By SANDIL MALLIKARACHCHI
The Sri Lankan law does clearly define the term ‘child’. From this and other factors, many issues arise, which deeply concern the future of our nation. Juvenile delinquency is one such matter that warrants our attention and should be dealt with carefully.
Crimes committed by persons under the legal age of 18, may range from petty thefts, trespassing, and vandalism, to more serious offences such as drug abuse, assault, and even murder. Deficient upbringing, domestic abuse, peer influence, intellectual disability, and mental illness are common elements that drive minors towards crime. A majority of such acts tend to be unplanned, opportunistic, and attention-seeking.
Young offenders are usually tried at juvenile courts, which were created on the understanding that youths did not have the rational and cognitive development that adults had and required more protection. Thus, it has been the international practice to resort to restorative means of justice, rather than retributive measures, when minors are concerned. Children are ideally penalised less than the adults who are found guilty on the same charge. The justifying philosophy is the same that prevents children from voting, owning property, and entering into legally binding contracts.
Sri Lanka has been progressive in enacting legislative reforms to ensure a fair judiciary procedure for juvenile offenders. The statement is reinstated by the Children (Judicial Protection) Bill (CJPB), which has been drafted by the Ministry of Justice, and several other similar acts. However, certain legal clauses and practices continue to exist, which impede the effectiveness of Sri Lanka’s youth justice system.
Questionable Laws, Practices, and Technicalities
There are only two specialised Juvenile Courts in Sri Lanka. This inadequacy leads to a majority of children’s cases being heard in ordinary courts, that might not be so susceptible to the needs of children. The Penal Code does not recognise the distinction between the age at the time of the offence and the age in which the verdict is passed. Sans the jargon, this means that crimes a person committed as a child, are often tried not so different from those of an adult. The gravity of the same is to be realised with regards to numerous persons that have been imprisoned for life and sentenced to death, for crimes they committed, as a person below the legal age of 18.
If it were not for the increasing backlog in our courtrooms, which often sees years passing between the commencement of a trial and the passing of the verdict, those sentences would have been considerably reduced.
Our law fails to prioritise the diversion of children away from the formal justice system. Juvenile offenders are subjected to increased institutionalisation, often at the expense of their social and psychological well-being. Even though international communities have been continuously advancing legislation to ensure that children are not deprived of their liberty as a last resort, in the local context institutionalisation is not particularly resisted. In 2013, there were over 14,000 children institutionalised across the country. As Sri Lanka has ratified agreements such as the Convention on the Rights of the Child (CRC), we are further obliged to incorporate the progressive international practices into our frameworks.
The future of a child that is sentenced to a remand home or some other institution, is a matter that seldom makes it to our roundtables. At the end of such a sentence, the child’s education is irreparably damaged. This is more often than not, the beginning of an unavoidable descent to the world of crime, as their chances of decent employment opportunities are minimal. Furthermore, those children do not come out to a welcoming society, and in most cases are severely marginalised by the families, teachers and peers.
The raft between prevailing global standards and the domestic framework for children’s justice, is further evident in the area of pre-trial detention. A Juvenile Court can remand an alleged youth in a remand home or in the custody of a ‘fit person’ for a period not exceeding twenty-one days, to collect the information necessary to establish guilt. These time-limits do not align with the international frameworks, and give way to the possibility of children being unduly detained without sufficient oversight.
Under the Children and Young Persons Ordinance (CYPO) of the Sri Lankan law, a detention order by an approved or certified school lasts for three years, which is potentially longer than an adult’s detainment for an identical offence. CYPO does not require that a parent or a guardian be notified before a child is brought before a Magistrate. Moreover, law enforcement officers are not required to explain to a child the reasons for their arrest.
Human resource constraints in our juvenile justice institutions also raise several red flags. Police, Department of Probation and Child Care Services, and National Child Protection Authority are some of the establishments that frequently encounter children that clash with the law. Administrative capacities in those offices are often minimal, and Children’s and Women’s Desks are severely understaffed. This has been the cause for systematic delays in those offices, which in turn impedes the effectiveness of the Sri Lankan child justice system as a whole.
Even though child justice institutions are required to have a separate child-friendly area which is overseen by plain-clothes officers, this rarely happens in real life. The prevalent attitudes of the officers in the youth justice system can undoubtedly be subjected to improvement as well.
