By Dr.Thushara Wickramanayake
“History will judge us by the difference we make in the everyday lives of children” – Nelson Mandela
Three decades after ratifying the UN Convention of the Rights of the Child (UNCRC), the treaty signed by the largest number of countries in the world, Sri Lanka’s rhetorical promises to protect and promote the rights of children is a crystal-clear reflection of the history of the nation that has failed many generations. During the recent uprising ‘Aragalaya’, the citizens demanded “a better country for our children” but the slogan failed to insist on “better, unscarred children for our country”, contributing to the apathy of public representatives to deliver palpable, progressive changes to the lives of the most vulnerable members of society. We, the citizenry have evolved Sri Lanka to an appalling State of violation of human rights of the true beneficiaries of the future, our children.
The 42nd session of the fourth cycle of the UNHRC Universal Periodic Review (UPR) of Sri Lanka was concluded from 1st to 3rd February 2023 in Geneva. Stop Child Cruelty Trust (SCC) was the only Civil Society Organization representing 5.2 million children of the Paradise Island at the UPR Pre-Sessions in December 2022.
CONTEXT AND JUSTIFICATION
From July 2020 to July 2022 sixteen children were physically/sexually abused or neglected and murdered; yet Government of Sri Lanka (GOSL) has done nothing effective to ensure the safety and welfare of 25% of the population of citizens, approximately 5.2 million children. This is an unprecedented level of unnatural deaths of children in a country without armed conflict, famine, natural disaster or disease.
During the third UPR Working Group in 2018, Sri Lanka accepted recommendations calling for adoption of measures to continue its efforts for the protection of children, prohibit corporal punishment of all children in all settings, including at home and adopt special measures to ensure that persons in vulnerable situations, such as children have meaningful access to the justice system and other complaint procedure.
FAILURE TO IMPLEMENT NATIONAL HUMAN RIGHTS ACTION PLANS
At the conclusion of the third UPR review (2018) of Sri Lanka, High Commissioner for Human Rights welcomed Sri Lanka’s adoption of the National Human Rights Action Plan for 2017-2021 and encouraged Sri Lanka to achieve concrete results. In endorsing rights of children, the High Commissioner recommended to put an end to corporal punishment in all settings and take measures to promote positive non-violent forms of discipline and end child labour. However, the emphasis to protect and promote the rights of children has been diminished in the National Action Plan by the rising number of deaths resulting from child abuse.
FAILURE TO END CORPORAL PUNISHMENT IN SCHOOLS AND HOMES
On 29 April 2016, the Ministry of Education issued Circular Number 12/2016, ‘Maintaining Discipline in Schools’ recommending not to use corporal punishment in schools. The number of cases reported annually to the National Child Protection Authority shows that Cruelty to Children aka physical abuse is the most common form of child abuse from 2010 to 2021. Of the 3892 total number of cases reported in 2010, 905 cases were cruelty; in 2021 the numbers were 11,187 and 2741 respectively.In 2022 the numbers were 10,497 and 2096.
FAILURE TO PROTECT HUMAN RIGHTS OF CHILDREN ATTENDING INTERNATIONAL SCHOOLS
The Ministry of Education Circular No 12/2016, ’Maintaining Discipline in Schools’, is valid only for Government schools. The circular has never been implemented in International Schools. In 2019 the Minister of Education, Kariyawasam stated there were around 300 International schools with over 100,000 or more students. As there is no accurate monitoring process these figures are believed to be much higher.
Because the students attending International Schools are not subjected to the Government regulatory processes, children are exposed to corporal punishment and other forms of abuse. The discriminatory failure to protect all children equally was exposed in a landmark case of an eleven-year-old Sri Lankan girl student who was subjected to corporal punishment at Gateway College, Negombo in January 2018. The Human Rights Commission of Sri Lanka (HRCSL) initially accepted the complaint but dropped the case in April 2018. When the Supreme Court of Sri Lanka did not grant leave to proceed with FR petition, the child victim filed a communication submitted for consideration under the optional protocol to the International Covenant on Civil and Political Rights (ICCPR) before the UN Human Rights Committee in 2019. The communication was registered at UN Committee in 2020, Case reference No 3793/2020 and State party was due to submit its response by 21 March 2021. This case is believed to be the world’s first case filed by an eleven-year-old against corporal punishment at UN Committee. The State party has defaulted twice at both deadlines. The second deadline was 6th April 2023. The case is under review at Office of the High Commission of Human Rights, Geneva.
