8 May 2024 12:01 am Views - 455
- Policy level experts claim that the decision to ban corporal punishment should have been taken 20-30 years ago
- The Corporal Punishment Ordinance has been derived from colonial law and all it says is that it applies to whipping as a sentence in the courts
- There are incidents of teachers using prefects to punish children in schools when they found out that they can’t use force on children
- One of the natural concerns teachers had was to know the alternative methods of disciplining children
- Another observation made during the discussion was to change the mindsets of teachers and principals
In early May, the Cabinet of Ministers approved amending both the Penal Code and the Criminal Procedure Code, which include provisions for the banning of corporal punishment across
A colonial construct
Even though the cabinet approved the new amendment to ban corporal punishment across all sectors last week, policy level experts claim that this decision should have been taken 20-30 years ago. “This shows how much we have failed the children of Sri Lanka,” said Emeritus Professor of Law Savitri Goonesekere. “Corporal punishment is a phrase embedded in English law. It was carried to all the Commonwealth countries in Asia and Africa and it focused on physical punishment as a method of legitimate discipline. It was carried into the courts by the sentence of whipping. So corporal punishment is a colonial construct as a method of discipline. We have internalized these ideas and this internalization came with the public schools in the country. The public schools in this country are what you call private schools in England. There it was institutionalized, six cuts on the palm and/or on the back was good for discipline.
When the cruelty offence was introduced in 1995 I have cuttings of all the Old Boys Associations that came up to say that they were men today because of this process. There it was a disciplined colonial construct with six cuts on the hand and/or the back. But now what do you have? Brutalisation, breaking of bones, ear drums etc. and these incidents happen in provincial schools,” said Goonesekere.
“When it comes to corporal punishment we don’t have much complaints against parents, but we receive complaints against teachers. We had good investigations in police history and at the moment when we receive a complaint against a teacher or a guardian we definitely go through Section 308 and consider its elements”
-Deputy Inspector General of the Child and Women Abuse Investigation and Prevention Division Renuka Jayasundara
She commended the Constitution as well as international laws that have included clauses and articles to protect the rights of children. “Hence the Constitutional standards are there. There’s great jurisprudence as well. The Supreme Court does not refer only to the right, it integrates all the international standards including ICCPR, ICRC in a country which has a dualist approach to the international law. So the courts have integrated and harmonized international laws,” she said.
Prof. Goonesekere further said that corporal punishment is illegal from the Constitutional perspective and illegal in statute law. “Article 311 in the Penal Code originally prosecuted teachers and parents. Article 308A especially mentions cruelty. In 2006 injuries were referred to as not only physical but as psychological as well. Then the Domestic Violence Act in 2005 re-enforces this concept that a child has a right to protection from violence and any violation is a criminal act by cross-referencing Section 308A,” she said while adding that insignificant provisions of the Penal Code in the 1800s should have been repealed long ago.
She further said that the corporal punishment ordinance that has nothing to do with children. “The Corporal Punishment Ordinance has been derived from colonial law and all it says is that it applies to whipping as a sentence in the courts which is irrelevant to the issue of corporal punishment. These policy inconsistencies have been used to legitimize the lack of political will on the part of the state,” she said.
Progressive amendments
Shedding light on the laborious efforts made in drafting the legislation to end corporal punishment, Dr. Tush Wickramanayaka, Founder of the Stop Child Cruelty Trust said how the Committee drafted the legislation in such a way to ensure that the law is being applied for everyone. Chairperson of the NCPA Committee, President’s Counsel Prasantha Lal De Alwis, said that the Committee comprised various stakeholders such as the UNICEF as well as lawyers. Making some technical observations he said that the Cruelty to Children’s Act had the word ‘wilful’ as the mental element. “During a previous case we argued that wilful can’t be a spur of the moment and it has to be a planned effort and it is of a higher elevation than general intention. We argued and we succeeded. So the law today is that wilful can’t be spur of the moment. This draft was a result of some laborious work. We got all stakeholders and organisations together and it was a well conceded draft,” said De Alwis.
