Focus on Rights

Protect the children of the tsunami
For many years, Sri Lanka has had a compromised legal framework and enforcement machinery that refused to take the rights of the child seriously. Ratification of the Convention of the Rights of the Child by the Sri Lankan state in 1991 did not noticeably improve the situation with its visible effect being confined only to pronouncements in international fora.

In 1995, significant changes were made to the penal laws of the country dealing with sexual exploitation of children, including rape and the homosexual exploitation of children including pornography. In 1998, another set of amendments to the Penal Code provided for two new criminal offences of causing or procuring a child to beg and the hiring or employing of children to act as procurers for illicit sexual intercourse. The law relating to procurement for sexual intercourse was strengthened and the grave sexual abuse of a child was rendered punishable irrespective of whether there is consent or no consent. An amendment that a developer of films is required to inform the police if he is asked to develop indecent or obscene films was however more controversial, skeptics pointing to this being an over broad stipulation.

Changes to the Criminal Procedure Code stipulated special procedures in respect of persons arrested for child abuse who could be kept in police custody on a court order for a period up to seventy two hours as contrasted to the normal twenty four hours limit. Theoretically, it was mandated that the abused child should be kept in a safe place for care and protection until trial. Butressing these provisions, amendment of the Evidence Ordinance in 1999 ensured that video taped evidence of child victims could be admitted in court. In general, the amendments marked some welcome changes in laws relating to the protection of the abused and the exploited child. These legal changes were supplemented by a National Child Protection Authority but the sum total of all this was only a miniscule improvement.

It was inevitable therefore that a system that was struggling to cope with a normal status quo would prove to be stupendously ill equipped to deal with the multiple traumas of the thousands of children orphaned by the tsunami and in regard to whom we hear heartrending stories of abuse. A recent AFP report cites the case of one seventeen year old girl who had escaped the tsunami and was lying in a relief camp when her sixty year old grandfather had attempted to rape her. It was only due to the intervention of another inmate of the refugee camp that she was saved. Later, both this girl and her twelve year old sister were handed over to child welfare authorities in the South while her grandfather was taken to the police. The fate of these children as they are swallowed up in the labyrinth of the government child welfare machinery, though saved from immediate physical harm, is heartrending.

Other cases of child sexual abuse in relief centers have also predominated as have stories of the rape of women survivors. In the relief camps, women apparently fear to go about except in groups while others have left the camps due to fear of physical abuse.

Urgent action is needed to correct this situation. As the State itself had conceded before the UN Human Rights Committee (UNHRC) last year while reporting to the Committee during consideration of Sri Lanka's fourth and fifth periodic reports under the International Covenant on Civil and Political Rights (ICCPR), the law should be further reformed to deal with those who solicit children for sexual abuse, prevent the exposure of children to pornography including through the internet, tighten the mechanisms in regard to the protection of children from domestic violence. The Palermo Protocol on Human Trafficking, specially of women and children as well as the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution both of which the country is bound by in international law should be given full effect to in the domestic legal sphere. Ideally, Sri Lankan courts should also be conferred extra-territorial jurisdiction so that law enforcement authorities could deal more effectively with paedophiles and traffickers.

While legal changes are obviously necessary, it is no less imperative that these changes should be supplemented by practical monitoring. The NCPA and the National Human Rights Commission (NHRC) should collaborate in putting into place investigative teams with the mandate of visiting camps and relief centers and engage in proactive protection of the vulnerable rather than merely waiting till those who are abused come to them. Sri Lanka still lacks effective child sensitive mechanisms of reporting, monitoring and filing of complaints. No substantive protection mechanism exists for the abused child other than institutionalization.

In the past, the Committee on the Rights of the Child had also raised serious questions whether the NCPA and the Department for Probation and Child Care Services are effectively coordinating their work and whether their roles are clearly defined. In parallel questioning, the CRC as well as the UNHRC has been concerned about the lack of human and material resources to these bodies.

The Government should use the manifold aid assistance coming its way to set up bureaus for the protection of children's rights in all areas affected by the tsunami. It should also create and support reporting and monitoring mechanisms such as free hot lines, information and assistance centers, national and local ombudsmen for children, create and support non-custodial rehabilitation and protection services, train specialized police and justice professionals to receive complaints and testimonials from children and undertake adequate action against perpetrators, taking into account the best interests of the child (notably when perpetrators are close family members, etc.)

In addition, the June 2003 public policy put into effect by the Government to combat trafficking in children for exploitative employment should be better monitored for practical effect. Currently though a national plan of action (with four components comprising legal reform and law enforcement, institutional strengthening and research, rescue, rehabilitation and re-integration and prevention), is reportedly before government agencies for implementation, its impact appears to be limited.

Obviously given the magnitude of the disaster that took place in Sri Lanka on the 26th, actually effecting these changes will take time. Planning towards this at this stage itself is however, a priority of the highest order.

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