3. State Party Reports
II. GENERAL PRINCIPLES
Definition of the child
12. The definition of "the child" is vitally important for providing the necessary protection to children and for safeguarding the rights specific to children. There is however no single legal definition of the state of being a child under Sri Lankan law. The Children's Charter has defined the child as a person under 18 years of age. It should be noted however that the Children's Charter to which reference is made throughout the text is not legally enforceable or binding. It was the national document produced by Government to declare its commitment to the United Nations Convention on the Rights of the Child. Despite its declaratory character, it will also operate as a clear frame of reference for evaluating both the existing legislation and practices as well as new developments.
13. The age below the legal age of majority can be taken as one criterion for the definition of childhood. The age of majority is the age at which a person moves from a condition of dependency to one in which he or she can independently exercise his or her full rights as a citizen, and at the same time assume the responsibilities of a citizen. Such rights and responsibilities include the political rights to vote, to stand for elections, become liable for payment of tax or obtain a certificate of competence to drive a car. For the purpose of the administration of justice the Children and Young Persons Ordinance (1939) of Sri Lanka defines a "child" as a person under the age of 14 and "a young person" as a person between 14 and 16 years. The way in which this law operates in the interests of children is discussed later in this chapter.
14. There are different age limits prescribed by the law in regard to the legality of a number of activities and transactions to which persons below the age of majority become parties. These include the age of employment in general, the age of employment at night, the age of marriage, the age of criminal responsibility. These age limits have both a protective as well as a restrictive function. They protect children from being compelled to undertake adult responsibilities before they are able to do so, as in the case of employment and marriage; at the same time they restrict children from performing certain tasks for which they are not ready in terms of physical and intellectual maturity. These age limits therefore protect the right of children to their childhood; but in doing so they must simultaneously deny them certain rights which are enjoyed in adulthood. Table 3 below gives some of the age limits recognized under Sri Lankan legislation for different purposes.
15. The age of majority is 18 years in terms of the Age of Majority Ordinance (1865) as amended by the Age of Majority (amendment) Act No. 17 of 1989. The amending Act also states that its provisions shall not be construed as affecting the right of any person under 21 years of age to receive any benefit he is entitled to under any other law. The Age of Majority Ordinance also recognizes the right of a person attaining majority before he reaches 18 years. Such a situation arises by the grant of letters of venia aetatis at marriage or emancipation.
16. The Sri Lankan general law is based on English law and Roman Dutch Law. There are also several Personal Laws which are based on local and indigenous customs and rites of religion. There are instances where for certain purposes the age limits vary according to the law governing a person. The three main systems of Personal Laws are the Kandyan Law, the Thesawalamai and the Muslim Law.
17. The Kandyan Law applies to the up-country Sinhalese who occupied the central regions of Sri Lanka which remained independent until the British conquered those regions in 1815. The Thesawalamai applies to Tamils who are inhabitants of the province of Jaffna in northern Sri Lanka. The Muslim Law applies to all persons who profess Islam.
III. CIVIL RIGHTS AND FREEDOMS
25. Chapter 3 of the Sri Lankan Constitution embodies provisions relating to fundamental rights. The fundamental rights defined in the chapter fall into two categories. One category of right is universal in character and applies to every person and the other category of right applies to every citizen. Articles 14, 19 and 37 of the Convention on the Rights of the Child fall into the first category which is protected by the Constitution.
26. Article 10 of the Constitution recognizes as a fundamental right of every person freedom of thought, conscience and religion including the right to adopt a religion or belief of his choice. This is a justiciable fundamental right. Article 11 of the Constitution recognizes as a fundamental right that no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. This is also a justiciable fundamental right.
27. Article 19 of the Convention, however, is more inclusive in scope in defining the State's responsibility for protecting the child. It includes all forms of physical and mental violence, maltreatment and abuse. Some of the patterns of child rearing and school discipline that might still be observed among some parents or teachers may well come within the ambit of this article. There have been instances of maltreatment of children who are employed as servants and several have come before courts. The implementation of the article therefore demands a searching evaluation of attitudes, practices and values in various situations in which adults have control and authority over children. Sexual abuse of children is examined further in the section dealing with child prostitution.
VII. SPECIAL SITUATIONS
Children in conflict with the law
148. The law relating to the administration of juvenile justice is contained primarily in the Children and Young Persons Ordinance enacted in 1939. This Ordinance applies to persons under the age of 16 years.
149. Provision for the detention of youthful offenders (those between 16 and 22) is found in the Youthful Offenders (Training Schools) Ordinance also enacted in 1939. Probation of offenders, including juvenile offenders, is governed by the Probation of Offenders Ordinance of 1944. The Penal Code, Code of Criminal Procedure Act and the Prisons Ordinance also contain some special provisions applicable to juvenile offenders.
