Friday, July 13, 2012

The law is confused

A child is like a doll and is incapable of crime, so says, provisions in the books of law, but in the case of two minors who burnt down a hut, all loop holes based on this provision failed to save their legal guardians from the lawfully-ordered compensation payments.
The legal guardian of the two minors who set fire to a hut in Jungshina, Thimphu on February 17 appeared in Thimphu District Court for their final hearing on July 4.
The owner of the house who lost his home and his belongings for the fire will be compensated with Nu 18,000 while the tenant will receive Nu 9,000. The compensation will be paid by the parents of the two minor defendants within one month from the day of their final hearing.
Though circumstantial evidence of the crime committed by the two defendants is beyond reasonable doubt, the defendants are not liable to pay compensation in accordance to the principle of Doli Incapax which explains that a child is like a doll and is not capable of punishment to any offences committed.
Section 9 of Penal Code (Amendment) Act 2011 states that “if the defendant is a child of 12 years and below, he/she shall not be held liable for any offence committed by him/her.”
Section 9 of the same law book, ‘the Penal Code (Amendment) Act 2011’ states that a child can never be found guilty even if he/she has committed a heinous crime and the law does not allow them to appear in the court.
And yet, at the same time, there are provisions by which compensation becomes mandatory.
This confusion bears argument mainly because, of section 12 of Penal Code (Amendment) Act 2011 and section 111 of The Child Care and Protection Act 2011  which contradicts the principle of Doli Incapax.
The two sections state that “if a child is found guilty of an offence for which damages are appropriate, the court may order the parents or legal guardian of the child in conflict with law to pay the damages”.
The law is not clear whether the section 12 is applicable to section 9 or if it is only applicable to section 10 which states “if the defendant is a child above 12 years, the court shall sentence the child in conflict with the law to a minimum of half of the sentence prescribed for the offence”.
If compensated, the child is convicted and if not the victims are victimized wherein the court has to interpret the applicability and meaning of section 9, 10 and 12 of Penal Code (Amendment) Act 2011 and section 111 of The Child Care and Protection Act 2011.
In  the current case, the court ordered the parents to compensate the victims on reasonable and appropriate damages  caused,  since the mother of the two defendants agreed to compensate and also the country do not have separate fund called the ‘Solatium Fund’ like other countries to compensate in such cases.
The defendants are given 10 days to appeal to the High Court if they are not content with the final judgment of the District court but the victims are forced to be content when the law does not allow them.
In cases, where a child is in conflict with the law, the case should not be forwarded to the court according to the law, but in this case a victim pressurized the Royal Bhutan Police to forward the case to the court (in hope for compensation).
This is the first case of a child defendant forwarded to the court.