The problem with our justice system, in general and over the years, has been its blatant lack of regard for the specific needs of children
Children, taken initially as flouters of the law, were transformed into victims via a justice system
Corporal punishment, however worrisome it is to me, belongs by default to the private sphere, encompassing student leaders, teachers, principals, and entire institutions
Last Sunday (September 10), I woke up earlier than my mother, who woke up so late that breakfast delayed meant my schedule for the day would be delayed. I don’t resolve to travel during weekends; those are the only two days during the week that I spend at home. But September 10, no different to all other Sundays in September, was special. To me. Somewhere in Colombo, an organisation was about to hold its inaugural forum. This forum, I got to more than an hour after it started. What I heard and what had I missed, despite the inconvenience of a late, hurried breakfast, has stuck with me to this day, because I had known that this organisation would be initiated a few months back.
Before that, though, a perusal of some facts and figures. Records in 2012 show 758 children who were sexually molested and another 745 who were sexually abused. There were nine cases of incest by a family member, in addition 22 cases of child murders, 54 child abductions, 10 attempted murders, and 247 cases of child assault. From 2011 to 2012, the National Child Protection Agency (NCPA) collected more than 20,000 complaints, an almost unprecedented amount. Why do these matter? Because this organization, through that forum on Sunday, seeks to combat instances of gross neglect, wanton abuse, and irrational complacency that make up our justice system when it comes to our number one priority: our children, our next generation.
There are fundamental differences between fairness and expedience with respect to the legal system of a country. This approximates to the wider differences between an individual and a collective in any given society: put simply, the interests of the former can and will be weighed against the interests of the latter, which is why we talk of the greater good and the lesser evil. The conflict or rather conflicts between these two can and must be balanced out, so as to ensure a) due process and b) fair hearings for everyone. What gets missed out here, however, is that perpetrators are often victims of abuse, and the victims of today can well become the perpetrators of tomorrow.
The problem with our justice system, in general and over the years, has been its blatant lack of regard for the specific needs of children. On two fronts at least, our children have become conditioned to accept, to conform, to set aside those notions of individuality that make up who they are: the cane and the court.
I am less interested in the former than I am in the latter, but for the purposes of my column I will delve through both. Beginning with this: in a culture that privileges deference to and absolution of ultimate authority (whatever that authority may be), children are inadvertently taught about two kinds of citizens: those who wield the baton (the perpetrators) and those who resist it (the victims). The problem, obviously, is that the fine line between these two can, and more often than not does, get blurred.
Take the problem of corporal punishment. Our statutes are discernibly ambivalent over the issue. Article 82 of the Penal Code of 1883, for instance, absolves a guardian (or any person acting as such lawfully) when he or she inflicts punishment on a child, if that act of inflicting the punishment is committed “in good faith.”
Now “in good faith” is probably one of the vaguest legal phrases out there. Despite the later reforms which invaded the Penal Code (not least being Article 308A, which explicitly provided for the offence of cruelty against children), there were subtle exceptions that shielded teachers whenever they chose to inflict punishment (Article 314, for instance, which is about the offence of “criminal force”, conveniently inserts a caveat: a schoolmaster in the “reasonable exercise of his discretion as master” who flogs a student is not, for all intents and purposes, committing that offence).
It’s this concurrent, confused attitude of support for and opposition to corporal punishment (whether inflicted by hand or through a weapon) which has coloured the contemporary discourse on the topic for so long. Even now, it’s so confused that all it has done is sustain a dichotomy within our society.
Let’s not forget that no less a person than the president, in a speech delivered last year, gave an instance where he had been caned for a mistake committed by another child. A friend of mine, having heard this, informed me that when such erroneous crimes go unpunished, they add to a society where even upholders of the law either punish suspected offenders or blow trivial misdemeanours out of proportion and torture those suspects. A quick perusal of Basil Fernando’s harrowing Narrative of Justice in Sri Lanka will convince anyone that this country, a paradise to many and a hellhole to some, is chock-a-block with glaring instances of disproportionate punishments.
So while we’re at it, here are some other points. Pertinent points. Like the fact that the sections in the Penal Code absolving teachers were authored by Englishmen, not “natives.” Or the fact that inasmuch as various Circulars issued by those in charge of our education policy (in particular, the Circulars of 1907 and of 1927, the latter being the first such issued by the Education Department on the subject) regulated the use of the cane and limited it to glaring instances of indiscipline, calls for abolition came much, much later, and could hardly be said to be “Westernised.” That is why some believe that the culture of caning students excessively, like our puritanical attitude to sex, divorce, and love, was a result of “enlightened” laws drafted by Victorian men.
Here’s what I wrote last year on this; they may have been, or are you for the calls for reform made by bodies that have evolved considerably from the Victorian Era? Or in still other words, would you prefer to remain Westernised in the Victorian sense of that term or Westernised in the modern, civilised sense of that term?”
That final question, despite the fact that I abhor simplification of any sort in whatever conversation and argument, is what makes out for the resolution of this debate.
Corporal punishment, however worrisome it is to me, belongs by default to the private sphere, encompassing student leaders, teachers, principals, and entire institutions. The other problem belongs to the public sphere, and therefore bothers me even more; the lack of a proper system of juvenile justice in this country.
Before I move into that issue (which I leave for next week’s column), though, a word about that forum I attended last Sunday. Former President Chandrika Kumaratunga, invited as the Chief Guest, and in response to the statistic that one in four children in the country have been abused, exclaimed, surprised despite herself and her own experience in the field (it was under her regime that the NCPA was formed, let’s not forget). “Perfect summing up,” I thought to myself, as I reflected on the many instances in which children, taken initially as flouters of the law, were transformed into victims via a justice system that, following a rather misconceived education sector that confuses unconditional deference for respect, treats them like the adults they are not. The organisation behind that forum, incidentally, was the Child Protection Force. More on that, and the main objectives it seeks to achieve, next week.