150. The Children and Young Person's Ordinance defines a "child" as a person under the age of 14 years and a "young person" as a person who has attained the age of 14 years and is under the age of 16 years. This Ordinance provides for the establishment of juvenile courts for the hearing of any charge against a child or young person, except where the alleged offence is murder, culpable homicide not amounting to murder, attempt to murder, attempt to commit culpable homicide or robbery. Juvenile Courts, presided over by a Children's Magistrate, are required to sit in a different place from where other courts sit. The Children's Magistrate is required to explain the substance of the alleged offence in simple language. Where the offence is an indictable one, the offender is given the option of being tried by the Juvenile Court or a higher court. In deciding how to deal with an offender found guilty, the Juvenile Court is required to take into consideration the available information and circumstances of the offender, including a report of a probation officer.
151. Children and young persons are required to be detained separately from adult offenders. Young suspects who are not granted bail are committed to remand homes or to the care and custody of a fit person. They cannot be committed to a prison. Parents of juvenile offenders are required, wherever possible, to attend all court proceedings relating to their children. Prior to producing a juvenile offender in court, the police are required to notify a probation officer who shall make necessary investigations regarding the home surroundings, school record, health and character of the offender and make such information available to court.
152. The Ordinance provides for the establishment of remand homes, certified schools and approved homes for the detention of persons coming within its purview. The ordinance prohibits the imprisonment of children. Young persons may be committed to prison only if the court certifies that they are of such unruly or depraved character that they cannot be detained in a remand home or a certified school.
153. The sentencing options available for young offenders include:
154. The Prison Ordinance provides for the separation of juvenile prisoners from adult prisoners.
155. The existing law pertaining to children in conflict with the law is in keeping with the articles of the Convention. In practice, however, there are several gaps and deficiencies in observance of the law and enforcement. The provision that special Juvenile Courts deal with offences of children and young persons has not been given effect to on a countrywide basis. There is only one Juvenile Court and that is in Colombo. The delays that occur frequently in the adjudication of cases have adverse consequences on juvenile offenders, particularly when they have not been released on bail and are sent to remand homes pending trial. Interruptions in their normal schooling will then be a serious consequence of the law's delays when dealing with juvenile offenders. The separation of juveniles from adults during remand is also not always strictly observed. Juveniles are sometimes escorted with adults who are remanded. Another undesirable practice which needs urgent correction is that of placing children who are taken into police custody for reasons other than criminal offences together with those who have committed offences. The Government has appointed a Technical Committee on Juvenile Delinquency which has completed its work. It has addressed the shortcomings and problems that have been discussed above and has submitted its recommendations. The Government is preparing the necessary legislation.
Rehabilitation of juvenile offenders
156. The rehabilitation of juvenile offenders on probation or in custodial care is administered by the Department of Probation and Child Care. Juvenile Offenders have been rehabilitated in four certified schools which are State institutions and in an approved school which is a registered voluntary institution run by the Catholic Church with State assistance. Before admission to these schools delinquent children are placed in remand homes, of which there are four in number. They are not detained along with adult offenders. Government is considering a proposal to commence a well-advanced vocational training programme in the certified school at Hikkaduwa. Several new trades have been introduced to the female delinquents at Rammuthugala certified school. Formerly these inmates had been trained only in home science and handicrafts. Much emphasis is laid on the vocational programmes which are carried out in the certified schools for the rehabilitation of the juvenile offenders. The children who leave the schools are provided with tool kits to enable them to start self-employment.
157. The area of juvenile delinquency is one which needs close attention. The capacity of existing institutions, the training needs of the staff responsible for the rehabilitation of young offenders both on probation as well as in custodial care, the methods of rehabilitation and the follow-up of cases are all aspects of the care and rehabilitation of juvenile offenders which require continuous evaluation and improvement.
[Further information in State party report relating to the administration of juvenile justice]
IV. THE FAMILY AND THE CHILD
Family environment, parental responsibility and guidance
The right to privacy
45. Both the legal system in Sri Lanka and its culture in general are supportive of the values which protect the privacy of the family. The Sri Lankan Charter repeats article 16 of the Convention relating to privacy of children and family in identical language. Its application, however, would have to take account of the culture-specific context and the way in which individual privacy and rights pertaining to it are perceived and upheld. There have been no cases of violation of privacy of family and children by the State, media or other agent which have been brought before a court or received public attention.
46. The administration of justice relating to juveniles and family maintenance has some bearing on issues of privacy. Judicial proceedings against juveniles are held in juvenile courts specially set up for the purpose and children and juveniles are therefore rightly insulated from the adult world of crime and criminal justice. Criticism has been directed at the present system which brings maintenance claims under the jurisdiction of the magistrate's courts, which mainly exercise criminal jurisdiction. The justification for such a procedure appears to be the speedy disposal of such claims. Nevertheless, there is much to be said for the view that litigation of this nature should not take place in a predominantly criminal court. Family courts which were set up in 1979 were well suited to deal with matters pertaining to family relations. They were abolished in 1981. As an institution, the Family Court could play an important role in the judicial system, both adjudicatory and conciliatory, on a whole range of matters pertaining to family relations.
