It is unfortunate that the State machinery, which is supposed to educate, nurture and reform our children is becoming an authority of threat and enforcement. When education is the foundation for life, the notification from the Ministry of Education threatening the incarceration states otherwise. 

No state agency has the authority to arrest any person, let alone children, without following due process of law. Any arrest not authorised by law will be unlawful, procedural arbitrary and unconstitutional. The authority to grant or reject bail only rests with the court not police. No law enforcement including police has authority to operate at whims and fancies. 

His Majesty said: “the future is neither unseen nor unknown. It is what we make of it. Our children’s tomorrow has to be created by us today.” What kind of children’s tomorrow are we creating by incarcerating them today? Articles 37 and 40 of the Convention on Rights of a Child which Bhutan ratified states “the children in conflict with the law have the right to treatment that promotes their sense of dignity and worth, takes into account their age and aims at their reintegration into society, a closed facility should be a measure of last resort.”  

The Child Care and Protection Act of Bhutan 2011 reiterates the obligations under the CRC and our Constitution. The core mandate of the State under this Act is to “provide care, protection, guidance, counselling, treatment, development, rehabilitation, adjudication and disposition of matters relating to children in conflict with the law in the most favourable manner and the best interest of the child.” The law also prohibits arbitrary arrest, detention, imprisonment, or deprivation of liberty and arrest must be the last resort and shortest time. The law further mandates the entire society not just schools and parents “to ensure the harmonious development of the child and even if a child commits an offence,” diversion, reformative, social-reintegration and restorative must be the solution. 

The United Nations Office on Drugs and Crime even developed” an integrated strategy to assist the Member States with juvenile justice reform, emphasising the importance of prevention and rehabilitation. UNODC stated that the “focus of criminal justice responses should be shifted from imposing punishment and isolation to investing in longer-term strategies for crime prevention, rehabilitation, restorative justice, and social reintegration, with an emphasis on the most vulnerable. A study by the UN found that at least 410,000 children were detained in prisons and 1 million children were held in police custody every year. As a result, the UN Committee on the Rights of the Child revised their guidance recommending the absolute minimum age of criminal responsibility from 12 to 14 years of age.

The studies showed that 70 to 80 percent of incarcerated juveniles got rearrested within three years and incarceration is ineffective in reducing recidivism and may maintain, or even increase, levels of engagement in antisocial behaviour and criminal activity.”   If children are caught drunk or found in nightclubs or fighting under the influence of alcohol, the government should be prosecuted for making these gateway drugs-alcohol and tobacco easily accessible and affordable? Liabilities must start with the government, society, law enforcement agencies, and legislature for failing to create a conducive environment for our children. The recent notification from the MoE will damage the country’s image on child justice and undermine decades of reforms we have initiated for our children. 

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.