21 November 2018 12:00 am Views - 3704
The Penal Code Amendment Act No. 22 of 1995 provided for the offence of Cruelty to Children (section 308A) reads as follows:
(1) “Whoever, having the custody, charge or care of any person under eighteen years of age, will fully assaults, ill-treats, neglects, or abandons such or causes or procures such person to be, ill-treated, neglected, or abandoned, in a manner likely to cause him suffering or injury to health commits the offence of cruelty to children.”
Article 82 of the Penal Code 8 states: “Nothing, which is done in good faith for the benefit of a person under twelve years of age, or, of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause/or be intended by the doer to cause, or be known by the doer be likely to cause, to that person”.
Article 3418 states that, “if a schoolmaster, in the reasonable exercise of his discretion as master, flogs one of his scholars, he does not use criminal force, because, although he intends to cause fear and annoyance to the scholar, does not use force illegally.”
If you found no ambiguity in the laws governing corporal punishment, you can resume reading our other colourful feature articles expressing the political cries and screams for democracy. However, many analysts or even laymen can explicitly observe a plethora of loopholes in our corporal punishment legislature.
Loop hole 1: If there is only suffering and injury to the health of a child, one can be prosecuted under the law of corporal punishment ( Penal code- 308A)
Loop hole 2: If corporal punishment is done in good faith, it is not illegal ( Article 82 penal code)
Loop hole 3: Penal code Article 341 is stained with many loopholes, where a child can be even flogged if the force is not illegal.
Hence, the laws can be discerned to be a sprawling mess of contradictory legislature. The law in itself is one of the most significant reasons why no one has been prosecuted for corporal punishment. Sri Lanka also needs an attitudinal shift, where parents and teachers understand the detrimental and long-term harm of corporal punishment. However, on a more positive note the ‘End corporal punishment in Sri Lanka: Vision 2020 ( ECP2020)’ campaign will implement a pentagon proposal inviting five key stakeholders responsible for child protection to work collectively to ECP by 2020. Further, a new organisation called ‘Stop Child Cruelty’ is on its mission to completely eliminate corporal punishment in Sri Lanka. It is the only internationally acclaimed organisation in Sri Lanka that is dedicated to end corporal punishment from our nation. Further, it also has the patronage of the President and its members.
According to the UNICEF, Corporal Punishment is any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) In addition, there are other non-physical forms of punishment that are also cruel and degrading and thus incompatible with the Convention. These include, for example, punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child.”
“How much does it cost to change the law? Not even a cent,” said the strong hearted Dr. Tush Wickramanayaka, Chairperson of Stop Child Cruelty Movement. She said,“If people truly believe that there are adequate laws to protect children, then as a nation we do not have to address the issue of corporal punishment. When a
We must teach people other mechanisms of how to discipline children. Corporal punishment is not simply physically beating a child, but it also includes non physical punishment such as making children kneel, stand on one leg or keep them in the sun for hours.”
She explained the significance of the UNCRC, and Sri Lanka’s journey in accomplishing the goals of the UNCRC (UN Convention on the Rights of the Child), “In 1992 Sri Lanka ratified and signed Article 43 (1991), established in the UNCRC, which proposed to end corporal punishment. As many as 152 countries signed UNCRC and 131 have banned corporal punishment in schools while 53 countries have banned corporal punishment in homes and schools. In 2030, according the UN sustainable development goals, goal 16.2 particularly addresses violence against children. Therefore Sri Lanka would come under increasing pressure to address corporal punishment, including by enacting and implementing laws that send a clear message that violent punishment of children is no longer acceptable.”
We did change our law in 1995, by amending the penal code 308A, where it said you could go to jail for corporal punishment, but only if there was suffering or injury to health
Explaining Sri Lanka’s current position, she said, “Since 1992, Sri Lanka has had 4 executive presidents and 9 prime ministers and 6 general elections. But we still have not been able to live up to the agreement of the UNCRC. The constitution clearly states that every citizen has the equal protection by law.
“We did change our law in 1995, by amending the penal code 308A, where it said you could go to jail for corporal punishment, but only if there was suffering or injury to health. This law is problematic because UNCRC expects the law to be explicit where there is no loophole for the perpetrator to escape. Further, the penal code Article 82 shows that if such punishment is done in ‘good faith for the benefit of a person under twelve years of age’ it is not against the law. This shows how confusing our law is and it also shows why we need a complete blanket ban on corporate punishment.” She said.
She further added by saying, “The UNRC in February this year issued a red alert regarding this island. Sri Lanka should not take it lightly when ratifying anything associated with its international commitments. We have been assessed annually since 1992. But now the UNCRC is fed up, so we learn. Our next assessment is coming in 2020 and many believe we will have banned corporate punishment by then”.
“Corporal punishment has been so ingrained in our society, that it has been truly hard to completely get rid of it. We have to accept the fact that practices that have existed for generations are very hard to change. It is sad that there is a mistaken notion that it is good for the child. Sometimes when I visit schools and homes I still see the cane resting in the corner of a room, and that is disturbing. Can we not discipline children in any other way?” Asked Dr. Hiranthi Wijemanne, Former Chairperson NCPA (National Child Protection Authority), Former Director of UNICEF, Former Member Presidential Task Force on Child protection.
He spoke on why we need to stop corporal punishment, “It is important that we all realise that hitting somebody is bad whether it be an adult or a child. If an adult is beaten up, it has the right and the power to rely on the law to solve the issue. But, a child has no forum to speak out. People argue that they were beaten and nothing happened to them, hence there is no problem in doing so. It is also important to realise that some children are resilient, where they cannot be easily pushed down. However not all are resilient. Beating up a person may not always cause permanent physical harm to a child, but it can negatively affect the mind. When the mind is effected it may lead to short-term or long term mental harm.
