Corporal punishment normalises violence, disregards, and undermines the integrity, autonomy, and dignity of children, and inflicts trauma in them, which in turn is reflected in unhealthy and disruptive behaviour as adults, the Supreme Court (SC) noted. The SC noted thus in the case “H.W. Karunapala and Others v. J.P.K. Siriwardhana and Others (SC/FR/97/2017)”, where the judgement was penned by Justice S. Thurairaja PC and was joined by Justice Sisira J. de Abrew and Justice Murdu N.B. Fernando PC. The SC, in its judgement, explained corporal punishment and the origin of child protection laws.   Applicable legal regime   UNCRC Sri Lanka signed the United Nations Convention on the Rights of the Child (UNCRC) in January 1990, and ratified it in July 1991. The Government also formulated the Children’s Charter in 1992. In 2006, the Committee on the Rights of the Child, during its 42nd Session, issued the “General Comment Number Eight”, which focused on the right of the child to protection from corporal punishment, and other cruel or degrading forms of punishment. The General Comment No. 8 to the UNCRC in Paragraph 47 recognises that “The Convention asserts the status of the child as an individual person and holder of human rights. The child is not a possession of parents, nor of the State, nor simply an object of concern”. Article 28(2) of the UNCRC on the child’s right to education states: “States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.” Article 28, as noted by Justice Thurairaja PC, while recognising the need for children to, where necessary, face disciplinary actions in schools, however allows for no exception to deviate from the standard imposed by the Convention in avoiding any form of physical or mental violence. This position is further supported by Article 19 of the Treaty, which states: “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s), or any other person who has the care of the child.” Paragraph 11 of General Comment No. 8 describes corporal punishment as: “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) 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, scratching, pinching, biting, pulling hair, or boxing ears, forcing to stay in uncomfortable positions, burning, scalding, or forced ingestion (for example, washing mouths out with soap, or forcing to swallow hot spices). 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, punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares, or ridicules.” It is therefore, Justice Thurairaja PC points out, not a point of contention that the UNCRC stands strictly against corporal punishment and that the UNCRC cannot be interpreted as being supportive of corporal punishment of any form.   Penal Code and Amendments The Penal Code, No. 2 of 1883 (Principle Enactment) in discussing criminal force has stated in Section 341 that any person who intentionally uses force on any person without the consent of the other person, “in order for the committing of any offence, or intending illegally by the use of such force to cause, or knowing it to be likely that by the use of such force he will illegally cause injury, fear, or annoyance to the person to whom the force is used, is said to use criminal force to that other”.  Illustration (i) under the same Section, illustrates capital punishment as follows: “A, a schoolmaster, in the reasonable exercise of his discretion as master, flogs B, one of his scholars. A does not use criminal force to B, because, although A intends to cause fear and annoyance to B, he does not use force illegally.” As Justice Thurairaja PC notes, even though the above Provision and Illustration have not yet been repealed, the current approach considers such to be archaic. The Penal Code (Amendment) Act, No. 22 of 1995, inserted a Section operative as Section 308A of the Principle Enactment as follows: “(1) Whoever, having the custody, charge or care of any person under 18 years of age, wilfully assaults, ill-treats, neglects, or abandons such person or causes or procures such person to be assaulted, ill-treated, neglected, or abandoned in a manner likely to cause him suffering or injury to health (including injury to, or loss of sight, or hearing, or limb or organ of the body, or any mental derangement), commits the offence of cruelty to children; (2) Whoever commits the offence of cruelty to children shall on conviction be punished with imprisonment of either description for a term not less than two years and not exceeding 10 years and may also be punished with fine and be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person." Further, the Penal Code (Amendment) Act, No. 16 of 2006 added the following Explanation for the above Section: "injuries include psychological or mental trauma." In addition to the act of the infliction of harm upon a child, according to Justice Thurairaja PC, a secondary aspect of the offence is that of negligence. Section 308A includes negligence that causes suffering to the minor. In this instance, within the context of school, negligence, as per Justice Thurairaja PC, includes teachers and principals, being aware of the occurrence of corporal punishment, continuously undermining the pain of the child who brings the matter up to their attention, and providing no medical assistance despite communicating the pain.  The concept of “in loco parentis” which essentially stands to mean “in the place of parents”, as Justice Thurairaj PC explains, imposes an obligation upon teachers to address a child’s injuries and to provide assistance and care, as otherwise, it constitutes a failure of their duty. It means, as noted by Justice Thurairaja PC, the best interest of the child, as opposed to the convenience and best interest of the teachers.   Education Ministry Circulars Circular No. 12/2016 issued by the Ministry of Education on 29 April, 2016, which was enforced with effect from 2 May 2016, superseding the provisions of the Circular No. 17/2005 on securing discipline within the school, is the current Circular with regard to corporal punishment within schools. This follows much of the same material available in the previous Circular with the addition of provisions on the Disciplinary Board of a school. The Circular recognises that the duties and nature of responsibility borne by the teachers comes from the concept of “in loco parentis”, where, as educators, teachers hold a primary and fundamental responsibility in ensuring the safety of children, a responsibility pertaining to which, as the Ministry of Education has expressly clarified, corporal punishment is against. The Circular further states that groups such as medical officers, psychologists, and humanitarians have explicated corporal punishment as a form of chastisement that causes physical pain. They have further stated that it would negatively affect the learning process of students, and that in turn their tendency to show antisocial acts would increase, which could thereby result in severe distress.  