'Please sir, we want some more'

By Kishali Pinto Jayawardena

• Judgment 1
• Judgment 2

Ask any true blooded child rights activist in Sri Lanka what his or her Achilles Heel would be and the answer in nine times out of ten would be the same: "A compromising legal framework and enforcement machinery that refuses to take the rights of the child seriously."

True to form, ratification of the Convention of the Rights of the Child by the Sri Lankan state in 1991 had not noticeably improved the situation, such action as was taken being confined to lofty promises in international fora. It was, in actual fact, only in 1995 that 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.

These changes were, of course, too little, too late. The statement of then DIG (Crimes and Public Order) Police Headquarters, J.D.M. Ariyasinghe at a national conference on child rights some years before, that " ...the problems in our country regarding behaviour of children and young persons are rapidly assuming such serious proportions that the existing machinery, legal, procedural, facilities, personnel and budget cannot make any impact. Serious study of all aspects of the problem by a committee of experts and concerned organizations is critically important," remained a dire warning of a situation spiraling out of control. And despite Sri Lanka being severely reprimanded by the UN based Committee on the Rights of the Child (CRC) in 1995 during consideration of her first country report, the lack of effective change continued to be painfully evident.

It was in 1998 that the impetus for reform of the rights of the child picked up again when changes were made to the Criminal Procedure Code, the Judicature Act and the Penal Code this month. Amendments to the penal law 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 grave sexual abuse of a child was rendered punishable irrespective of whether there is 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 meanwhile laid down special procedures in respect of persons arrested for child abuse and provided for the abused child to be kept in a safe place for care and protection until trial. In general, the amendments marked some welcome changes in laws relating to the protection of the abused and the exploited child.

Again, however, like Oliver Twist in his most classical manner, child rights activists are calling out for more. One significant area of concern remains the administration of juvenile justice with references being made to a specific comment by the CRC in 1995 that the Sri Lankan legal provisions relating to juvenile justice were not in line with the principles found in the Convention. Indeed the trauma that children have to undergo in courts, when they are brought before judicial officers hampered by an over load of work, lack of resources and insufficient training in juvenile justice had long been a matter of common knowledge.

One paragraph in the Samaraweera Report on The Abused Child and the Legal Process of Sri Lanka, sums up the situation in a particularly heartrending manner. The author, legal academic Professor Vijaya Samaraweera, describes a proceeding in juvenile justice thus;

" L claimed to have witnessed the alleged rape of his younger sister by 5 older schoolmates in the school hall before the classes began, and was being cross examined on his testimony by one of the defence attorneys during the course of the non summary proceedings being held in the chamber of the Magistrate.In the Chamber were the five accused, two defence lawyers (the proceedings began with five defence lawyers but the number was quickly reduced to two because the other three had cases pending that day at the main court room).L had come with his mother from Akurana;this was his third visit to the Court as a witness. L is 14 years old now and his sister 13 years. The alleged incident had occurred two years earlier.Arraigned behind L, with barely two feet separating them were the five accused, all aged 17 years now. L was patently nervous, but he was not put at ease by the Magistrate nor was there any effort made by the Magistrate to caution the cross examination techniques and style of the defence lawyer, a technique and style which would have been perfectly proper if the witness was an adult. Apart from the clever cross-examination of the lawyer, it was obvious that L had difficulty in remembering the questions, because the lawyer had to continuously pause to permit the typist to take them down."

That changes should be made to court procedures in this respect and, in fact, that the entire system of Juvenile Justice Administration prevailing in Sri Lanka should be reviewed had been repeatedly acknowledged. It had been stressed that without these changes, whatever reform which takes place in laws relating to children would be meaningless, limited to mere formal excellence.

