How can Sri Lanka’s justice system improve how it deals with cases involving children?
By Sumudu ChamaraTo most people, the justice system is a system limited to merely penalising offenders, and as a result, the people’s idea of the country’s justice system has drifted away from other main duties such as releasing a reformed person to the society after rehabilitation. In this process, the manner in which the justice system deals with offenders should focus on both what is best for offenders and the country, and to do that, paying attention to different age and gender groups is crucial.To make some positive changes in that connection, the Justice Ministry recently announced its plans to amend several laws applicable to children.Reforms for the wellbeing of childrenThe Ministry last week proposed several amendments for the protection and wellbeing of children, especially female children, who have been accused or convicted of offences. According to Justice Minister President’s Counsel (PC) M.U.M. Ali Sabry, these reforms are being proposed with the aim of ensuring a fair chance to create a more positive future for such children, and are a part of the Ministry’s ongoing efforts to reform criminal, civil, and commercial laws in the country.Minister Ali Sabry PC, on 21 October, stated that the amendments for the Youthful Offenders (Training Schools) (Amendment) Bill, which were tabled in Parliament last week, were aimed at ensuring the protection of children. He made this statement after the Ministerial Consultative Committee on Justice Reforms put forward the Youthful Offenders (Training Schools) (Amendment) Bill in Parliament for the purposes of making such gender neutral. This includes amending the age limit, which was previously below 18 years, to be between 18 and 22 years.Speaking in Parliament, he explained the reasons as to why these amendments were presented, noting: “We believe that no child under the age of 18 years should be punished by being sent to prison, and under the current law, an offender who is above the age of 16 years is either sent to prison or to detention schools. The existing law which allows children below the age of 16 years to be sent to detention schools, only applies to boys, and girls of the same age are sent to prison, where they are kept with offenders who are older than them.”Minister Ali Sabry PC noted that a number of concerned parties have contacted him with regard to the matter, claiming that these existing practices go against international and domestic child protection norms. Emphasising that children should not be in prisons at that age with older offenders, Minister Ali Sabry PC noted that it can impact those children’s future in a negative manner. This, according to him, is the reason that the Ministry had decided to put forward the said amendments, with the aim of ensuring a separate legal reform process for children. Previously, the Ministry also revealed plans to amend the Penal Code, with the aim of amending sections pertaining to not giving the death penalty to convicted children. It mainly focused on replacing the sentencing of convicted minors to be detained “at the President’s pleasure”, with custodial sentences.At present, Sri Lanka’s juvenile justice system is covered by three laws, i.e. the Children and Young Persons Ordinance, No. 48 of 1939; the Youthful Offenders (Training Schools) Act, No. 42 of 1944; and the Probation of Offenders Act, No. 10 of 1948.Status quo and reformsFormer National Child Protection Authority (NCPA) Chairperson and incumbent Sisters at Law Founder Attorney-at-Law (AAL) Marini De Livera said that Sri Lanka’s juvenile justice system should certainly be improved, and that due to the existing system not being child friendly, children face many issues.She added: “The existing system should be improved, as it is running very sluggishly. We have to keep in mind that especially when children are involved, the justice system has to give a quick remedy, whether they are offenders or victims. Even though Sri Lanka has subscribed to the United Nations (UN) Convention on the Rights of the Child (CRC), the way Sri Lanka’s justice system with regard to children is functioning is far below international standards.”De Livera also pointed out that the manner in which children are dealt with should be improved not only with regard to children that get convicted or tried, but also regarding children who have to deal with the justice system and the law enforcement agencies as a result of their parents getting convicted or remanded. She noted that reforms and improvements should therefore focus on addressing difficulties faced by children at police stations as well.“Sometimes, the Police are not child friendly at all, and I have come across incidents where children did not get the treatment they deserve at the Police Child and Women Bureau,” she claimed, noting that in addition to inadequacies pertaining to practices and operations at police stations, the lack of child-friendly facilities is also an issue, especially in instances where a mother and/or a father of a child are seeking the Police’s assistance with regard to severe conflicts and domestic violence.Not having a proper and adequate system or facilities to provide children with mental health support, especially when they have to stay in remand prison when one of their parents, mostly the mother, gets convicted or remanded, is another issue that De Livera highlighted. The fact that children do not have adequate facilities or access to obtain counselling from other places such as schools, according to her, exacerbates this situation. Explaining flaws in the operation of the justice system, De Livera pointed out certain instances where children had to spend time in remand prison, with adult prisoners who had been remanded for grave crimes. She noted that this has happened to children who are not offenders, and are merely victims of crimes. “This is a very sad state of affairs. Even when these children are taken to and from court, they are transported in the same prison bus as hardened criminals, and these children are placed with prisoners inside the prisons. Sometimes, children are sent to orphanages when their parents get imprisoned and/or remanded, and some children face issues in these institutions as well, due to victims and child offenders being mixed. This is a secondary victimisation,” she explained.With regard to the reforms that need to be made within the juvenile justice and law enforcement sectors, De Livera said that among other measures, officers attached to these sectors need to be trained to deal with children in a more effective manner.