It is often said that children are the soul of a nation. Each child is unique in nature, has an individual personality and character, but all children need help to mature and develop to become complete persons from the perspectives of physical, emotional and social maturity.
From an unarticulated sense of injustice in childhood, to the drafting of complex laws and systems to preserve justice in adulthood, Justice is a concept that pervades the human being from early childhood to adulthood.
When a crime is committed the criminal must be found, convicted, punished and rehabilitated, the victim must be compensated and witnesses must be protected. This is the essence of any criminal justice system.
The witnesses to the crime, the investigator, you the Judges are all actors in that great play that is called the Criminal Justice System.
The flipside of the coin of the right to justice is the right to be free from impunity. In this context the phrase justice system infers much more than theoretical judicial pronouncements; rather it is used to span the entire gamut of the legal system from prosecutions to sentencing and thence to practical implementation of that sentence. Safeguarding the independence of the judiciary as well as preservation of the credibility of the prosecutorial system is therefore, a central point of concern.
Sri Lanka ratified the UN Convention of the rights of the Child (CRC) within two years after its adoption by the UN General Assembly. The CRC is the first legally binding international instrument to incorporate the full range of human rights—civil, cultural, economic, political and social rights of children. It also recognises the inherent needs of children and their right to protection by both the State and the community in general.
It is widely believed that the CRC is the most complete statement of children’s rights ever produced and is also the most widely-ratified international human rights treaty in history. As a matter of fact only three countries in the world are yet to ratify the CRC.
Sri Lanka as a country moving steadily towards an era of recovery and growth it is undeniable that children should be given their due recognition, so as to ensure that the future of our country is not forgotten in the race towards development.
It is in this context of considering the best interests of the child and the protection of the rights of the child that Sri Lanka has introduced large number of policy initiatives and legal reforms over a long period of time. It is relevant at this stage to note that the 1978 Constitution has special provision allowing the bringing in special laws or executive action for the advancement of children notwithstanding the equality provision in Article 12.
According to the provisional statistics released by the Department of Census & Statistics this month the total number of children less than 15 years of age in Sri Lanka is 5.23 million out of a total population of 20.26 million people. This shows that more than a quarter of our population are children aged less than 15 years. The percentage will increase if the number of children between the ages of 15-18 is also added up to the total.
These figures clearly show the extent of the burden the Sri Lankan State shouldering to provide care, development and protection to children in terms of responsibility and the financial outlay. One positive feature in this respect is that the broad acceptance across political divide in the country to consider financial costs incurred for the benefit of children as future investment. The people of Sri Lanka too have always endorsed all measures taken on behalf of children.
Ministry of Justice plays a pivotal role in advancing the interest of children. The tasks of the Ministry are multi-faceted as the Justice sector plays a significant role in this field. Children enter within the fold of justice system in numerous ways. Frequently children are victims or witnesses of crime, in need of care and protection or as juvenile offenders. In all these situations children require special consideration to be paid to them, as they belong to some of the most vulnerable groups.
In this regard the Ministry together with the Attorney General’s Department, Department of Police and the Ministry of Health has launched the ‘National project for the expeditious processing and passage of cases of child abuse by the criminal justice system of Sri Lanka and for the prevention of secondary victimization of victims of child abuse’. This project seeks to give priority to child abuse cases in the several phases of the criminal justice system.
This new initiative is intended to expedite the processing and disposal of cases of child abuse in less than one year from the date of the complaint to the police. This is sought to be achieved by enlisting the support and cooperation of all stakeholders involved in the process of criminal justice. Primarily the project aims at expediting the process of institution of criminal proceedings, launching of the trial and the progress and conclusion.
The project also aims at ensuring the prevention of secondary victimization of child victims of crime when they participate in the criminal justice system, by encouraging the adoption of child friendly approaches at the criminal and forensic investigations phase and during judicial proceedings.
Furthermore, since the national project has been designed in concurrence with the Ministry of Health and members of the Judicial Medical Service, the transmission of the Medico Legal Examination Form and the Medico Legal Report to the Attorney General’s Department from the Judicial Medical Officer has been streamlined in order to prevent delays in the transmission of these forms which in the past has contributed to delay consideration and speedy disposal of cases of child abuse.
The Ministry in considering bringing in necessary law reforms with a view to provide for a comprehensive legal framework for child protection has also give serious consideration to observations and recommendations made by the Juvenile Justice Committee chaired by Hon. Justice Shiranee Tilakewardena and the Family Law Reforms Committee chaired by Prof. Savithri Goonasekara.
Let me also take this opportunity to share with you the basic details of the draft law entitled Children (Judicial Protection) Act designed to provide for the protection of children in need of care and protection and of children in conflict with the law. The draft law clearly sets out number of guiding principles such as best interest of the child, well being of the child and to ascertain the wishes and feelings of the child in all circumstances. According to the draft law the guiding principles shall govern “every court, public or private institution and any other authority which is called upon to make any decision concerning a child in need of care and protection or a child in conflict with the law.”
The proposed law also seeks to repeal and replace the existing Children and Young Persons Ordinance which was enacted in the year 1939 and make provisions to give effect to such international standards such as those recommendations made by the UN Committee on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines).
One of the unique features of the draft law is the proposal to establish Children Magistrate’s Courts conferring jurisdiction to hear any case against a child in conflict with the law. Chapter III of the draft law deals with the ‘child in conflict with the law’ which further aims to avoid the stigma suffered by children who are termed as Juvenile Offenders or Juvenile Delinquents.
Copies of the draft law have been sent to all stakeholder agencies of State such as the Ministry of Child Development and Women’s Affairs, National Child Protection Authority and Department of Probation and Child Care for their observations.
The first matter is the proposed Contempt of Court Act. This idea of enacting a law relating to contempt of court was mooted many years back by the Law Commission of Sri Lanka. According to the Commission the only existing provision regulating the trail of offences for contempt of court is found in section 792 of the Code of Civil Procedure.
However the superior courts of Sri Lanka appears to have followed different procedure in dealing with the issue of contempt of court. The Supreme Court for instance follows a procedure derived from the inherent jurisdiction of the court.
The introduction of the contempt of court legislation is based on the principle of enacting legislation applicable to all courts of Sri Lanka setting out a uniform procedure to be followed for the trial of contempt of court. The draft law defines the offence of contempt of court and divides the offence to two categories of “criminal contempt and “civil contempt.”
Ministry of Justice is also mindful of the dangers of a stringent contempt of court law which will act as a barrier to the development of healthy and vibrant culture of jurisprudence. Therefore specific provisions have been included in the draft law to encourage freedom of expression, information and publication as set out in the Constitution. The law also seeks to protect publication or reporting of legal proceedings and fair comments or criticism of a case that has been heard and decided or pending before court.
There is also a long felt need to formulate a clearer legal framework for sentencing and bring in greater clarity, fairness and consistency to the process which will eventually benefit all concerned. For this purpose the Ministry has enlisted the services of the Federal Attorney Generals Department of Australia. The Ministry is already in possession of a draft policy document and a basic draft law which will be discussed with all stakeholders in the near future
Draft law on sentencing will include a definition of the general principle of sentencing, the aggravating and mitigating factors, options for sentencing and technical matters and the creation of a data base of judgments both local and international to provide guidelines on sentencing which in my view will be a great boon to all judges of courts. One of the salient features of the proposed policy paper is to create separate provisions to deal with children in conflict and physically impaired people. Another important feature is to establish a Sentencing Advisory Council (SAC) to overview the entire policy framework on sentencing periodically.