De Alwis further observed how teachers had been using prefects to punish children in schools when they found out that they can’t use force on children. “So we included prefects after long deliberation, so that even prefects can’t be used in schools to punish other students. That was one positive development we implemented,” he said.
He further said that one of the natural concerns teachers had was to know the alternative methods of disciplining children. “There is only 40 minutes for a teacher in the classroom and there are about 50 students in a class. So at the stakeholder meeting the teachers said that they would only teach and not discipline the students which was a positive takeaway. The UNICEF too has come up with alternative methods of correction which could be implemented by teachers and parents alike,” he added.
Article 311 in the Penal Code originally prosecuted teachers and parents. Article 308A especially mentions cruelty. In 2006 injuries were referred to as not only physical but as psychological as well. Then the Domestic Violence Act in 2005 re-enforces this concept that a child has a right to protection from violence”
- Prof. Savitri Goonesekere
Human rights to be included in curriculum
Another observation made during the discussion was to change the mindsets of teachers and principals. Dr. T. Thanaraj, Commissioner at the Human Rights Commission of Sri Lanka said
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Prashantha Lal De Alwis |
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Dr. Thanaraj |
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Dr. Wijeyadasa Rajapakshe |
that the HRCSL received 19 cases relating to corporal punishment in 2023. “The HRCSL is more interested to disseminate knowledge on alternative methods of disciplining children. For this purpose we have established a child rights unit at the HRCSL where we want to introduce human rights into the school curriculum. National Institute of Education has given us the approval in this regard and the present director general is supporting us in this cause. We are also developing a syllabus based on human rights. We also want to introduce human rights into the teacher education curricula. We have 19 colleges of education and we plan to introduce human rights into their curriculum. Another approach is to integrate human rights as a subject in the Postgraduate Diploma in Education,” he added.
Lack of institutional collaboration
Even though the issue of corporal punishment concerns children, many stakeholders need to come together to address the issue. Prof. Goonesekere further observed that institutional networking has failed. “There needs to be a process where each department should firstly discuss with one another and then carry out the implementation process. What happens now is very ad hoc. The Education Ministry should link with the Justice Ministry, Health Ministry etc. Therefore somebody needs to look at how the governance and the institutional structure in this country could be improved to do for children what you want to do for children. At one point Sri Lanka had a Ministry of Women’s and Children’s Affairs with a cabinet minister. We should go back to what worked and reinvest in what worked,” said Prof. Goonesekere.
Interventions by the Police
The Police Women’s and Children’s Desk has been at the forefront in receiving complaints with regards to corporal punishment. Speaking about their role in addressing the issue, Deputy Inspector General of the Child and Women Abuse Investigation and Prevention Division Renuka Jayasundara said that there is a strong structure within the Police to investigate crimes such as cruelty against children. “When it comes to corporal punishment we don’t have much complaints against parents, but we receive complaints against teachers. We had good investigations in police history and at the moment when we receive a complaint against a teacher or a guardian we definitely go through Section 308 and consider its elements. For example, we refer the child to the doctor and if the doctor’s report indicates that the child is undergoing psychological issues as a result of the punishment we refer Section 308. If not there are instructions received from the AG’s Department and we have to send them files. When it comes to domestic violence, two years ago when I assumed duties, the implementation of the Domestic Violence Act (DVA) was very poor. It was only 0.3% in Sri Lanka and we received 130,000 complaints per year. But we have only implemented restraining orders for 300 cases.
But now we have a special project to minimise domestic violence by increasing protection orders. We have a new project to rescue children under the domestic violence act and get restraining orders on behalf of their safety. As police officers we have trained our police officers to develop their capacities and recently the President instructed the IGP to strengthen the Women’s and Children’s Desk,” she said in conclusion.
Final draft yet to be approved: Justice Minister
The Daily Mirror contacted Justice Minister Dr. Wijeyadasa Rajapakshe to inquire about the new amendments in place with regards to corporal punishment. However he said that the Cabinet has approved the draft in principal and that it has to be sent to the Attorney General’s Department and the legal draftsman. “There are ongoing discussions at the Ministry of Education with regards to this draft law. As such, the final draft is yet to be approved,” said Dr. Rajapakshe.