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Justice for children refers to the legal and systemic processes designed to ensure that children are treated fairly and appropriately within the justice system. This encompasses both criminal and civil matters and aims to protect the rights and well-being of children at all stages of their interaction with the law. The goal is to uphold the best interests of children by ensuring access to justice, promoting rehabilitation over punishment, and safeguarding their rights during legal processes.

The core of juvenile justice focuses on four main aspects:

• Identifying causes: Understanding the reasons behind juvenile delinquency.
• Preventive measures: Implementing strategies to prevent children from engaging in delinquent behavior.
• Rehabilitation: Helping juveniles who have committed offenses to reform and reintegrate into society.
• Community safety: Ensuring the community is protected from juvenile delinquency through correctional or restorative justice, rather than punishment.

Legal framework

Before 1992, there was no separate law in Nepal specifically for juvenile delinquents, and they were tried in court as adults. However, after Nepal ratified the Convention on the Rights of the Child (CRC) on January 26, 1990, it became mandatory to reform the existing laws to align with international standards. Consequently, Nepal introduced the Children Act in 1992, and in 2018, the new Act Relating to Children was enacted.

According to the Act Relating to Children 2018, a ‘child’ is defined as any human being below the age of 18 years. The act also defines ‘children in conflict with the law’ as those who have been accused of committing an offense and those who have been convicted by the Juvenile Court for committing an offense.

The Constitution of Nepal ensures the right to juvenile-friendly justice as a fundamental right. Article 39(8) of the constitution states that every child has the right to a justice system designed to be friendly to juveniles. This approach is based on the understanding that children are not mentally capable of committing crimes in the same way adults do.

The prevailing law dealing with delinquent juveniles is the Act Relating to Children 2018. According to this act, a child below 10 years of age is not criminally liable for any act they commit; therefore, no case or punishment is instituted against them. If a child between the ages of 10 and 14 commits an offense that is punishable by a fine, they are released after counseling. If such a child commits an offense punishable by imprisonment, they are either imprisoned for up to six months or sent to a child reform home for a period not exceeding one year.

For children aged 14 to 16 who commit an offense, the punishment is half of what would be imposed on an adult. If a child aged 16 to 18 commits an offense, they are punished with two-thirds of the penalty that would be imposed on an adult.

Challenges in juvenile justice

In Nepal’s justice system, there is a legal requirement to communicate with the accused in a language they understand. This means they should be informed about their criminal charges in simple terms they can comprehend. However, this requirement is often not followed. Children are arrested by police without fully understanding the crime they are accused of committing. They are often left in the dark about the nature of their charges.

Furthermore, children fully do not understand the legal terms and proceedings, making it difficult for them to grasp the details of their charges and defend themselves. This lack of clear communication severely hampers their ability to engage with the legal process. Without proper understanding, they cannot make informed decisions or provide relevant information that might help their case. 

Delayed case resolution 

The Supreme Court of Nepal has time and again directed district courts to adjudicate juvenile delinquency cases within 120 days through continuous hearings as mandated by section 37 of the Act relating to Children 2018.  Notable cases such as Kalinchowk 120 vs Dolakha District Court and Advocate Pushpa Raj Poudel vs Sindhuli District Court emphasize this directive. Despite these clear instructions, the timeframe is often not met, leading to significant delays in the legal process. This delay exacerbates their emotional and mental health issues, impeding their ability to reintegrate into society effectively.

Non-availability of juvenile bench 

In most cases, children are tried in regular benches instead of juvenile benches, as envisioned in Section 30 of the Act Relating to Children. The juvenile bench should be established in every district court and include a district judge, a social worker, and a child psychologist. However, the act allows district judges discretion to forgo forming a juvenile bench if it’s not feasible for any reason. Due to this exception, many children are tried without the presence of child psychologists, which hampers their mental well-being.

This practice contradicts the principles of a juvenile-friendly justice system and fails to provide the specialized support children need. The absence of child psychologists and social workers means that the unique psychological and social needs of juvenile offenders are not adequately addressed. Consequently, children face trials that do not consider their mental and emotional maturity, leading to decisions that may not be in their best interests.

Way forward 

While Nepal’s Act Relating to Children 2018 provides a robust framework for protecting the rights of juveniles in conflict with the law, significant gaps in practice undermine its effectiveness. Addressing these implementation issues is crucial to ensure that the juvenile justice system in Nepal truly serves the best interests of children, providing them with fair, timely, and child-friendly legal proceedings.

To address delays in juvenile cases, we need to enforce the 120-day resolution timeframe strictly. This can be done by monitoring case progress and ensuring deadlines are met. Publishing regular reports on case statuses will increase transparency. Additionally, creating fast-track courts for juvenile cases will speed up their resolution and reduce backlogs. 

Juvenile benches should be mandatory by amending the Act Relating to Children to eliminate exceptions. To support the mental and emotional well-being of juvenile offenders, we need to ensure the availability of child psychologists and social workers during legal proceedings. Establishing partnerships with NGOs can provide additional support and resources. 

We should provide regular training for police, lawyers, and judges on effectively communicating with juveniles. Developing child-friendly informational materials that explain legal processes in simple terms will also help. Employing child advocates and counselors can ensure that children understand their rights and charges.

Finally, establishing a comprehensive national policy on juvenile justice, regularly reviewing and updating it, and fostering collaboration among stakeholders, including the judiciary, law enforcement, and social services, will create a cohesive system that better serves the needs of juveniles. Conducting research and using data to inform policies will ensure that interventions are effective and tailored to the specific needs of children in conflict with the law.

