19 January 2023 02:02 am Views - 1666
The practice of Corporal Punishment may not be achieved through isolated incidents, but a profound understanding by those entrusted with the care of children that violence is not a justifiable means to the end of discipline
Cruelty, violence, physical harm, particularly in the view of setting an example is condemned by all major faiths of our country, which forms the bedrock of our culture
Making mistakes is part of our human experience. It is by making mistakes that we learn and grow.
Imposing harsh punishments will only hinder growth and create a dent in the conscience. Is it acceptable to impose a harsh punishment on children? Shouldn’t we, as adults of this century, embody compassion when guiding the innocent to navigate through the trials and tribulations presented by life.
Corporal punishment has been considered a disciplinary practice since the mediaeval ages.
A practice, that was assumed to correct children when they behave outside the set norms of society.
A part of this punishment is the element of public shame. Corporal punishment hence can be detrimental to the child and its growth psychologically.
I agree that discipline of students is a matter within the purview of schoolteachers. It would follow that whenever they purport to maintain discipline, they act under the colour of office. If in doing so, they exceed their power, they may become liable for infringement of fundamental rights by executive or administrative action
Justice Kulatunga
What is corporal punishment?
The Committee on the Rights of the Child issued in its 42nd Session, General Comment No.8 (2006). Paragraph 11 of Comment no. 8 describes Corporal Punishment as follows:
“Any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involve hitting (“smacking”, “slapping”, and “spanking”) children, with the hand or with an implement - a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children’s mouths out with soap or forcing them to swallow hot spices).
In the view of the Committee, Corporal Punishment is invariably degrading. 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, a punishment which belittles, humiliates, denigrates, scapegoats threatens, scares or ridicules the child.”
Who is a child?
Article 1 of the Convention on the Rights of the Child (CRC) states “A child means every human being below the age of eighteen years (18) unless under the law applicable to the child, the majority is attained earlier.”
Article 11 of the Sri Lankan Constitution states “No person shall be subjected to torture or cruel, inhuman or degrading treatment or punishment” and this inclusive of children.
The Supreme Court Judgement delivered in 2021, Karunapala v. Siriwardhana (Case no. SC/FR/97/2017), condemned corporal punishment in schools. The facts of the case are as follows:
This child (15 years of age) was engaged in a school activity that entailed preparing a plant nursery. Feeling exhausted this child took a break and sat on a half wall. This was seen by the teacher in charge of discipline and the Sectional Head of the school.
Prior to this incident, the students were instructed by the Principal not to sit on this wall due to it being dangerous.
The disciplinarian teacher had summoned this child and had asked where was it that the child was seated and slapped the child. Later the teacher had allegedly told the student that it would heal soon.
“Now don’t go home and exaggerate it and tell your parents,” the teacher had said.
This child was not given any medical assistance by the school and was not allowed to go home. The little boy had bought two paracetamols from the canteen to ease the pain.
Once he went home, he was taken to the Kirinda-Puhulwella Rural Hospital and was referred to an ENT Specialist by the doctor there, as he suspected damage in the ear drum. He had to go to several other hospitals to consult specialists for consultation.
This child was later transferred from the Kirinda-Puhuluwella rural hospital to the Matara General Hospital and then to the Karapitiya Teaching Hospital on February 14, 2017, for further investigation and returned to Matara General Hospital on the same day.
When he returned home, the pain was severe. This child was taken to the Colombo National Hospital and was found to be suffering from conductive hearing loss that resulted from the assault. He was later referred for counselling.
This blow was so severe that it resulted in permanent hearing impairment.
Lifelong damage to the child. The court ordered a compensation of Rs.150,000 from the teacher and Rs. 500,000 from the State.
In this case, Justice S. Thurairaja, PC, stated:
“I must also recognise that the elimination of the practice of Corporal Punishment may not be achieved through isolated incidents, but a profound understanding by those entrusted with the care of children that violence is not a justifiable means to the end of discipline. Cruelty, violence, physical harm, particularly in the view of setting an example is condemned by all major faiths of our country, which forms the bedrock of our culture.”
The legal framework to protect children
Article 11 of the Constitution states “no person shall be subjected to torture or cruel, inhuman or degrading treatment or punishment”
Article 37 of the Child Rights Convention states as follows: “States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman, or degrading treatment or punishment. “
Article 5 of the Universal Declaration of Human Rights: “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.”
Article 7 of the International Covenant on Civil and Political Rights:
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
The case of Bandara vs Wickremasinghe (1995) 2 SLR 167, established that corporal punishment on children will amount to a violation of Article 11 of the Constitution.
Justice Kulatunga, who was on the bench observed:
“I agree that discipline of students is a matter within the purview of schoolteachers. It would follow that whenever they purport to maintain discipline, they act under the colour of office. If in doing so, they exceed their power, they may become liable for infringement of fundamental rights by executive or administrative action.” Further, “This Court must by granting appropriate relief reassure the petitioner that the humiliation inflicted on him has been removed, and his dignity is restored. That would in some way guarantee his future mental health, which is vital to his advancement in life.”
Children deserve respect. Imposing punishments that can harm their future is a violation of their Human Rights.
Parenst are the first teachers a child encounters, followed by school teachers. School plays a vital role in instilling values that an individual carries into society as an adult. This in turn becomes social values that determine how we interact with each other.
As parents, teachers, professionals and adults of today, it is our unspoken duty to create a more compassionate society for the betterment of Sri Lanka.