contents, reach and practicality as part of its preparation. The work included preparation of a matrix setting out all the legislative obligations required by each article of the JJL. The material was translated into Khmer and simultaneous translation was provided. Over 70 people attended, including representatives of all relevant government organisations such as social welfare, prisons, health and education.
Important issues to be considered included what changes are required to current practices and procedures and what skills, resources and programs need to be developed to meet the objectives of the legislation. The plan CRI has developed is complicated because of the entirely novel nature of the law to Cambodia. The involvement of social workers, (itself an infant profession in Cambodia) and the Ministry of Social Welfare in the Juvenile Justice system, is a first for Cambodia, and much training will be required, both now and in the future. Similarly, the requirements of the law are a novelty for the entire justice system, and extensive training in its application is necessary for police, prosecutors, lawyers, court officials and judges. Coordination between all agencies and professions and an understanding of the holistic nature of the new system is key to its success.
A second strategic consultation workshop was held in late April in Phnom Penh and was attended by over 80 participants from all relevant sectors. Our most recently appointed board member, Mr Hieng Muy Lim, was fortunately able to be present and his knowledge of both Cambodian and Australian, practices was of great assistance to the process.
CRI presented 10 operational program areas in this phase of the consultation, including an overview of the strategic direction required of each. Group discussions provided valuable feedback and allowed several key concepts to be clarified and potential challenges identified. One again, interpreters were present and their involvement was essential to the interactive consultative process CRI was committed to. As a consequence of this intensive, complicated consultation process a further draft has been prepared which will, when finalised by the end of May will, we believe be eventually be implemented throughout Cambodia. This draft will be formally presented by me to the Ministry of Social Welfare on Tuesday 9 May 2017. Feedback will be sought in the following fortnight when the final plan will be completed.
This exercise has been a major challenge for CRI, but I have every confidence that it will be successfully completed.
Although this is a three-year plan, this is not to suggest that its implementation will be fully developed by that time. Further planning will be necessary as it develops, and measures will require careful monitoring. Concepts like a lenient approach to offences by children, diversion and rehabilitation and acceptance of child offenders back into the community will not receive overnight acceptance and will need to be carefully explained and supported at the highest level, both financially and by public expressions of that support.
A fully developed and costed Strategic and Operation Plan will eventually ensure the JJL is fully and systematically implemented, provided that the level of support discussed above continues for many years into the future. It will also provide donors and development partners with clear guidance about where to invest in the new law. Without such a plan, it is unlikely that significant donor resources can be mobilised, and the human rights of thousands of young Cambodians now and for years to come will suffer accordingly.
I would like to acknowledge the strong support of His Excellency Nim Thoth, Secretary of State of the Ministry of Social Welfare and His Excellency You Bunleng, President of the Court of Appeal, for their help and advice.
I also acknowledge CRI’s debt on the Australian side to Sue Marshall in particular, who is the Project Organiser from CRI and to Board Members, Frank Meredith and Hieng Muy Lim.
Sue is the architect of this project and has worked tirelessly to put it together, spending long hours and days doing so. She and I have made four visits to Cambodia this year and she has stayed considerably longer than I have.
We are similarly indebted on the Cambodian side to Touch Chiva, the Cambodian Project Organiser, Op Vibol, Monika Var and His Excellency Kong Chhan, formerly of the Ministry of Social Welfare.
Finally, this project could not have happened without the support of UNICEF and in particular, Ms Debra Comini UNICEF representative to Cambodia, Mr Bruce Grant, Chief of Child Protection and his colleague, Mr Vanna Lim from UNICEF Cambodia