“Judges and police officers have to be trained, and the police force has to be more organised, committed, and passionate when it comes to dealing with children. In addition, civil society can also play an important role in this matter. Civil society needs to be educated about the laws and situations of child abuse in order for it to contribute more actively. Properly identifying issues and reporting those issues are key steps. “In addition, there should be an efficient complaint mechanism to be used if the Police do not perform its duties properly. Establishing hotlines in police stations could be one such step; however, it has to be efficient. Even though there are certain hotlines such as ‘Tell the Inspector General of Police (IGP)’ they are not very responsive.” Even though The Morning attempted to contact incumbent NCPA Chairman Prof. Muditha Vidanapathirana, he was not reachable.However, speaking on the practical and legal issues within the country’s juvenile justice system that affect children, accused parties, and convicted persons, Child Protection Force Founder AAL Milani Salpitikorala said that there are quite a few challenges faced by young persons who have been accused of offences. She explained: “The Children and Young Persons Ordinance deals with matters relating to young offenders and their care and protection. In my opinion, this is a good law, but the State has failed to reform the law to fit today’s society. For example, the Ordinance interprets a child to be a person below the age of 14 and a young person to be a person below the age of 16, leaving a huge lacuna of interpretation when it comes to persons between the ages of 16 and 18 years. “As we all know, the universal definition of a child is a person below the age of 18 years; however, the one law in the country to protect and safeguard the child has a vague definition for the age of the child. As per the Penal Code (Amendment) Act, No. 10 of 2018, the age of criminal responsibility is 12 years. This means that a person over the age of 12 can be responsible for his/her actions. In a situation where a young person is accused of an offence, the law has provisions to refer him/her to a multi-disciplinary team consisting of a psychiatrist, psychologist, judicial medical officer (JMO), etc. The challenge is whether this is done in practical terms.”She also noted that one of the major challenges faced by young persons who have been accused of offences is that they are subjected to the usual retributive criminal justice system, and added that there is no special system in Sri Lanka to rectify or handle a crime committed by a child or a young person. She said that in addition to these, the age-old challenge of delays exist within the system, which causes more and more mental agony and anxiety as opposed to allowing the child or young person wanting to change his/her actions to become a responsible citizen. With regard to mental health assistance provided to children within the justice system and barriers in that connection, Salpitikorala said that right now, except for ad hoc counselling or physical therapy, there is no sustainable, planned mental health assistance for children who have been accused of offences. “This is of absolute necessity for children who have been accused of offences. It is important that we, as adults and state actors, try to understand the reasoning behind the child committing the alleged crime. For example, in one of the cases we came across, a young girl at the age of 16 years started using heroin because she was compelled to give up her child for adoption. In another case, a young boy of 15 years threw a stone at a man who came to cut his mother with a knife. Unfortunately, the strike killed the man, and now the boy is in a remand home. Within these child care institutions, children who are accused of offences are treated differently to other children. They are most often locked up with no access to education.”With regard to measures that can be taken to address the above-mentioned issues with a focus on making Sri Lanka’s juvenile justice system more child friendly, she added: “In most jurisdictions, young persons who have been accused of offences are subjected to a system other than the retributive criminal justice system. The reasoning behind this is to allow them a chance at rectifying the wrong they did and try to be useful to society and the State. This makes absolute sense, as it would save state resources by cutting down his/her dependency on state resources by being institutionalised. In the UK and in many other countries, this is called a ‘restorative justice system’. “By no means do I mean that this should be implemented for all persons who are accused of crimes, but most definitely for children and young persons who are accused of crimes. The word ‘restorative’ means giving the accused a chance to restore the situation, while taking responsibility for his/her actions, but also allowing him/her the room and space to apologise, restore, and have a second chance at life. These may include solitary confinement, but with access to education, proper mental health assistance, time to do social work, and so on. “The restorative justice system brings in all the parties to a case to one table, facilitated by state actors, giving the chance to the accused to apologise and take responsibility for his/her actions. The victim may or may not accept it. This is facilitated to make sure that the