Wednesday, October 26, 2016

Justice for (our) children

There are fundamental differences between expediency and fairness when it comes to the legal process of a country. They approximate to the difference between the individual and the larger community: ideally, a justice system must balance these two conflicting interests out in a way that ensures due process for the individual and security for society.

The problem is that they form part of a debate that remains irresolvable for the simple reason that they were always meant to oppose one another. It’s impossible after all to guarantee fair treatment for the individual, if he or she makes use of that to escape justice, and it’s impossible to guarantee security for a community if that involves impunity for the wielders and dispensers of justice in terms of arresting, assessing, and punishing alleged offenders.

Last week I dwelt on corporal punishment. Implied in my column was the assertion that a country’s education system reflects its legal system, and by the latter I don’t include the judiciary only: I include also the police, the armed forces, the extrajudicial arm created to ensure security for the country, and other dispensers of justice appointed formally or informally by the State. The argument basically therefore was this: if you drill the notion that “Might is Right” into the minds of the children by subjecting them to the cane, you’ll end up breeding two kinds of citizens: those who wield the baton and those who resist the baton. I’m not talking about Sri Lanka alone, of course.

This week I’ll be focusing on another more pertinent but no less related issue: justice for children. By that I include everything and anything, but for the purpose of specificity I shall focus on one key theme: what recourse do our children have to the legal system of this country? Or more to the point, is that recourse sufficient, and are the provisions contains in our statute books adequate to the task of recognising juvenile offenders as children first and criminals second?

Human rights and individual justice are not merely pretty words. History, it must be said, doesn’t paint a pretty picture when it comes to how they’ve been misused, contorted, and neglected. It’s difficult to even begin to imagine how and why the legal system and relevant authorities in a society conveniently ignore the rights of the child, but it has happened and is happening. Even now. For the purposes of this essay, I will focus on three broad areas, pertaining to our country: the statistics, the legal lacuna, and broad imperatives needed to set things right.

The United Nations Convention on the Rights of the Child is not immutable. It interweaves areas and pertinent issues connected to children. It’s hard to pinpoint which areas are more important and which areas are not, but for me, affirming rights just doesn’t make sense without providing for a proper, cohesive resort which the accused and the victim can use. In other words, the Convention recognises the need to establish Juvenile Courts, not just to try offenders but to ensure that victims of abuse, neglect, and other heinous crimes committed against them achieve equity.

A perusal of the document will convince anyone of how significant this all was to its drafters. Article 19 reflects on protecting children from violence perpetrated by their own parents or whoever appointed to be in (legal) charge of them (guardians, teachers, what-not). Article 37 reflects on shielding them from torture and negligence, in particular when it comes to their encounters with a society’s justice system.

While the Convention was drafted 20 years ago and while things have changed, nevertheless the text speaks for itself: they were not meant to be cast in stone but to be subjected to revision and assessment. That, I suspect, is what the drafters clearly intended with the concluding Article: only if the laws of a country surpass the Convention will they override it. Otherwise, the Convention takes precedence.

Given this context, how do the laws in Sri Lanka fare?

First and foremost, the statistics are sobering. A UNICEF report commissioned and released in 2013 reveals it all: from a total of about 70 cases collected from Batticoloa, Jaffna, Nuwara Eliya, Anuradhapura, Moneragela, Matara, and Kegalle (which generally rank low in educational, social, and economic indicators), it was concluded that statutory rape among girls was closely intertwined with the issue of early marriage (despite Sri Lanka’s generally liberal marriage culture, there still are instances of girls being married early on for fear that lack of educational qualifications would deprive them of opportunity for life).

And that’s just one figure. The records in 2012 show 758 children who were sexually molested and another 745 who were sexually abused. There were nine cases of incest by a family member, in addition 22 cases of child murders, 54 child abductions, 10 attempted murders and 247 cases of child assault. From 2011 to 2012, the National Child Protection Agency (NCPA) collected more than 20,000 complaints, an almost unprecedented amount until then.

Which brings one to another pertinent point: children can encounter the law in more ways than one. Broadly, they can be perpetrators. They can also be victims. And just as importantly, they can be witnesses to crimes perpetrated by others. With all this, one would expect authorities in the country to be more broadminded when it comes to handling such children. As the case stands, however, they have not.

That brings up the second broad area I identified above: the legal lacuna in Sri Lanka.

The problem becomes evident at once when one considers the tangle we’ve succumbed to when it comes to defining the age limits of a child (for legal purposes). A person is said to be criminally responsible only if he or she has attained or passed the age of 8, as set out by the Penal Code of 1883. A judge has the discretion to try a person as a criminal if he or she is between the ages of 8 and 12, if that judge can ascertain whether he or she has attained a sufficient level of maturity and understanding as to the consequences of his or her conduct. Those between 12 and 16 can be held as criminally accountable even if it that point is not conclusively ascertained, while those between 16 and 18 are regarded as adults. (However, no one below the age of 18 can be sentenced to death.)

This was compounded by another classification made by the Children and Young Persons Ordinance (or CYPO). According to the CYPO, for the purposes of juvenile justice (which was not recognised properly under the Penal Code), those considered as children are below the age of 14, and those considered as young persons are between the ages of 14 and 16.