Legal reforms should be sought, especially bearing the purpose of judicial intervention in mind, which primarily is to prevent recidivism. It should also be noted that children are more susceptible to forms of rehabilitation than adults. A majority of persons that come to conflict with the law in their youth, grow up to be righteous citizens. Every step we take should be to hasten that process.
The Penal Code is recommended to be amended, so a line is drawn between the age of commission of a crime and the age in which the conviction is made. Developing an alternative legal framework to handle children in conflict with the law, without resorting to judicial proceedings, should be prioritised. It is strongly suggested that a circular be issued by the Judicial Services Commission that instructs magistrates and judges to order the institutionalisation of a child as a final recourse.
Limiting juvenile delinquency should be attempted by facilitating effective educational opportunities and counselling, stabilising family environments, and promoting community-based programmes. Perfunctory reforms that fail to address the root cause of the problem will only sanction further exacerbation of the same.
The attitudes of the policymakers towards international ratifications should also be subjected to change. Those agreements should not be viewed in terms of a burden. Effective compliance with such treaties will not only further the course of justice, but might as well be instrumental in soliciting additional international funding.
Law enforcement officials, prosecutors and social workers should be made aware of existing international standards concerning juvenile justice, and also should be trained to handle the sensitive issues that involve minors.
However, the areas focused in this brief article cannot be regarded as an exhaustive examination of every issue that falls under the scope of juvenile justice.
When a child reaches the point of consciously defying the law, something somewhere has undeniably gone wrong. The society is as reprehensible as the child is. The society of which, we are all inextricable constituents. Thus, it is our collective duty to push for lasting reforms towards a fairer law for all.
Perish without western science and medicine
The credit of elimination of many deadly diseases in the known history – smallpox, malaria and polio – goes to western science.
When the malaria epidemic raged in Sri Lanka, mainly in the Sabaragamuwa and northwestern provinces in the 1830s, nearly 80,000 people died out of a population of some six million. Sufferings of people were immense, and more than hunger, in some places there was no one to bury the dead. The leaders of the leftist movements at the time, took the lead in providing relief to the poor.
This is one of the first hand experiences of them, vividly explained in the book “Revolt in the Temple”, written in commemoration of the 2500 Buddha Jayanthi. The relief workers entered a village in Sabaragamuwa. No people could be seen, as most of them have either died and some had left the area. When they traced the village deeper, a cry of a child could be heard. It was a child sucking the breast of the dead mother. By the side of the mother was a dead elder child. In front of the house was a mound of soil, the grave of the father, who had died earlier.
Finally it was western science, quinine, not indigenous medicine, which rescued people.
I must hasten to add the following. When I returned after foreign training about 20 years ago, I was posted temporarily to a major hospital at Sabaragamuwa. After seeing quality healthcare abroad, it was shocking to see more than 25 newborn deaths per month. I, along with my senior female colleague (currently at Lady Ridgeway Colombo) got the JAICA Japanese project expedited and changed to the best standards. Finally, when we left, one year later, only one or two newborn deaths occurred per month. Very small babies were surviving and the quality of care was excellent. Now such care is available islandwide, thanks to western medicine (and free health service).
In both the above-mentioned examples, quality healthcare is due to the advancement of western science. The famous evolutionary biologist Professor Richard Dawkins, referring to the journal New Scientist, says, (available in YouTube,”try to understand science or you ….).
Even a bodhisathwa would suffer thirst or hunger depending on the place of birth, as per Buddhist teachings. The availability of western science and medicine for survival, is part of niyama dharma of Buddhism? (Anyone interested in niyama dhamma can browse the same).
Dr LAL RATNASIRI
Admission of medical students at the age of 18
I am writing this in response to the news item in your paper of 26 January 2021 under the caption, “GMOA seeks university admission for medical students at the age of 18”.
This communication from me is practically from the horse’s mouth; from someone who, so many eons ago in 1965, benefitted by being allowed the privilege of joining the Faculty of Medicine, University of Ceylon, as a novice Medical Student, at the tender age of 18 years and two months.
I sat the GCE (A/L) Examination in December 1964, at the age of 17 years and five months, offering the four subjects of Physics, Chemistry, Zoology and Botany. In or around March 1965 we had the Practical Examination in all those four subjects at the University of Ceylon in Reid Avenue. I think the results of the examination were released around July or August 1965. There were around 250 vacancies for medical students, 150 in the Faculty of Medicine Colombo and 100 in the Faculty of Medicine, Peradeniya. There were only two Faculties of Medicine at the time. I qualified to enter the Colombo Medical School with just four simple passes in the four subjects. In fact, although there were vacancies for 250, there were only around 220 students who had got through all four subjects. Even those with three passes with a credit or a distinction had managed to enrol for medical education.