accused makes a promise not to do it again and also leaving the space for the victim to maybe accept it. In these countries, the system of restorative justice for youth has shown success. “In the UK, there is a Youth Justice Board, which is a system of alternative justice for young people. This can simply be implemented in Sri Lanka in collaboration with the Justice Ministry, the Women and Child Development State Ministry, and the Youth Affairs Ministry, to appoint a panel of experts to a Youth Justice Board. This would also lessen the burden of the courts with cases involving children who have been accused of offences.”Salpitikorala also spoke about the issues that exist in law enforcement agencies, especially in the Police Department, when it comes to dealing with children: “This issue can take two ways. For one, the law enforcement entities are not sensitised towards matters pertaining to children. The Police Training Institute has to take action to start a separate course and training programme specific to child-related matters. “The other most important challenge is resource allocation. For example, in a particular police station that I currently work with, the Women and Children’s Desk receives over five complaints daily. On an average, it takes at least one to two hours to write the complaint down. If there are supporting statements, then again, one to two hours per each statement. Thereafter, the Officer-In-Charge of the said Division has to conduct the inquiry, draft the B report and charge sheet. “These are extremely time-consuming, daunting duties. This particular police station’s Women and Children’s Desk does not have a vehicle to travel to a crime scene or to take a child to the JMO. The desk itself has only two officers. We must understand that they too are people like you and me, with families and little children of their own, personal challenges of their own, illnesses, loans, old parents, etc. The task they carry out is daunting. “I personally know a lot of such officers who suffer extreme anxiety due to being overworked, underpaid, and unappreciated. It is very important for high-ranking officers to realise the emotional stress that these grassroots-level officers go through on a daily basis. Nothing is currently done to empower them. I personally find this extremely disturbing. Every employee at the Child Protection Force has access to a psychologist or alternative therapist, if we feel overwhelmed with the work we do. Feeling overwhelmed with this type of work is normal, but we must make sure that we have access to mental health assistance. “I myself have an alternative therapist that I speak to once a month or once in two months. This is exactly what is needed for these officers as well. I only mentioned the police officers here; however, there are a lot of actors within this grassroots level. They are probation officers, district national child protection officers, early childhood development officers, child rights protection officers, etc. As you can see with the number of officers available, the systems are already in place; however, there is a massive challenge with regard to the implementation of the actual work or the law. “The only way forward is to allocate more resources to empower these officers. It is my personal opinion that resource allocation should start from the bottom up, at least for this sector of state workers. There are some very good officers that need to be motivated urgently, before they lose hope and leave. I personally know some of them. Currently, resource allocation is distributed from top to bottom. If we need to see useful change happening, I believe that this has to be overturned.”Gaps and inadequacies A 2017 study conducted by the think tank Verité Research and commissioned by the United Nations Children’s Fund (UNICEF), titled “A Legal and Institutional Assessment of Sri Lanka’s Justice System for Children” pointed out several inadequacies in Sri Lanka’s juvenile justice system. The report mainly analysed the legal and institutional challenges to the effective administration of justice for children, and focused on analysing the gap between the prevailing international standards and the domestic framework on justice for children, and assessing the performance of key institutions involved in the provision of specialised justice-related services for children. In addition, it presented recommendations to strengthen the administration of justice for children from a legislative, policy, and institutional standpoint, as well as a mapping of those recommendations in terms of their impact and solvability in the context of Sri Lanka’s administration of justice for children. With regard to the legal gaps existing in Sri Lanka’s juvenile legal system, the report noted that the country’s domestic framework on justice for children falls short of international best practices in certain areas, and that such shortfalls include the failure to stipulate a uniform definition of a child, and an internationally acceptable age of minimum criminal responsibility; consideration of the deprivation of a child’s liberty being treated as a matter of last resort; prioritising the diversion of children away from the formal justice system; and distinguishing the responses applicable to children in conflict with the law and children in need of care and protection.Institutional analysis focused on several institutions, including the Police, the Attorney General’s (AG’s) Department, the JMOs, the courts, the Probation and Child Care Services Department, and the NCPA, and assessed three factors, namely, the institution of child-friendly processes, i.e. institutional processes are developed in a manner that secures the best interests of children; adequate resources to perform functions, i.e. the institution has sufficient technological, financial, and human resources to perform its intended functions; and technical competency, i.e. officials attached to the institution are trained and regularly meet the requirements of the administration of justice for