The Maoist insurgency in Nepal, also known as the People’s War, led to widespread human rights abuses by both the Maoist rebels and the government forces. Enforced disappearances were a common tactic used during this period, with numerous individuals abducted and never seen again. According to reports from various human rights organizations, including the United Nations, hundreds of cases of enforced disappearances occurred during the conflict. The families of the disappeared have been left in a state of perpetual uncertainty and grief, without any information about the fate or whereabouts of their loved ones.

The Comprehensive Peace Accord (CPA) of 2006 was an agreement that ended the civil war and laid the foundation for peace and reconciliation in Nepal. Among its various provisions, the CPA emphasized the need to address human rights violations committed during the conflict, including enforced disappearances. It pledged to establish mechanisms for truth-seeking, reconciliation, and justice, including the formation of Truth and Reconciliation Commission (TRC) and Commission on Investigation of Enforced Disappeared Persons (CIEDP).

Despite these commitments, the progress in addressing the issue of enforced disappearances has been slow and inadequate. The TRC and CIEDP were only established in 2015, nearly a decade after the signing of the CPA, and have faced numerous challenges, including political interference, lack of resources, and limited mandates. As of now, many families of the disappeared are still awaiting answers and justice.

The Supreme Court of Nepal has played a crucial role in addressing the issue of enforced disappearances. In a landmark decision in 2007, the Court ordered the government to criminalize enforced disappearances and establish a commission to investigate such cases. This decision underscored the need for legal reforms and accountability mechanisms to address enforced disappearances in accordance with international standards.

Subsequent Supreme Court rulings have reiterated the importance of ensuring justice for victims of enforced disappearances. For instance, in 2015, the Court struck down several provisions of the TRC and CIEDP Act, which were deemed inconsistent with international human rights norms, particularly concerning amnesty provisions for serious human rights violations. The Court emphasized the necessity of prosecuting perpetrators of enforced disappearances and providing truth and reparations to victims’ families.

Nepal’s 2018 penal code made enforced disappearance a criminal offense under domestic law for the first time. Nepal has taken some steps towards addressing enforced disappearances through national laws and commissions. The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act of 2014 established the TRC and CIEDP with the mandate to investigate conflict-era human rights violations and recommend actions for reparations, prosecutions, and institutional reforms. However, these commissions have been criticized for their inefficacy and lack of independence.

The CIEDP, in particular, has struggled to fulfill its mandate. As of 2024, A total of 3,288 complaints have been submitted to the Commission of Investigation on Enforced Disappeared Persons. It has yet to complete its investigations into the thousands of cases submitted by victims' families. The slow pace of investigations and the lack of concrete outcomes have undermined public confidence in the commission. It also highlighted the need for stronger legal and institutional frameworks to address enforced disappearances effectively.

ICPPED: A path forward

The International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), adopted by the United Nations General Assembly in 2006, is a comprehensive international treaty aimed at preventing enforced disappearances, ensuring accountability, and providing justice and reparations to victims and their families. It establishes the right of individuals not to be subjected to enforced disappearance and the right of victims and their families to know the truth about the circumstances of enforced disappearances and the fate of the disappeared persons.  

Why should Nepal ratify ICPPED?

Enhancing accountability and justice: The ICPPED requires state parties to ensure that enforced disappearances are investigated thoroughly and perpetrators are brought to justice. Ratifying the convention would impose a legal obligation on Nepal to prosecute those responsible for enforced disappearances, regardless of their political affiliation.

Improving institutional capacity: Compliance with the ICPPED would likely lead to increased international support and cooperation, including technical assistance and capacity-building initiatives. Such support could enhance the operational capacity of the TRC and CIEDP. 

Providing a framework for reparations: The ICPPED outlines the rights of victims and their families to receive reparations, including restitution, compensation, rehabilitation, and guarantees of non-repetition. Ratifying the convention would reinforce Nepal’s commitment to addressing the needs of victims comprehensively. This would include not only financial compensation but also measures for psychological and social rehabilitation, which are crucial for the healing process.

Promoting transparency and public trust: Ratification of the ICPPED would require Nepal to adopt measures ensuring transparency in the handling of enforced disappearance cases. This includes maintaining accurate records, providing information to families, and making investigation findings public. Greater transparency would help restore public trust in the TRC and CIEDP, as well as in the broader justice system. 

Aligning with international standards: By ratifying the ICPPED, Nepal would align its domestic policies with international human rights standards. This alignment would enhance Nepal’s international standing and demonstrate its commitment to upholding human rights. It would also facilitate cooperation with international bodies and other countries in addressing enforced disappearances, including in the areas of extradition, mutual legal assistance, and sharing of best practices.

Ratifying the International Convention for the Protection of All Persons from Enforced Disappearance is not merely a symbolic gesture for Nepal; it is a necessary step towards addressing a painful chapter in its history, ensuring justice for victims, and upholding the rule of law. Given the historical context of enforced disappearances during the conflict, the commitments made under the Comprehensive Peace Accord, the existing national laws and commissions, and the directives of the Supreme Court, Nepal has both the moral and legal imperative to ratify the ICPPED. Doing so would strengthen its legal frameworks, enhance accountability, provide closure to victims’ families, uphold international human rights obligations, and fulfill its commitments to peace and justice.