A study by the Lawyers for Human Rights and Development (LHRD) in 1998 concluded that this double classification has led to much confusion and can, in the long run, explain the confused state of juvenile justice in the country. This has to do with the absence of proper mechanisms through which a child can claim justice: in particular, the lack of a cohesive system to which children can resort (either as offenders or as victims) when it comes to determining their cases. That helps surface probably the most important, if not deplorable, lacuna Sri Lanka faces at present: the absence of a proper network of Juvenile Courts.

But what exactly are Juvenile Courts? A brief look at history would suffice. From the socially conscious novels of Charles Dickens to the establishment of the first Children’s Courts (or in other words, special Courts for child offenders and victims), a key theme that runs through this discourse is that there’s always a rift between retributive and restorative justice. The former is aimed at punishment, the latter at rehabilitation. Going by Aristotle’s dictum on equality (comparing like with like, never with unlike), it seems manifestly self-evident that the more children are subjected to retribution, the more likely it is that they’ll relapse to old habits after their ordeal is done. There’s a term for this, by the way: recidivism.

The 20th century was more or less the Age of Enlightenment when it came to legal systems and processes. To flip through what happened, those processes finally and cohesively differentiated between adults and children, most starkly through the establishment of the first Juvenile Courts the civilised world ever saw. The tussle over juvenile delinquency was until then largely decided from the misconception that children were immature adults, who needed to be treated as elders to compel their growth and development.

The first Juvenile Court was established in 1899, one year before the dawn of the century, in Illinois and in arguably the country that was seeing industrialisation on a scale unparalleled by any other part of the world, the United States. The thinking behind it was simple: if you treat children as children, and if you want to ensure justice for them, then the method of attaining justice that they resort to must be amenable to their worldview and level of understanding.

While the first few decades of the century saw no real difference between Juvenile and normal Courts, nevertheless the former congealed into a class of their own, guided by one stark principle: for children to be guaranteed justice, either as offenders or as victims, there must not only be an exclusion of features all too common in other Courts (such as that perennial image of the bespectacled, old, and strict judge thrashing his gavel on the table), but also an inclusion of features that would directly appeal to a child, such as (inter alia) play areas and counsellors.

Sri Lanka doesn’t lack statutory provisions when it comes to juvenile justice. The Penal Code was enacted in 1883. About half a century later, the government enacted the Children and Young Persons Act (CYPO), alluded to before. Despite the confusion created by its definition of children and young persons, in later years it filled a much deplored gap by empowering Juvenile Courts (hereafter referred to as JC).

The problem, however, was that they would be created within a Magistrate’s Court: in other words, Magistrates would be empowered to act as Juvenile Court judges (Sections 2 and 3). As with all statutes, the CYPO defined what a JC was, what its jurisdiction entailed, and who would be competent to preside over children’s cases.

That was hardly adequate, for several reasons. First and foremost, the atmosphere of these Magistrate’s Courts (hereafter referred to as MC). Until about five years ago, out of the more than 70 MCs located throughout the country only one could be considered as a Children’s Court (hereafter referred to as CC). That was in Bambalapitiya. Even there, the Court was hardly adequate to suit an individual child’s level of understanding. More often than not, proceedings would be presided by the type of authority figures that Dickens wrote about, so much so that in the long run, the judges were perceived as variants of Mr Bumble and Mr and Mrs Soweberry, rather than the kindly, genial individuals they should have been.

This was not, of course, limited to child offenders: child victims faced even more issues. Among these, one can point at the impossible delays cases were subjected to (sometimes by more than 10 years), instances in which the police and other officials were privileged more than the child as witnesses, the fact that hearings were open to the public and hence were harrowing to that child, and the stigma attached to him or her when encountering the law.

And that’s just a foretaste to arguably the biggest problem: the fact that police officers have and continue to be known for their brutality towards young persons. As I implied in last week’s column, a quick reading of Basil Fernando’s Narrative of Justice in Sri Lanka would dispel the myth that children in this country are regarded as innocent cherubs: there have been instances when police authorities have mutilated, beaten, and done other unspeakable things against them for the simplest and most trivial offences. And it’s not just teenagers I’m talking about here: even children as young as 10 or 12 have had their bones and organs crushed, broken, and mutilated beyond repair by errant police officers.

In 2010, in reaction to calls made by concerned authorities on these counts, the first-ever JC was established in Battaramulla. Barely a year later, another such Court was built in Jaffna. The importance of these two, when it comes to the final reckoning, can’t be discounted. They were needed and not only to try out child offences, but also to ensure that cases involving children were processed and concluded quickly.

Five years after both Courts were established however, the general sentiment seems to be that more should be built, ideally in areas identified by that aforementioned UNICEF report but also extending to other districts.

And that sums up the third broad area I sought to delve into in this column: the imperatives needed for improvement. Personally I don’t think we are far behind when it comes to ensuring juvenile justice. It’s just that, thanks to that culture of complacency which has invaded our public sector, we are more satisfied in smirking at past accomplishments. We shouldn’t be.

The President correctly identified that the responsibility for the protection of children lay with the entire nation, or more pertinently with us. His message however was contorted to mean that that responsibility belonged to the private sphere, when clearly it should extend to the public sector.

There’s no point in coming up with documents, statistics, and statutes if they are not worked on. And there’s no point correcting our young(er) generation if you end up instilling in them either a blind love or a bitter hatred against authority, both being rooted in that aforementioned fear of officialdom inculcated in them at an early age (thanks in part to corporal punishment, but also to early encounters with the law).

Briefly put, if we don’t look after our kids, no one will. Period.

Uditha Devapriya is a freelance writer who can be reached at

Written for: Ceylon Today, October 26 2016