• The delays that occur frequently in the verdict of cases have adverse consequences on such offenders
• There is no single legal definition for a child under Sri Lankan law
• Neuroscientists have revealed that the human brain involved in decision-making is not fully developed until after age 18
• They as children suffered significant trauma being victims of abuse or neglect and witnessing domestic violence

By Piyumi Fonseka

@Piyumi_Fonseka on Twitter

The death penalty and sentence of life in prison are sentences that ensure that an offender will never be able to rejoin civil society. There is no doubt that anyone who commits crimes should be held accountable and punished in addition to being a deterrent to others in society.   
But, are punishments-such as death penalty and sentence of life fair sentences-for a person who committed the crimes as a child, before turning the age of 18?   

According to the Penal Code, Section 53 states that no person under 18 years of age can be sentenced to death.  However, in Sri Lanka, when an offender who has crossed the 18-year threshold between the date of the offence and the date of conviction, culpability is judged without reference to the offender’s age at the time of committing the offence.   

That means, despite the offenders being children at the time of offences, the punishment is all too often no different from those given to adults. This practice for children falls short of international best practices and also causes grave injustice for child offenders.   

The Daily Mirror through this article delves into the question of how just our justice system is for such child offenders.

NO UNIFORM DEFINITION OF A CHILD 

The definition of “child” is important for providing the necessary protection to children and for safeguarding the rights specific to children. However, international law and domestic law have confusing ideas about defining a child. There is no single legal definition for a child under Sri Lankan law.  

The Sri Lankan law recognises three categories, namely children as those who are under the age of 14, then the juveniles as those who are between the ages 14 and 16 and the youthful offenders as those who are between 16 and 22 years.

"Despite the offenders being children at the time of offences, the punishment is all too often no different from those  given to adults"

This interpretation is contrary to the UN Convention on the Rights of the Child (UNCRC) definition, where a child is defined to be less than 18 years of age. Since Sri Lanka has ratified the UNCRC, the country is bound to comply with its provisions.   

Children under the age of eighteen are not legally permitted to perform several actions across many occasions because they are presumed not to have the capacity to handle adult responsibilities.   
However, Daily Mirror Eye owns several cases where inmates who have been given the death penalty for crimes committed at an age when they are not even considered responsible enough to live away from their parents, drive, marry, vote, leave school, or sign a contract.   

COURT DELAYS CAUSE ADVERSE IMPACT ON CHILD OFFENDERS

Kalyananda Thiranagama is a senior lawyer specialising in human rights. He and his organisation Lawyers for Human Rights and Development (LHRD) have been working for prisoners who have been sentenced to death for crimes they committed as children.   

In an interview with Daily Mirror Eye, Thiranagama who appeared for the above appeal cases said that the sentences sighted above are based on unlawful assembly.   

He said that according to the evidence in these cases, none of these children has personally committed any criminal act, other than being present at the scene at the time of the commission of the offence by some other person.

The delays that occur frequently in the verdict of cases have adverse consequences on such offenders.   
“The above-mentioned persons who were children of 14 - 16 years of age at the time of their arrest have been sentenced to death and are languishing in death row, not because of the crime alleged to have been committed by them, but due to the delay on the part of the authorities to indict them and conclude their cases within a reasonable time. If they were indicted and their cases concluded within two years, none of them could have been sentenced to death,” he said.   

VIOLATIONS OF NATIONAL AND INT’L CONVENTIONS

Sentencing persons under 18 years of age at the time of the committing of an offence to death is - contrary to the many national and international provisions such as the following.   

1.  Children and Young Persons Ordinance - 

   S. 24 (1) Where in lieu of a sentence of death, a sentence of detention during the President’s pleasure has,            under S. 53 of the Penal Code, been passed by any court in respect of a person who, in the opinion of the court      is under the age of 18 years, the court may order that the person to be detained in a remand home until the            President’s pleasure (President’s approval) is made known.   

2.  Youthful Offenders (age group of 16 – 22), (Training Schools) Ordinance –

S. 4 (1) Where any male person –   
    (a) is convicted by the High Court of any offence which, according to the First Schedule to the Code of Criminal      Procedure Act, is triable only by the High Court, --- and it appears to the Court –  (i) that a person is youthful;         (ii) that because of his criminal habits or tendencies or association with persons of bad character, it is expedient     that he should be subject to detention under such instruction, training and discipline as would be available in a        training school,  the court may, in lieu of making any order which it is empowered to make under the provisions of    any other written law and subject to the provisions of subsection (2), order him to be detained in a training school    for three years.   

3. Article 37 of the Convention on the Rights of the Child ratified by Sri Lanka in 1991: 
   State parties shall ensure that (a) No child shall be subjected to torture or other cruel, inhuman or degrading         treatment or punishment. Neither capital punishment nor life imprisonment without the possibility of release           shall be imposed for offences committed by persons below eighteen years of age.   

4. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) prohibits the imposition of the death penalty for offences committed by juveniles: 
   Rule 17 (2) Capital Punishment shall not be imposed for any crime committed by juveniles.   

REFORMS TO PENAL CODE

Attorney-at-law Thiranagama emphasised that in deciding the culpability of a person, what is material was not the age at the time of the conviction, but the age at the time of the committing of the offence.   

The wording used in S.53 of the Penal Code does not recognise the distinction between the age at the time of the conviction and the age at the time of the committing of the offence. Thiranagama pointed out that it resulted in grave injustice to children who were tried and sentenced to death a long time after the commission of the offence.   

He emphasised that if Section 53 of the Penal Code is amended laying down the fact that no court should sentence to death a person who was a child under 18 years of age, at the time of his involvement in the commission of the offence, this grave injustice caused to children can be prevented.   

CHILDREN ARE DIFFERENT, SCIENCE SAYS 

Discoveries of Neuroscientists have revealed that the human brain involved in decision-making is not fully developed until after age 18. In a series of four cases decided from 2005 to 2016, the U.S. Supreme Court incorporated evidence about adolescent development into the Constitutional principle that “children are constitutionally different from adults for purposes of sentencing” because they have “diminished culpability and greater prospects for reform.

Youth and its attendant characteristics” must be considered at sentencing, the Court held, even for children convicted of the most heinous murders.   

Meanwhile, Raneesha de Silva, one of the few forensic psychologists in Sri Lanka in an interview with Daily Mirror Eye said that children and adolescents possess moral and cognitive capabilities that are not quite fully developed.

She is of the view that when determining the verdict of a young offender, it is important to consider whether the s/he has the maturity to fully appreciate the consequences of his/her conduct; as the actions may be influenced to a great extent by biological and/or contextual factors such as, existing mental health difficulties, exposure to violence/maltreatment, undue pressure from peers, lack of appropriate parenting, and/or substance abuse, to name a few key factors.  

According to the case files and testimonies of the convicts sighted in the above two cases, they as children suffered significant trauma being victims of abuse or neglect and witnessing domestic violence.   
 

   LETTER OF A CONVICT IN THE KEGALLE CASE   

“When I was six years old, my father brought home a stepmother. They always used to fight. Later, she left us with the youngest sister, abandoning me and my elder sister. She never came to see us since then. We grew up with our grandmother. We ate only one meal a day. When we couldn’t bear hunger, we used to eat habarala ala (taro roots) for lunch. By the time of this crime, I was fifteen years old. I had just come home from school when this crime took place in our home. I had no idea what was taking place. Our aunt (father’s sister) took us out of the house. Later, we stayed with our aunt. We had to work as servants in aunt’s place. I later came to know that my name is also mentioned in the court case. Since I wasn’t guilty of the crime, I didn’t think that much about the ongoing court case. But, here I am convicted of the crime and waiting for death in prison. I never received love and affection from my parents. I have been thrown to the death penalty because of the same parents.”   

Speaking of that, de Silva pointed out that; “factors regularly present in the background of those children who commit offences include low family income, domestic violence, low educational attainment, early experience of offending by other family members, the misuse of drugs and also mental issues. Less moral capacity means less criminal culpability and a different level of punishment”.   

“Children can and do commit terrible crimes. When they do, they should be held accountable, but in a manner that reflects their special capacity for rehabilitation. And, like adults, they should be held accountable – but in accordance with their age, stage of development, and greater capacity for rehabilitation. A sentence of life in prison is excessively harsh for such young people, many of whom were themselves, victims of abuse or neglect,” she explained.   

HOW OTHER COUNTRIES ADDRESSED IT 

In a series of landmark decisions, the United States Supreme Court ruled that children must be sentenced differently. In its 2012 decision in Miller v. Alabama, the court held that juvenile life without parole sentences was unconstitutional and the government is required to consider the unique circumstances of each juvenile defendant in determining an individualised sentence.

As a result, juveniles sentenced to parole-ineligible life sentences in 29 states and the federal government are now in the process of having their original sentences reviewed or have been granted a new sentence.   

Over the last several years, the US courts have begun to acknowledge what has long been known by most psychologists and neurologists. The still-undeveloped brains of children make them more impetuous, more emotional, less capable of making moral judgements and more capable of eventual rehabilitation.   

DIRECT ADMISSIONS OF CONVICTED AND UNCONVICTED PRISONERS ACCORDING TO AGE GROUPS

Prison Department does not maintain a record of the number of prisoners who have been given the death penalty or life imprisonment for crimes they committed as children. However, following  is the number of convicted and unconvicted prisoners involved in various crimes between 2017 and 2019. They are defined as children, juveniles and young persons in Sri Lankan law.