Could the 1998 impetus on child rights reform be extended to cover these aspects as well ? Recent proposals put forward by the Law Commission in a report by its Sub Committee on Juvenile Justice Administration which was formally adopted by the Commission last week, point to a positive answer. The sub committee comprised Law Commissioners Supreme Court Justice Shirani Bandaranayake, President's Counsel Ranjith Abeysuriya, attorneys at law Dr J. de Almeida Gunaratne and Ruana Rajepakse with assistant secretaries of the Law Commission, Anande Amaraweera and Himali Urugodawatte. Their report which places special emphasis on the protection of the dignity and personality of the child at all stages of the criminal process, makes interesting reading. Eight areas have been selected for special mention, among them the ensuring of the segregation of juveniles from adult detainees, the jurisdiction of juvenile courts and the procedures to be adopted by them and legal representation for juveniles involved in the legal process. A Code of Juvenile Justice Procedure that would incorporate all the proposed changes has also been proposed.

At the outset, it has been pointed out that in line with the Children's Charter, all persons under 18 should be referred to as juveniles and that this should again be divided into children (aged up to 14 years) and young persons( aged between 14 and 18) for the purposes of the Children and Young Persons Ordinance (CYPO) which treats these two groups differently.

One important suggestion made by them relates to the basis on which a "young person" as opposed to a "child" could be imprisoned. The Sub Committee notes past instances where juveniles have been made to languish in prison, a case in point being in 1985 when a fifteen year old boy had been sentenced to 2 1/ 2 years imprisonment in default of the payment of a sum of Rs 700/= for possession of a quantity of unlawfully manufactured liquor. In this case, the Court of Appeal found that the fine itself was excessive and that the accused was a first offender. The magistrate who had sentenced the unfortunate juvenile had not properly considered whether he was of such an unruly character or was so depraved of character that he could not be detained in a remand home or certified school, instead of in a prison for adults. The tragedy in this particular case was that the accused had already spent one month and 18 days in prison before the appeal was allowed and the sentence set aside. In order to avoid a re-occurrence of these incidents, the Sub Committee has pointed out that the CYPO be suitably amended so that a clear responsibility would lie on the presiding magistrate to satisfy himself/herself that the offender is a young person and not a child, and that the nature of the case warrants imprisonment.

Meanwhile, it is stressed that the ongoing practice of herding juvenile offenders with adult prisoners whether in remand or after conviction, should cease. Specific evils of this practice are pointed out, older prisoners have easy access to children and young persons for the purposes of sexual abuse, not to mention the obvious trauma of association with hardened criminals. The fact remains that there is still no remand home in Sri Lanka reserved exclusively for the detention of young persons awaiting trial. Severe strictures then follow on the conditions of places where juvenile detainees are presently housed. The conditions have been condemned as unsatisfactory and unhygienic, amounting in some cases, not only to violation of Sri Lanka's international obligations but also cruel inhuman and degrading treatment prohibited by Article 11 of the Constitution. The proposal made in this respect is that if the State cannot detain juveniles with the minimum standards laid down, then the one remedy would be to detain only such a number as can be accommodated satisfactorily, with the rest being dealt with in alternative ways, such as by probation orders and community service orders.

Going on to deal with the psychological trauma that a juvenile is subject to in court, one predictable suggestion that has been made is that all judicial officers be given training in juvenile justice as part of their judicial training.

Interestingly, it has also been pointed out that legal representation ought to be ensured to children who appear in court, either as alleged offenders or as mere witnesses. Present facilities have been categorized as ad hoc, it is recommended that the Bar Association set up a mechanism to provide representation for juveniles in a manner similar to the current mechanism dealing with fundamental rights cases.

Like the famed distance between the cup and the lip, the Law Commission proposals still have a long way to go before they are passed as laws. Again, their enshrining in the formal laws of the country does not necessarily ensure effective change, as bitter past experience has shown. Then, as now and most inevitably in the future, what is crucial is a co-ordinated approach by legislative, administrative and judicial agencies responsible for the administration of juvenile justice. The very points made in the Law Commission report, specially with regard to conditions of detention, have been made time and time again by the numerous commissions and committees appointed to look into adult prisoner welfare. Not much action has been taken on them. Whether this dismal status quo will change, depends ultimately on a legal and political will that is not content with mere formal laws. We can, of course, continue to hope.

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