I qualified with MBBS 2nd Class Honours at 23 years and one month of age and started working as an Intern Medical Officer at the Colombo General Hospital at the age of 23 years and two and a half months. From then onwards after many postgraduate examinations I became a fully qualified Specialist Consultant at the age of 30 years. I was in England for my postgraduate studies when I cleared the final hurdle of the MRCP in 1977. I returned to Sri Lanka in 1978 and was posted as a Specialist Consultant Paediatrician to the Badulla General Hospital at the age of 31 years. Thereafter, I was most fortunate to be allowed the dispensation to provide my services to the hospitals at Badulla, Ratnapura, Kurunegala, Kalubowila and the Lady Ridgeway Hospital, all for 29 years, till my retirement at the age of 60 years.
I am not writing this letter as a manifestation of ‘monkey praising his own tail’. Far from it. I am doing so to firstly be ever so grateful to the education systems of our motherland that provided a child from a very ordinary lower middle-class family, which barely managed to make ends meet, the opportunities that
were perhaps the birth right of every child. We were all equal and given the chance of a lifetime to excel in our respective fields. Some of us at least, managed to make good use of it. I do hope that I have, at least even partly, fulfilled my obligations to the people of this country in return for what was given to me on a platter by them.
The 1960s were well before the advent of computers. Dedicated men and women of the Ministry of Education would have toiled, even burning the midnight oil, to organise the GCE Advanced Level Examinations, correct answer scripts, arrange the practical examinations, tot up the marks and then finally release the results, all within just about six to seven months. Everything had to be done by hand and even the results had to be entered by hand. Yet for all that, they did it with such tremendous devotion and commitment that benefitted all of us. There would have been thousands of files with neatly entered details. There was only a Ministry of Education. There was no Ministry of Higher Education. For the government of the day, education was education; higher or otherwise. Funding was also for education. All those fine people who worked in that ministry saw to it that the youth got a break. We were all very much like their own children.
As was quite rightly pointed out by the GMOA, the current set of doctors are only able to qualify with the basic MBBS in their late twenties or even early thirties. Most of their potentially productive periods of youth are spent waiting for results or twiddling their thumbs and doing nothing at home before they could either enter a medical school or waiting to be posted as doctors even when they finally qualify. So much of very valuable time is lost in the entire process of Higher and University Education. In fact, in the late seventies when I was posted as the Specialist Consultant Paediatrician to the General Hospital Badulla, there were junior doctors such as House Officers and Senior House Officers in the hospital, who were older than I. An indirect effect of these delays is also the necessary postponement of marriage and the starting of their own families for many doctors, male and female. The lady doctors of rather advanced age could even have problems of reduced fertility and the real risk of congenital defects of the babies that are related to maternal age.
All of this is indeed a crime. None in any government in living memory has even seriously attempted to redress this appalling situation. With the facilities available today and with some decent leadership and proper organisation of the systems, it would not be a huge big deal to take things back to what it was during the halcyon sixties. All it would need would be an iron-willed commitment, embellished by unwavering enthusiasm. I am quite sure that there are capable people around who could make a real difference in such a context.
I have been ever so fortunate to have been afforded the opportunities that I was provided right throughout my childhood and youth. I have written many times before, extolling my gratitude and veneration to people such as Dr C. W. W. Kannangara and other persona, who were the designers, architects, facilitators and perpetuators of our free education system. I would love to see the very same opportunities, especially in university medical education, which I had, being made available to the youngsters of today. We owe it to our people and our youth to do so in a gesture of obligation to the future of this resplendent isle.
The GMOA has reportedly written to the President and the relevant Ministers of Government regarding the topic under discussion. I hope very much that some acolyte would be kind enough to show this letter to the very same legislators who wield such power which would be able to make a difference.
ECT: A toss between confrontation and compromise!
