Last Friday, the Asian Human Rights Commission (AHRC) issued an Urgent Appeal on the case of three teenage girls who have been imprisoned for alleged involvement in an illegal lottery ring in Burma (AHRC-UAC-131-2009). Although the three are all under 16, they were tried in an adult court and sentenced to prison because the police allegedly submitted false documents on their dates of birth, and the judge ignored evidence that cast doubt on the police documentation. The case is currently being appealed at the divisional court and there are high hopes that the judge there will properly review the facts and see that the three are released.
Under the Child Law 1993, a child is anyone under the age of 16. The ages of 16 and 17, which is what the police in this case recorded the children as being, are classed as “youth”. What this bizarre category means is that a youth can be tried in an ordinary court and convicted as an adult, but that the judge has to take into special consideration the age and character of the youth and his or her physical and mental condition and other circumstances when giving the sentence, which cannot in any event exceed 10 years. In the current case, as the law under which the girls was convicted set a minimum sentence of one year for the offence the judge gave that amount of imprisonment.
The Child Law has as its first aim “to implement the rights of the child recognized in the United Nations Convention on the Rights of the Child”. As the convention is one of only two rights treaties that Burma has joined, it would be reasonable to expect that its government do its best to fulfill the formal requirements of the treaty at least. And yet, even this little has not been done: the very first article of the convention sets the definition of a child as under 18. However, it has a caveat: that under a law applicable to the child, majority can be attained earlier, and it is presumably this that the government has relied on to establish the category of “youth”.
The Committee on the Rights of the Child, which monitors compliance with the convention, has not found that category acceptable. In its 2004 concluding observations on Burma’s second periodic report under the convention, stated that:
“The Committee notes that the 1993 Child Law makes a distinction between a child (up to the age of 16 years) and a youth (between 16 and 18 years) and is concerned that youth as defined by the Law do not have the same rights as children. The Committee is further concerned that the minimum age of criminal responsibility is set at 7 years of age, which is much too low, and that children between 16 and 18 years are treated as adults under the penal law of the State party…
“The Committee recommends that the State party recognize that all persons below the age of 18 are entitled to special protection measures and specific rights as enshrined in the Convention, and that it raise the minimum age for criminal responsibility to an internationally acceptable age…” (CRC/C/15/Add.237, paras 25-26)
The committee’s observations are plain and simple, yet since they were handed down five years ago, there is no tangible evidence of any effort from the government of Burma to amend the Child Law accordingly.
The Asian Human Rights Commission for its part wholeheartedly supports the recommendation of the Committee on the Rights of the Child concerning the need to amend the Child Law. It can see no reason that the government of Burma would have to continue with the pointless category of “youth” and nor any reason for it to further delay the amending of this law. Had the law been unequivocal about the age of a child as below 18, the three girls who are presently in jail for supposedly selling lottery tickets would probably never have had to go through their ordeal, an ordeal which will stay with them for the rest of their lives. Although it is too late for them, it is not too late for countless others. The AHRC therefore urges all concerned persons and groups in Burma and abroad to advocate widely and strongly for a change to this law at the nearest possible opportunity. Given the system of government in Burma, in which there is as yet no legislature to consider and debate amendments to laws, the change could be made today, tomorrow, or any day after that — so why not?