children.The institutional analysis had found several challenges pertaining to the administration of justice for children, i.e. the failure to prioritise the diversion of children away from the formal justice system; the weak implementation of existing child specific processes; the lack of differential treatment afforded to children that are victims, and children in conflict with the law; human resource constraints, both attitudinal and capacity-related constraints, prevailing in the children’s justice system; weak technical training and awareness on the application of the best interests of the child amongst professionals engaged in the justice sector; and the lack of prioritisation on addressing the root causes of offending behaviour and vulnerability in children.The recommendations, which were presented on the basis of the findings of the study, include, passing the Children (Judicial Protection) Bill subject to certain amendments; amending the Evidence Ordinance, No. 14 of 1895 to permit child witnesses to be cross-examined via closed-circuit television; amending the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 to permit a child victim or witness of crime to be cross-examined via contemporaneous audio visual linkages; amending the Penal Code, No. 2 of 1883 to increase the minimum age of criminality to 12 years of age; amending the Youthful Offenders (Training Schools) Ordinance to define a youthful person as a person between the ages of 18 and 22 years; making police stations more child friendly and ensuring that police stations are staffed with at least one female plain clothes officer that is adequately trained in child protection; diverting children from the criminal justice system using Section 114 of the Code of Criminal Procedure Act, No. 15 of 1979 and the Mediation Boards Act, No. 72 of 1988; using alternative dispute resolution methods in instances of alleged statutory rape where the victim is over 15 years of age and the perpetrator is under 19 years of age; the Supreme Court (SC) issuing rules regarding juvenile justice procedures which guarantee that children are entitled to basic rights and standards in the context of juvenile justice administration; and issuing a circular instructing magistrates and judges to order institutionalisation of a child only as a matter of last resort, thereby diverting children from the formal justice process.In addition, it recommended requiring all criminal justice institutions to have a separate area for children designed in a child-friendly manner and overseen by plain clothes officers, developing child-friendly documentation across the justice system including the use of child-specific forms and the use of language appropriate for children, tracking the wellbeing of children in the penal chain with a wellbeing index to monitor children’s psychological, social, and educational conditions, creating a database maintained and operated by the NCPA to track and monitor children within the justice system, and conducting in-service training programmes for identified officials within the juvenile justice system, i.e. police officers, magistrates, and officers working in child care institutions.International laws and regulationsThe foremost international law pertaining to children’s civil, political, social, and economic rights is the UNCRC, and Article 37 and 40 of the UNCRC focus on the justice system applicable to children and the State’s responsibility in that connection. Article 37 states that state parties should ensure that no child is subjected to torture or other cruel, inhuman or degrading treatment or punishment. It also says that capital punishment or life imprisonment without the possibility of release should not be imposed for offences committed by children (CRC recognises persons under the age of 18 years as a child). Moreover, it states that no child should be deprived of a child’s liberty unlawfully or arbitrarily, and that an arrest, detention, or imprisonment of a child, should be in conformity with the law and should be used only as a measure of last resort and for the shortest appropriate period of time. Article 37 further notes that state parties have a responsibility to ensure that every child deprived of liberty is treated with humanity and respect, and in a manner which takes into account the needs of persons of the child’s age. CRC’s Article 40 stipulates that state parties must recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law, to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others, and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming of a constructive role in society. To achieve that, the CRC notes, state parties should ensure that, no child shall be alleged as, be accused of, or recognised as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed.Moreover, it emphasises the importance of ensuring several guarantees for every child who has been alleged as, or accused of, having infringed the penal law. These include, the child to be presumed innocent until proven guilty according to the law; to be informed promptly and directly of the charges against the child, and, if appropriate, through the child’s parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of the child’s defence; not to be compelled to give testimony or to confess guilt; to have the free assistance of an interpreter if the child cannot understand or speak the language used; and to have the child’s privacy fully respected at all stages of the proceedings.As the country moves forward, archaic laws, regulations, and practices too need to be changed to match the present, and this is particularly important when it comes to children, due to the impact legal proceedings can have on their future.The Ministry’s efforts at amending laws affecting children are admirable. However, as former NCPA Chairperson De Livera said, in addition to amending laws, attention must also be paid to practical aspects relating to the implementation of these laws on the part of the justice system as well as the law enforcement authorities.