The Second Child Abuser Of Sri Lanka: The Judiciary
I think all of you have heard about Dr Tush Wickramanayaka’s struggle against corporal punishment. Few days ago, the highest court of the land deemed her fundamental rights petition, seeking justice for her daughter subjected to corporal punishment at Gateway International School, not worthy of leave to proceed. If an ex-Prime Minister’s daughter, a “privileged woman” by Sri Lankan norms, cannot negotiate even a crumb of justice from the judiciary for an eleven year old child, we can only imagine the plight of the “commoner” seeking justice.
Dr. Tushara Wickramanayaka
On March 22, 2019, the Supreme Court has refused granting leave to proceed Dr Tush Wickramanayaka’s fundamental rights case seeking justice for her daughter.
In this backdrop, this is the Part 2 of my previous article on the subject of corporal punishmentand child abuse titled “First Child Abuser Of Sri Lanka”.
Child Abuse – How Big Is The Problem?
On 24th March 1996, Prof Harendra De Silva, renowned paediatrician delivered a keynote address at the Annual Sessions of the Sri Lanka Medical Association (SLMA) where Dr. Tara de Mel was the Secretary to SLMA and was also an advisor to President Chandrika Kumaratunga.
Since the early 90s Prof Harendra De Silva has been an advocate for child rights in general. Upon the request of a group of media personnel he initiated a series of public lectures and media interviews on the subject. Independent of De Silva, certain NGOs such as Don Bosco and PEACE had lobbied President Kumaratunga against sexual exploitation of children by tourists and issues on child soldiers.
Chandrika Bandaranaike Kumaratunga – Pioneer Of Reform
It was almost always the natural tendency of President Kumaratunga to spend most of her office in self-destructive political practice which earned her the disdain among her colleagues and people, rapidly declining her initially unprecedented popularity to the pits of the political earth. However, the child rights activists would forever remember her as the one politician who had the vision to initiate the ground breaking policy reforms in the sphere of child rights.
*In 1994, as the Chief Minister of the Western Province, Chandrika Bandaranaike Kumaratunga, took up the issue of sexual exploitation of children by foreigners. Later as President she spearheaded law reforms that resulted in the Penal Code (amendment) Act No. 22 of 1995. The highlight of the amendment was a provision that strengthened the law governing sexual offences and offences against children. The amendment concentrated on defining offences that were previously not defined or described adequately. Further they increased sentences, and included mandatory jail sentences for some offences.
Chandrika Kumaratunga
Professor Harendra De Silva – Unsung Hero
In December 1996, President Kumaratunga appointed a task force on child protection, chaired by Prof Harendra De Silva. De Silva’s commitment and expert contribution was largely considered a tipping point of the Child Rights discourse in Sri Lanka.
* The task force recommended several legal amendments, including the establishment of a National Child Protection Authority (NCPA). In addition, the task force recommended a number of amendments to existing law that were subsequently enacted and are now in force. These are:
* The new amendment to the judicature act dispensed with the non-summary inquiry in the case of statutory rape (the rape of children below sixteen years of age). This reduced the duration of the court procedure that the child must undergo. Previously practiced preliminary hearing was often protracted and sometimes psychologically traumatised the child.
* Expansion of the magistrate’s authority to detain alleged perpetrators of child abuse (Code of Criminal Procedure Amendment, Act No. 28 of 1998). Previously, the magistrate was only empowered to detain an alleged perpetrator of child abuse for investigative purposes without a warrant for one day. The new amendment expanded this period of investigative detention to three days. It also gave priority to cases of child abuse and introduced a referral form for victims of child abuse.
* Increasing the scope of prohibited conduct. For example, Act No. 29 of 1998 amended the penal code to prohibit the use of children for purposes of begging, procuring sexual intercourse, and trafficking in restricted articles. The amended penal code also imposes a legal obligation on developers of films and photographs to inform the police of indecent or obscene material involving children.
* The presidential task force recommended other legal amendments that are now in the process of being enacted and implemented. One proposed amendment was the Evidence Ordinance that would admit video evidence of’ a child witness’s preliminary interview. Other recommendations were, dispensing with the requirement that a child witness take an oath and enabling age indication on a doctor’s certificate to serve as prima facie proof of age where age is relevant in a case and there is no better evidence available.
Prof. Harendra de Silva
Birth Of The National Child Protection Authority (NCPA)
* One of the most important recommendations of the presidential task force on child protection was the establishment of a National Child Protection Authority (NCPA). The NCPA bill was presented in Parliament by the Minister of Justice in August 1998 and was passed unanimously in November 1998 (NCPA Act’, 1998). The act was gazetted in January 1999, and the board of the NCPA was appointed in June 1999. Prof Harendra de Silva was its first chairman.