Focus on Rights

Still victimising innocence
In what are the most significant observations by an international rights monitoring body in recent times, the series of short and sharp comments on Sri Lanka's state of child rights, made early this month by the Geneva based Committee on the Rights of the Child should be carefully scrutinized by policy makers and activists in this country for several reasons.

The Committee, an elected body of ten experts appointed under the Convention on the Rights of the Child, was considering Sri Lanka's second periodic report in terms of reporting procedures mandated by the Convention.

Its observations proceed from a point of general concern that is disturbingly not confined to child rights alone and relates to the proliferation of domestic monitoring bodies, lack of effective coordination between them and scarcity of resources to those bodies that really matter.

In this specific instance, the establishment of mechanisms such as the National Monitoring Committee (NMC) and the National Child Protection Authority (NCPA), and their respective monitoring and child protection committees at provincial and district level, are welcomed.

However, the Committee interrogates the question whether these bodies and others like the Department for Probation and Child Care Services effectively coordinate their work and whether their roles are clearly defined?

Equally, the Committee has been concerned about the lack of human and material resources to the National Human Rights Commission. Its recommendations clearly address these concerns, suggesting that a bureau for children's rights be established within the Commission in order to ensure its accessibility to complaints by children, in particular those affected by conflict.

The substantive aspects of the Committee's recommendations are even more compelling, specifically with regard to corporal punishment and the administration of juvenile justice, both issues raised previously by the Committee when considering Sri Lanka's initial report under the Convention.

The Committee makes a peremptory recommendation that Sri Lanka repeal the Corporal Punishment Ordinance of 1889 and amend the Education Ordinance of 1939, to prohibit all forms of corporal punishment. The State is advised meanwhile to undertake well targeted public awareness campaigns on the negative impact of corporal punishment and provide teacher training on non-violent forms of discipline as an alternative to corporal punishment.

As far as juvenile justice is concerned, it is recommended that the Children and Young Persons Ordinance (1939) be amended to raise the minimum age of criminal responsibility to an internationally acceptable level, ensuring that all offenders under 18 are treated as children.

This is tied up with a previous suggestion that Sri Lanka enact, as a matter of priority, a clear legal definition of the child, reviewing existing age limits for various areas including child labour and the penal code provisions on child sexual abuse, in view of the fact that the various legal minimum ages are discriminatory or too low.

It is also suggested that a system of juvenile courts be put into place across the country, ensuring that deprivation of liberty of children is used only as a last resort and then also, only for the shortest appropriate period.

Interestingly, the Committee has approved proposals made by the Law Commission of Sri Lanka in this respect, including particularly those regarding access to legal assistance, training of professionals working with children, separation of children in conflict with the law from adults at all stages of the legal process and the development of alternative non-custodial methods of rehabilitation.

The most disappointing aspects of the Committee's observations however, are in regard to children in armed conflict. Sri Lanka had once taken the stand that while the Government was adhering to international standards in this respect, the most persistent violator was the LTTE.

Indeed, the Government had pushed for punitive action against LTTE, arguing that Articles 4 and 6 of the Optional Protocol on children in armed conflict to the Convention on the Rights of the Child (which we ratified in September 2000), collectively obliged. States parties to introduce the necessary legislative and other measures to prohibit and criminalize the practice of recruitment of children by armed groups that are non-State actors. Thus, the highly ambitious appeal that the LTTE be declared of committing a 'war crime' by their continued recruitment and employment of child soldiers.

While it was not to be expected that the Committee would adopt strongly definitive action such as this, it posits itself at a point far removed from practical realities when it calls upon the state party not only to prioritise the demobilisation, reintegration and rehabilitation of child soldiers but also to 'ensure that all armed groups reintegrated into the national armed forces adhere to the minimum age of recruitment of 18 years.'

However, the Committee has requested for additional information in this regard to be included in its initial report under the Optional Protocol. The June observations highlight another serious problem. The extremely flamboyant ratification of major international human rights treaties by Sri Lanka in the past several decades had a particular logic to it, in the face of what was by most counts, an appalling record of rights abuse.

Successive governments in this country agreed to abide by conditions imposed by these rights treaties, particularly in respect of civil and political rights, social and economic rights, children's rights and women's rights.

However, this attempt to project a rights friendly face came with a price. The treaties thus ratified did not merely stipulate a cosmetic adherence to standards of behaviour recognised as being common to the community of nations but prescribed rigorous compliance to these standards and procedures of monitoring, including most importantly, a duty to submit country reports within a particular time period.

Regardless, our adherence to these reporting procedures had become increasingly lackadaisical, attracting sharp criticism by monitoring bodies set up under the treaties. The latest criticism comes from the Committee on the Rights of the Child this month.

Sri Lanka is mandated to submit a country report under Article 44 of the Convention every five years following the initial report. In view of considerable delay in this process, the Committee has, in fact, invited Sri Lanka to submit a consolidated third and fourth country report in 2008 and called for regular and timely reporting.

A parallel concern relates to un-addressed recommendations in response to Sri Lanka's initial report, particularly with regard to the harmonisation of legislation, coordination of the implementation of the Convention and juvenile justice, which the Committee strongly reiterates in this month's observations.

In sum, the Committee makes the point that children in Sri Lanka have the right that the body in charge of regularly examining the progress made in the implementation of their rights, does have the opportunity to do so. This is something that we should keep well in mind for future reporting under international treaties - not only the Convention on the Rights of the Child - once we have taken a considered decision to submit ourselves to their reach.

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