FAILURE TO RECOGNISE THE CHILD AS A RIGHTS HOLDER
The rights of the child are upheld in life and death. The global principle ‘in the best interest of the child’ is active posthumously. On 26 March 2020, former President Gotabaya Rajapaksa granted a presidential pardon to Sergeant Sunil Rathnayaka, a former soldier, convicted and sentenced to death by a five-member bench of the Supreme Court for the murder of eight unarmed civilians. This was condemned by many Human Rights organizations globally.
In August 2020, President Rajapaksa abolished the Cabinet Level Ministry for Women and Children’s Affairs downgrading it to a State Ministry Level with severe restrictions on financial and resource allocation from the National Budget. SCC handed over two public petitions with over 5000 signatures each to Presidents Sirisena in 2018 and Rajapaksa in 2021. Another petition is currently active, ‘End Violence Against Children in Sri Lanka’ to President Wickremesinghe.
‘Child Protection and Justice Bill’ is not concluded and Children and Young Persons Ordinance is not repealed as proposed.
Child Protection and Justice Bill is to replace all other contradicting laws. Children and Young Persons Ordinance (CYPO) is the set of laws that the judiciary uses when a child comes into contact with the law as the accused.
CYPO amendments proposed included to change the age definition to 18 years to synchronize with other laws and to repeal 71(6). NPEVAC was the national program launched in 2017 when SL became the first South Asian country committed to SDG 16.2, end violence against children. This just halted no sooner it started and nothing has progressed
In the CYPO the child is identified as below 16 years but the international definition that SL accepted is below 18 years. Section 71(6) of the CYPO states if a child is physically punished by a carer/guardian (these children are held in State institutional care centres) it is not against the law. CYPO amendments proposed included to change the age definition to 18 years to synchronize with other laws and to repeal 71(6). NPEVAC was the national program launched in 2017 when SL became the first South Asian country committed to SDG 16.2, end violence against children. This just halted no sooner it started and nothing has progressed.
FAILURE TO IMPLEMENT THE JUVENILE JUSTICE SYSTEM
On 12 February 2021, Case No SC/FR/97/2017, the Supreme Court of Sri Lanka gave a landmark decision to ban corporal punishment of children and recommended amendments to the Penal Code Section 341(i). “if a schoolmaster, in the reasonable exercise of his discretion as master, flogs one of his scholars does not use criminal force…”and Section 82 ,“nothing which is done in good faith for the benefit of a person under twelve years of age, is an offence by reason of any harm …”. However, none of these have been repealed.
It is estimated that there are over 20,000 cases of child abuse backlogged for a decade at the Attorney General’s Department.
FAILURE OF THE POLICE AND PROBATION AND CHILDCARE DEPARTMENT TO PROTECT CHILDREN
In a landmark verdict given by the Supreme Court of Sri Lanka, Case No SC (FR) No 677/2012 in June 2019, a Senior Female Police Officer, Waruni Bogahawatta of Matara Police Station was found guilty of violation of fundamental rights by unlawfully taking a child into custody and detention. In this connection, the SC recommended even a 20 point guideline which law enforcement authorities must adhere to. These are available on public domain as well as the SCC websitehttps://stopchildcruelty.com/media/doc/1591786686.pdf
However, she was shockingly reinstated at Matara Police Station in her previous rank as OIC Women’s and Children’s Bureau within one year. Mass child abuse by officers of the Probation and Child Care Department has become malignant.
Probation Officer, Pradeep was charged with assaulting three children at ‘Kanchadewa Home’, a Government home for disabled children in Southern Province in 2020. Subsequent to him being released on bail from remand, the Department gave him a “punishment transfer” to ‘Halpathota Detention Home’ in Baddegama, Southern Province to work directly with children who are in care due to family circumstances. These children have not been accused of any crimes. On 10 February 2022, Pradeep was charged with eight cases of grievous sexual abuse, one case of sexual assault, and one case of assault; victims are all boys aged under 15 years. It is the largest mass child abuse case that has occurred in a State Institution in the history of the Probation Services/child care in Sri Lanka.
Each individual ‘Government Servant’ who is publicly funded to protect and promote the rights of children is responsible and accountable for the abysmal state of morality and absolute anarchy prevailing in the bankrupt wannabe wonder of Asia!
“A country that invests in its children is one that has a future; a better one”
(The writer is the Chairperson of Stop Child Cruelty Trust)