People placing their signatures on postcards during a protest campaign held by the railway unions on Monday against what they called a move to sell the East Container Terminal of the Colombo Port (Pic by Thushara Atapattu )
By I. P.C. MENDIS
States and Governments exist and coexist internationally on the basis of mutual trust, understanding, good-will and cooperation. If any state or government chooses to work outside these norms, it is normally classified as a Banana Republic and generally finds itself isolated with none to care for it. If they choose to be so isolated, they should be confident of going it alone or have clandestine backing of some super-power. North Korea and Cuba for example are virtual dictatorships/authoritarian and their populations perfectly regimented to face any situation. Sri Lanka with its divisive forces and elements bred in democratic traditions, cannot afford to be North Korea or Cuba. Nevertheless, whether one likes it or not, its history is replete with treachery. One need not go so far, but the way some of our politicos behave and the frequency with which they switch political ideologies and affiliations could be ample testimony to prove the point.
There is no question that covenants and agreements which we have entered into with other countries have to be scrupulously honoured, if Sri Lanka is not to be considered “a pariah state”. If we vitiate or digress, we lose faith, face and confidence with the entire international community, adversely affecting, inter alia, trade and commerce. This is not to say that the door is shut for any re-negotiation of any provision on expressly good compelling grounds. A complete abrogation of the Eastern Terminal MOU ex parte, as some do agitate, is not only out of the question but out of our reach, without adverse consequences. Perhaps that privilege is exclusive to powers which can boast of nuclear strength. They can even withdraw their contribution to the UN, withdraw from membership of its Agencies, and even compare some of them with cesspools and still trot about unscathed! Sri Lanka is not that fortunate — those who strain their muscles need to realise.
As for the Eastern Terninanal,, what is baffling is that although there were a few whimpers, here and there, it was only a few days ago, after permitting opposing sections to gather momentum and work themselves to a crescendo — that the government through the President, clearly explained fully at Walallawita, the government’s position that it is now carrying the Yahapalana baby, re-negotiated by him with the Indian Prime Minister.
It is indeed most fortunate that the latter did not refuse to budge or choose to ask for a “quid pro quo” as it happened in the case of the Hambantota Port and the Port City, where we had to concede a second 99-year lease and an additional block respectively. Mattala Airport was saved by the skin of its teeth !
Apparently the re-negotiated formula (Jt. Stock Co.) had either been initiated by President Gotabhaya or agreed to mutually at the summit, and it is definitely not within the norms of international decorum and decency to go back and haggle on that issue, however strong the opposition to it is locally..The country’s image is at stake. He would not certainly expect his people here to make him look ridiculous in the eyes of the Big Brother across the Palk Straits, and more-so the international community. .Sri Lanka’s honour and pride are at stake, and his people need to stand by him and strive to understand and compare the re-negotiated formula with the Yahapalana Agreement, as to which is more beneficial or less dangerous. Many of those who shout hoarse now had maintained a stoic silence when the MOU was signed, and hence ought to share the responsibility. The opposition seems to be of a mostly political nature than a patriotic one.
India has unequivocally made its presence felt when it had no second thoughts of invading Sri Lanka through its armed forces, euphemistically called the IPKF,.preceded by the infamous “parippu “drop! President JRJ had his arm twisted into the 13th Amendment, with which we are now stuck – a white elephant- despite India failing to perform its part of the deal.. Former East Pakistan is now Bangladesh, “courtesy” India ! The “sandos” ought to realise. Sri Lanka has by necessity to be tactful and diplomatic without confrontation and bogus rhetoric.
Prime Minister Modi seems a different kettle of fish to Indira and Rajiv Gandhi, and we have to capitalise on his current goodwill. He could mean business if he wants to with the US on his side. In re-negotiating it would be beneficial if we were to point out the trade balance in its favour, and the fact of having already released our oil tank farm in Trincomalee, and a section of the retail oil business, as also the pronounced Indian business interests already here.
Without disturbing the already mutually agreed arrangement for a Joint Stock Company,some of the fears expressed by the opposing forces here could possibly be allayed, with the proposed company being registered as an unlisted company, with a strict embargo on the sale of any minority shares to any other party other than the Port Authority, the Chairman to be from the majority shareholding,(Port Authority), the Managing Director (CEO) to be nominated by he Investor(s) with the nod from the Board of Directors, the majority on the Board to be from the major shareholding, one of whom should be the nominee of the Minister of Finance. If there are to be more than one shareholder among the minority group, they could form a consortium and provide a written agreement enshrining these and other conditions. ( The President had hinted on the possibility of there being more than one minority shareholder). Such a solution would possibly take the wind off the sails and satisfactorily end the impasse.
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