Therefore, since there is minimum evidence to confirm that student behaviour in the classroom has been developed through such chastisement, it is to be deemed a useless process. The Circular in Paragraph 2.2.1 lists the negative outcomes of the practice of corporal punishment revealed through various studies. Section 2.3.2 offers demonstrations of alternative non-violent methods of discipline in place of corporal punishment (physical violence), particular those in Subsections ii to iv, given the nature of the error.   Legal and disciplinary action Adults, Justice Thurairaja PC observed, are protected by law from similar incidents, as it would amount to the criminal use of force, assault, and other crimes against the person. Therefore, children as minors and vulnerable members of society, when hit, injured, and traumatised in the name of discipline or punishment, must not be left defenceless and unheard when faced with such violence, Justice Thurairaja PC pointed out, noting further that normalising violence is unacceptable, as this leaves voiceless minor victims, vulnerable in the face of mental and physical violence and trauma. Section 2.4 of the Circular notes the repercussions of such and possible legal redress against teachers who punish students, even when it is done so with the objective of maintaining discipline. Therefore, even when used as a method of disciplinary action, it may lead to legal action, thereby holding those administering such, liable for violations of and non-adherence to the guidelines in the Circular. The Circular expressly recognises that a cause of action may arise over the infringement of Fundamental Rights in terms of Article 11 (freedom from torture or cruel, inhuman or degrading treatment or punishment) of the Constitution. Further, it is stated that a course of action may arise over the offence of cruelty to children in terms of Section 3 of the Penal Code (Amendment) Act, No. 22 of 1995 and Section 308A of the Penal Code.  If it is advised by the Attorney General that legal action can be taken in that regard, having considered the facts submitted at the investigation, a case can be instituted against the relevant offenders. Finally, if it is proved at the disciplinary inquiries conducted by the authorities of the Ministry of Education over the imposition of corporal punishment, disciplinary actions can be taken in terms of the Establishments Code.   Corporal punishment and discipline: a cultural perspective The rejection of corporal punishment, Justice Thurairaja PC emphasises, does not mean the rejection of the concept of discipline. Recognising the importance of discipline in this regard, he further explained: “It must be understood that the healthy development of a child depends on parents and adults providing the necessary guidance, in line with the child’s evolving capacities in order to assist their growth towards responsible life in society. An individual’s understanding of discipline, respect for rules, and a healthy attitude towards a non-violent society are integral attributes that must be instilled from a young age. However, in civilised society, these goals are to be accomplished using alternative forms of discipline which do not inflict physical or mental harm.” The archaic attitude towards the punishment of children of “spare the rod and spoil the child“, prevails strongly in the Sri Lankan culture, Justice Thurairaja PC noted, quoting the colloquial saying: “The child raised without beating and the curry made without stirring is useless.” This view, Justice Thurairaja PC elaborated, did not essentially originate from Sri Lankan culture. “In Sri Lanka, there is ample evidence in relation to laws introduced by Kings in order to promote a non-violent, benevolent society that raises and nurtures children. In reference to the historical record, the Chulawamsa, it says that during the Anuradhapura and Polonnaruwa eras, Sri Lanka had two Kings who introduced legislation explicitly stating that there should be no physical punishment on both adults and children. Therefore, the Sri Lankan culture was such that it had a negative view on corporal punishment,” he stated. It was with the advent of colonialism, Justice Thurairaja PC observed, that corporal punishment established itself as a practice in Sri Lanka.   “Corporal punishment was a prevalent method of punishment used during the colonial era of occupation, brought into practice from public school practices from their respective countries, thereby trickling into the attitudes and daily practices of Sri Lankan citizens,” Justice Thurairaja PC explained. Corporal punishment as a method of discipline, though ineffective, is used by adults, according to Justice Thurairaja PC, for the simple reason that physical violence is more likely to bring instant compliance; however, this method of correction teaches children to fear violence and normalises violence as opposed to bringing any sense of understanding of the wrong committed or of the true societal value of discipline, as the impugned behaviour is avoided in the future not due to the understanding of the wrong committed, but due to the trauma of violence. The General Comment No. 8 to the UNCRC recognises that the defence of “lawful” or “reasonable” chastisement or correction has formed part of the English common law for centuries, as has a “right of correction” in the French law. However, at such time, the same defence was available to justify the chastisement of wives, slaves and servants, which clearly demonstrates that this defence is long outdated. The irony therefore, Justice Thurairaja PC mused, is in that these Western nations recognised the detrimental nature of corporal punishment and have abolished such practices well before Sri Lankan culture started to recognise the necessity of reforming societal attitudes towards corporal punishment; whereas, Sri Lanka is still dearly holding on to this outdated and disproven practice from the Western world – that of corporal punishment.