Sri Lanka Rights Watch 45 - Consultations to finalize legislation to protect children
( Created date: 31-Oct-2012 )
I was a bit worried because there was a new Secretary of the Ministry of Child Development and Women’s Rights and, given the excellent input and understanding of his predecessor, I was worried that we might have to start from scratch as it were to work out what was needed. But I need not have worried. He was every bit as sensitive as his predecessor, and his sharp comment when we were discussing Children’s Homes, that what was being done amounted to incarceration, made it clear that he will do his best to promote the necessary reforms.
As I have noted previously, the officials who attend are committed to change, and this time too we had the Ministry of Justice and the Attorney General’s Department, as well as the Human Rights Commission and the Probation Department and the National Child Protection Agency, all anxious to move on the legislative changes necessary to minimize abuse. Drafts are ready for the Child Protection Ordinance as well as for safeguarding those who have to appear in Court, and the Secretary will soon have a consultation to agree on finalizing the Protection draft and expediting its presentation to Parliament.
One problem we face when swift action is needed is that for many matters, including those involving Probation, which is a devolved subject, Provincial Councils need to be consulted. This should not be a problem, but unfortunately we have not yet developed a mechanism for ensuring that those asked for their views give them promptly, and participate in discussions to promote consensus when there are disagreements.
In fact, as I have noted, both here and with regard to reform of laws regarding land, there is rarely disagreement, and a capable Secretary can take into account concerns that are raised and ensure consensus, as indeed the Secretary to the Ministry of Lands has done in areas where delays seemed insuperable. But we should also lay down deadlines for responses to be received, following which, after due reminders, consent should be deemed to have been received.
A second problem we face has been caused by the failure in the years following the establishment of Provincial Councils, to lay down guidelines as to how the central government can make policy, in areas where this is its responsibility, while safeguarding the powers of the Provincial Council to implement that policy. It was suggested that this is an area that the Attorney General’s Department should go into in depth, and develop a mechanism whereby national legislation spells out national policy, with a clear account of its purpose, while providing both for provinces to carry out that policy and for monitoring mechanisms to be established to ensure that the purpose of the policy is fulfilled.
Another area in which consistency of purpose must be enforced, even while allowing for different methods of delivery, is with regard to judicial responsibility for those committed to care or custody by court order. The failure of the Judicial Service to ensure that magistrates visit Children’s Homes and Prisons contributes to the suffering of those whose fate is decided by the judiciary without any sense of concomitant responsibility as to the impact of its decisions.
The Consultant on Children to the Attorney General’s Department has suggested that the Court Registrar should be responsible for informing the NCPA and the Probation Department about children who are committed, and for ensuring that such committals are time bound and that the welfare of those committed is monitored on a regular basis. This gets to the heart of a distinction that we do not enforce, perhaps because the need for it is not understood, that monitoring should not be done by the same agency that is responsible for implementation. That is why, while obviously it is the Probation Department that must visit the children regularly and monitor their welfare, we must also set in place a supervisory mechanism that acknowledges and fulfils the responsibility of the state to ensure that its functions are being carried out properly.
Another area in which the Secretary has agreed to hold consultations is with regard to mechanisms to protect children brought before a Court. While it has been suggested that they could give evidence through a video link, this is both expensive, and could subvert justice since such evidence must be subject to scrutiny: while obviously we must prevent children being traumatized by further confrontation of those who have abused them, we must also guard against the accused being condemned without proper opportunity to challenge evidence.
I am not sure what the answer is, but I have no doubt that, after comprehensive discussion, a mechanism that allows for questioning in private but with facilities for the accused to advise lawyers about further questions can be developed. Such a mechanism obviously should be developed also with regard to Witnesses in general, and it is a pity that different perspectives that concentrate on the rights or perhaps the protection of one or the other party have prevented the achievement of a consensus that limits abuse of either party.
The discussion we had last week, with very balanced perspectives being presented by the representatives of all the agencies concerned, reminding us of the importance of both judicial principles as well as the need for special protection for the vulnerable, suggests that decisions can be reached soon. This must be expedited, for while a perfect solution may not be possible, the worst scenario for all is continuing delay about taking measures generally agreed upon for good reason.
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