He further illustrated the vicious cycle of corporal punishment. “This harm often becomes inter-generational. For instance when you are beaten up, children usually become stressed and neglect their studies. When you stop studying you are beaten up more. Hence it is a vicious cycle of beating up. The child falls back in class work and the parents may also encourage the beating up of the child, or they themselves may beat up the child. The child may loiter around in order to avoid being beating up; he will get into bad company and be influenced to take up smoking or consume drugs and alcohol. I have done studies with my colleagues on the behaviour of young people and we found that their physical, mental and sexual aggression is directly attributable to their childhood behaviour. Those who have been beaten and sexually abused usually reciprocate such actions in their adolescence. Thus, today’s abuse becomes tomorrow’s abuser. Hence, the violence we experience today is the violence that the perpetrator had experienced during childhood, because they have justified that behaviour.” He added.
Once I gave a lecture on corporal punishment at a leading school in Colombo, and after the lecture a teacher came up to me and said I am what I am today because I was hit
Dr Piyanjali De Zoysa, Professor in Clinical Psychology, Faculty of Medicine, University of Colombo, elaborated on why corporal punishment persists in the country. She said, “When we consider why an adult would beat up a child we see that most people do this with an idea of compliance. They expect the child to behave at that certain time. Usually when you hit a child or pull at the child’s hair, there is immediate compliance. Most people are very happy about that. But as rational adults we want something more than immediate compliance and we want something more for our children. We want to make them functioning citizens of the world.”
She further showed how there is no moral internalisation when a child is subjected to corporal punishment, and added, ‘‘ The values that the adults want to impart to the child when they hit a child is not internalised. For instance when a child is hit for not producing the completed home work, the child feels unhappy, shameful and angry. They do not grasp the message that the teacher wants to give. The biggest problem when a child is hit is that they do not learn societal values. Children also learn that aggression is okay. They begin to imitate this behaviour. This is seen in our state universities when students rag other students and at the work place when we find work place harassment. Of course in the work place physical abuse is seldom seen, however verbal harassment and passive aggression exists in the work environment. The reason is that as children if we learned that hitting is normalised it is carried in their adulthood as well.”
She highlighted the three main reasons that teachers beat up children, referring to a study done by Professor Harendra De Silva in an island wide survey, in six district in Sri Lanka on school corporal punishment: Not doing homework, Love affairs and Dress code.
These are basic issues that are seen in all schools in the globe. Children not doing homework because there is an inundation of homework in our system and having love affairs and not dressing properly are normal psycho-sexual behaviour. However, beating children for such behaviour has a plethora of consequences.
Provide information and knowledge to the people, as to why we should we not beat up a child. This knowledge must be ingrained within the people.
We need to have attitudinal change; simply giving knowledge is insufficient.
We must provide skills to people regarding what to do when a child misbehaves.
Children are beaten usually because of sudden anger. After the anger has whittled, the parent is usually sad and sorry, and gives a treat to the child to compensate for the beating. Hence the child is rewarded for the bad behaviour.
Most people believe that corporal punishment is part of our culture and other forms of soft discipline is from western culture
In reference to the Chulawamsa it says that in the 1200s during the Anuradhapura and Polonaruwa Era we had two kings Vijayabahu and Vijayabahu III, who introduced legislature explicitly stating that there should be no physical punishment on both adults and children.
Therefore, our culture was such that had a negative view on corporal punishment. However, when we were colonised the subjugations brought in the practice of corporal punishment with them, from public school practices from their respective countries.
The ironic thing is, those countries have let go of the practice while we still embrace it. Hence, corporal punishment is a practice from the western world that we are dearly holding on to.”
Youth Ambassador of the ‘Stop Child Cruelty’ organization, Lukshi Ranasinghe , Centenary Head Prefect of Visaka Vidyalaya said, “When I was head prefect a lot of students have come and told me about the harassment they faced at the hands of their teachers and their peers. Ragging does not only happen at university, it also happens at school level and most children resort to cutting themselves and suffer from depression. Teachers oppress students much and they propagate a fear mentality where they make children believe what happens in school must stay in schools. I believe children should have the freedom to tell what happens in school.”
Sidath Wettimuny former cricketer and a patron to the ‘Stop Child Cruelty’ Organization said, “When I was a young boy I was slapped twice and up to date I still do not know why I was slapped because I did not feel I deserved to be slapped. Over the years I have been thinking why was I slapped and what made that teacher do it. The conclusion I came to many years later was that the teacher was not trying to punish me, but he was trying to vent out his own frustration by using me or he tried to use me to teach the other kids by using me as a vehicle for abuse.
Entrepreneur, philanthropist, activist and a patron of ‘stop child cruelty’ organization, Otara Gunewardene said, “I have never been punished in my home or school. I always support kindness and passion for all, whether it be children or adults alike. As much as I see so much kindness and passion I see so much cruelty every day. It is important for us as a country to grow with kindness as it is our only way forward.”
Kavindu Dhanyrda Indatisaa said, “We had a priest in school who used to find excuses to punish boys because he seemed to enjoy it. He hurt me in the stomach once even though I simply stood up in class to go throw something in the dustbin. I believe you cannot beat up children or make them kneel outside, simply because they talked to a friend in class or went to throw something in the bin.”
A student from a popular school in Kiribathgoda said,”When we were in grade 11, a batch mate of mine was slapped across the face in front of the whole class by the class teacher because she was seeing a boy. I witnessed this as I was walking past that class. I don’t think teachers should be allowed to touch students because that violates students’ rights. It transfers an immense amount of power to teachers which make the students hopeless, powerless and ultimately left with no trust in the school system. I feel it is a true abuse of power.”