VIII. GENERAL MEASURES OF IMPLEMENTATION
158. The implementation of the Convention on the Rights of Children has to be placed within the socio-economic and political context and the constitutional framework that have been discussed in section I and the main text of the report. The socio-economic and political developments that have been very briefly outlined are relevant for the observance and implementation of most of the articles of the Convention, whether they be civil rights and freedoms, articles pertaining to standards of living, entitlement to health care and education or the satisfaction of basic needs. The presence of a literate, politically conscious population, the improvement in the status of women, an extensive social welfare system and an ideology which is protective of vulnerable groups, including children, all create the general conditions which are favourable for the effective implementation of the Convention on the Rights of the Child.
159. Several initiatives have already been taken by the Government to implement the Convention. The Government ratified the Convention in July 1991. The provisions of the Convention have been embodied in a Children's Charter which has further emphasized and elaborated some of the articles of the Convention which have special significance in the Sri Lankan context, such as the protection and strengthening of the family unit, parental guidance, religious education, adoption. Simultaneously, the Government has undertaken a review of existing legislation which relates to children with the objective of removing anomalies and inconsistencies and further strengthening the legal framework for the protection and promotion of the welfare of children.
160. Between 1991 and 1993 the Government has organized a coordinated effort to review the existing legislation relating to children, remove inconsistencies and strengthen the legislation for the protection of children in a wide range of vulnerable situations. Three technical committees were appointed to deal with (a) child abuse; (b) child labour; and (c) juvenile delinquency. The committees have completed their work and have submitted report which have been considered by the Cabinet and have been approved for the drafting of legislation. In the first phase action will be taken to make amendments to existing legislation, to strengthen the relevant legal provisions and include new provisions where necessary. Eventually, the Government expects to consolidate the amended and revised legislation in a Children's Act which would be the legal cornerstone for the protection of children. At the current rate of progress, it should be possible to achieve this objective before 1996. There have been several other practices initiated for the specific purpose of protecting children's rights such as establishing a special police desk to deal with complaints of child abuse and violence against women.
161. A National Committee for the Monitoring of the Rights of the Child, adequately representative of various government agencies and including members drawn from outside the Government, has been established in accordance with article 40 of the Convention. One of its main tasks would be the monitoring of the implementation of the Action Plan for Children. The Government formulated the Action Plan for Children in Sri Lanka in 1991 which seeks to address the problems faced by children below 15 years of age through programmes and measures to be implemented over a five-year period - 1992-1996. The implementation of the Plan is coordinated and monitored by the Ministry of Policy Planning and Plan Implementation. In both the work of the Committee and the implementation of the Action Plan, the UNICEF continues to be closely involved.
162. An NGO forum has been established to work closely with the Government and the international agencies on issues pertaining to children's rights as well as on monitoring the implementation of the Action Plan. The activities of the NGOs in support of the Convention have covered a wide field; they include training and education in human rights with special attention to children's rights, public awareness programmes and participation in the Government's initiatives for revising legislation.
163. The constitutional changes and the establishment of Provincial Councils have created conditions in which the local and regional needs will receive much closer attention and Government brought much closer to the people. In the transitional stages, however, many problems appear to have arisen and programmes such as those of the Department of Probation and Child Care appear to have suffered as a result of the lack of clarity in the division of responsibilities between the national and provincial levels. The system of devolution which was introduced in the second half of the 1980s is as yet in a formative stage and many of these problems are likely to be resolved as the system matures. Meanwhile, in defining the responsibilities for the implementation of the Action Plan for Children Government would need to deal with the problems that have arisen with devolution.
164. The Government has been especially attentive to the need to promote public awareness on the entire range of issues relating to children's rights and needs. Public awareness programmes have been conducted to inform and sensitize the public on particular aspects of children's rights, such as child labour. The programme on child labour has evoked a wide public response. The subject of human rights, more specifically children's rights, is infused into early studies in the school curriculum in the secondary grades. The primary grades curriculum is now being revised and human rights, more specifically child rights, will be infused into selected subjects.
165. Measures have been taken to mobilize broad-based political support for the promotion and protection of children's rights. A parliamentary subgroup has been formed for this purpose. The national press and the audio-visual media, both government and private, generally give wide publicity to issues relating to the well-being of children. Therefore, the Convention on the Rights of Children and the Children's Charter have been the subject of special media coverage. The Conference on Children for the South Asian Region convened by the South Asian Association for Regional Cooperation (SAARC) was held in Colombo in 1992 and became an important public event which received a great deal of public attention.
Source: Initial reports of States parties due in 1993: Sri Lanka, UN Doc. CRC/C/8/Add.13, paras. 12-17, 25-27, 45-46, 148-165 (5 May 1994)