Home Law International Handbook of Juvenile Justice
Notwithstanding these remarkable developments in the Juvenile Protection Law, three major issues remain a matter of concern: the absence of executive legislation; vague provisions; and the allocation of human, logistical, and financial resources.
The Law has been adopted without its enforcement secondary legislation (regulations, instructions, and orders). Article 66 empowered the Council of Ministers to enact such executive regulations and delegated the Minister of Social Development to adopt instructions and orders that give effect to the Law. However, past experience shows that, without fixing specific date for enacting executive legislation, laws might face standstill. The Law ought to have been enacted along with its regulations and the necessary instructions to apply many of its non-self-executing provisions. Police officers, prosecutors, judges, and child protection officers would not know how to execute certain stipulations without having specific procedures in place.
Here are some examples. How a convicted child might enjoy “periodical and limited vacation,” and for how long, without an executive legislation? The Law requires that child cases to be decided promptly; yet how long “promptly” might take? Although the basis of legal assistance was set forth in Article 10, the application of assistance’s modality remains imprecise. Article 13 on the child’s right to education needs executive order to give effect to the juveniles held in social care institutions to complete their schooling. Similarly, how the child protection officers would be able to prepare reports to the prosecution and to courts without having fixed procedures on such report’s format, length, content, and timing? What are the mechanisms to enforce the measure of warning for the child to refrain from reoffending, to refer the child to an alternative family, and to conduct judicial examination? The delay in enacting executive legislation may not block the implementation of the Law entirely, but it is expected to create confusion and different procedures in dealing with children from one place of the country to another and from one judge or prosecutor to the next; that might, in turn, infringe the respect of the principles of fairness and equality.
The second problem stems from the vague language of a number of the Law’s provisions. Whereas it prohibits torture and ill treatment, Article 7 does not introduce penalties against torturers. Nowhere in Palestinian law can one find explicit penalty against torture perpetrators, notwithstanding its prohibition in the Basic Law and Palestine’s accession, on 2 April 2014, to the International Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment of 10 December 1984. Such a vague ban might create impunity for those who torture or mistreat children. It further stipulated that the arrested child should undergo medical check, without saying what would happen if such a measure is not conducted.
Moreover, the Law stipulated that “the juvenile’s guardian and lawyer shall be notified of every procedure and decision that the child should be notified of” but there is no answer on who should notify such persons and what the consequences in case of nonnotification. Article 28 authorized the Ministry of Social Development to create “Social Defense Office that incorporates socio-psychological specialists alongside child protection officers” but it did not oblige the Ministry to establish such an office and did not mention the type and number of sociologists or psychologists who may be employed. Lastly, Article 60 did not specify a timetable for creating specialized juvenile courts. It rather opened the possibility of assigning judges to juvenile matters. That means that children will continue to be brought “temporarily” before ordinary judges until such an indefinite time on which separate courts would commence. Such vague stipulations pose the risk of turning the Law into a superfluous document, if no measures are expeditiously undertaken in this respect.
Apparently, the Law has been adopted without allocating the necessary financial, logistical, human, institutional resources, or infrastructure. One district chief prosecutor, for example, explained that he assigned two prosecutors to handle juvenile cases from the already inadequate number of existing prosecutors who are barely able to deal with other cases. The same applies to judges whose number is not enough even to face the already overwhelming caseload. Assigning judges to juvenile cases from existing judges without appointing new ones to exclusively oversee juvenile cases puts extra burden on courts, lawyers, children, and their families.
The Law, likewise, established a series of obligations on child protection officers (below), including accompanying juveniles at police stations, prosecution’s investigation, court hearings, preparing reports on the child’s family, health, education, psychology, and monitoring him while staying at the social or medical institutions. Ms. Lubna Anani, Head of the Ministry of Social Development’s office in the south of the West Bank, complained that “in Yatta [a city with over 170,000 inhabitants] alone, there are over 500 cases of various social issues and there is only one employee. How that person may work on dozens of juvenile cases with the due care specified in the law on the top of hundreds of cases that she deals with? It is just impossible!” Juvenile care institutions need to be founded to absorb the growing number of children in conflict with the law. Currently, there is only one juvenile institution in the West Bank (Dar Al-Amal in Ramallah). Without opening at least two additional institutions, one in the north and another in the south of the West Bank, it remains hard to imagine how the Law would be properly applied (see later).
Lastly, the Law lacks to preventive measures for juvenile delinquency. Such measures should be formulated as set out through minimum standards in the Riyadh Guidelines. The measures need to be included at the levels of formal procedures, social settings, families, education, and practical and academic research. The Law also does not include clear arrangements for juveniles’ reintegration in their communities.
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