Protecting children not easy, with outdated laws :

Capital punishment for child rapists soon - NCPA Chairperson

By Manjula FERNANDO

The National Child Protection Authority Chairperson Anoma Dissanayake in an interview with the Sunday Observer says the laws proposing capital punishment for child rapists is expected to come before Parliament shortly.

She says the proposal now before Cabinet will be a landmark step towards protecting children in the country.

Emphasising the need for urgent legal reforms to address crimes against children she voiced, “Child rape is as serious as a murder, a heroin case or possessing illegal weapons. If such offences invite tough bail terms, then I think a child rape accused has to be meted out with harsher punishment. Even for breaking immigration laws an accused has to go to High Court to obtain bail, I cannot understand the rationale behind this.”

Excerpts of the interview:

Q: The accused PS Chairman in the Akuressa child rape case, who is now on bail has reportedly gone back to office and engaged in official duties. What can the NCPA do in a situation like this?

A: We need to change laws pertaining to child rape in this country. In Sri Lanka, until an accused is convicted he is deemed innocent. That is the law of the country. In this instance also that is the law, though all the evidence is against the PS Chairman.

The accused is free to go anywhere and go to work. But there is a big question arises is it ethical to allow an accused of such a crime to hold public office. My opinion is that his superiors must take action. It is bad for the reputation of the institution when such a person continues to work there while a case of this nature is heard in a court of law.

The NCPA did not get any intimation that this person went back to work. I don't know if this report is correct. But the NCPA's jurisdiction in such a situation, is limited under the present law.

Q: Do you think bail laws with regard to child rape cases must change?

A: Of course. In fact we have already requested these changes. We have urged to amend the Bail Act concerning child rape offenders. A child rape accused should not be given bail in a Magistrate's Court. We need to be more serious about such heinous crimes. The bail application should be referred to the High Court at least. Child rape is as serious as a murder case, a heroin case or possessing illegal weapons. If such offences invite tough bail terms, then I think a child rape accused has to be meted with harsher treatment. Even for breaking immigration laws an accused has to go to High Court to obtain bail, I cannot understand the rationale behind this.

We have written to the Ministry of Justice and the Ministry of Child Development and Women Affairs about the need to change the law. The report was submitted about a year ago.

Q: When was the law governing child abuse and child rape offences last amended?

A: There were amendments introduced to the Penal Code in 2006. After that nothing has happened. This is a serious handicap. The NCPA and the police can arrest offenders but the process after that is weak. The implementation of the existing law as well as strengthening of the NCPA through necessary legal backing is vital to protect our children.

We have set up Children's Courts. But when a child is mentally abused within the family, we cannot take the child. The law is flawed.

We are going to file a revision application in the courts today. There was an order given by the Colombo High Court regarding the custody of a child. The parents had separated. The mother who has the custody of the child does not want the child to be shown to the father. As a result the child is traumatized. This amounts to mental abuse. We are going to file a case and get an order so that the other party can also have access to the child.

Q: There is much agitation when a child victim surfaces. But after sometime the whole thing is forgotten. Your comments?

A: We have a toll free complaints hot-line. Any person can contact our hotline 1929 without difficulty. The reporting side, therefore has improved. This is a good sign. Even when there are no major cases reported in the media, we do push for follow-up action.

For example there are still children's homes that do not adhere to minimum standards, especially in the provinces. We have brought this to the notice of the ministry. Action has been proposed against them. This is a big issue.

Q: Is there a move to make child abuse convicts jobless?

A: Not jobless. This will be a major step forward in child protection in Sri Lanka. We call it a 'child offenders registry'.

The registry helps to protect minors from adults who have previously been found guilty of mental, physical or sexual abuse. The information contained in this registry will be accessible to the relevant authorities, working in areas relating to children.

If a teacher abuses a child, if he is convicted, he will not be allowed to go back and teach in another school. They can't send them on transfer. The schools must dismiss them. It is a case of violation of child rights as well as human rights. Most of the people who are abused as children take it out on other children when they become adults. It is a vicious cycle. We want to work more on prevention than conviction.

Q: Child Activist Dr. Hiranthi Wijemanne in an interview with the Sunday Observer sometime back, said adoption laws in the country act as a deterrent to finding foster parents?

A: We have proposed to change the existing regulations in the policy that we have presented. Not just that there are differences between local and foreign adoptions. Foreign adoptions are not time consuming, within one month, you could finalise the paper work and go.

But local adoptions get dragged on, sometimes for nearly five years. If you adopt a child just two days after birth, sometimes the birth certificate cannot be obtained when the child is ready to go to school. The people who are adopting a child do so because they really want a child. For an ordinary citizen to appear in courts, for even a thing like this is not a pleasant experience. We need to amend the Adoption Ordinance and this has been proposed in the new policy that we have presented to the Ministry.

Q: The Ordinance was not amended recently?

A: There have been some amendments in 1992, to accommodate foreign adoptions. According to the Convention of the Rights of the Child, foreign adoptions are seen as a last resort. The child should be facilitated to grow up in the country of his or her birth. This is vital for the child to develop his identity. In a foreign state you grow up to be a second class citizen.

So many children who have grown up with foreign foster parents have come back to see their parents and the country. We have had many such visitors wanting to trace their biological parents. They want to get Sri Lankan citizenship and live with their foreign spouses and children here. It is a human need. Even if they were babies of few days old when they left Sri Lanka, they do want to return. In India, some states don't allow foreign adoptions.

We are a welfare state. Although there is no 'Dole system', we look after our elderly, we have a free health care service, free books and uniforms, education, etc. Then why can't we look after our own children? There are so many Sri Lankans who want to adopt orphans. But the local adoption process is so tedious. We want to do away with these deterrents, for example to minimize the number of reports called for by the courts, to finalize an adoption.

Q: Isn't poverty one of the key reasons for parents to abandon or put their children for adoption in Sri Lanka?

A: Not really. Mostly children are abandoned when parents are not bothered about them. There are mothers who work as prostitutes to bring up their children. Here, poverty is not a major issue. Family ties are strong among Sri Lankans. There are different issues. Some people are not bothered, due to many factors, maybe they were abused when they were young and can't take the responsibility or they don't know how to love another person as a result. In such a situation you cannot blame the parents alone.

Q: There was a call to stop mothers of young children being sent as migrant domestic helpers to the Middle East. Has this call progressed any further?

A: Our Minister made a proposal sometime back. For some reason it did not materialize. The NCPA in 2010 proposed that the Foreign Employment Bureau to obtain a clearance certificate from the NCPA with a written pledge that - 'I have so many children, they are with my sister, who is living at this address, and they are safe under her custody'.

Then it is easy for officials to monitor whether these children are being looked after well or are being neglected. An affidavit of that nature carries a lot of weight in Sri Lanka. When such an undertaking is given, usually they make sure that it is not breached.

If we get an undertaking like this we are in a position to arrest the caregiver also in addition to the person who abused the child. But the SLFEB was not cooperative and did not like us interfering in their work for the fear that such rules may deter migrant workers.

I am of the view that sending mothers to work abroad, is futile and counter-productive in the long run. The earnings of the migrant mothers will not be enough to cover the state spending on the officials who try to look after their neglected children here.

The Government has dispatched 360 child protection officers attached to divisional secretaries to set up special child protection units. We are spending on them, about 1500 new employees altogether will be recruited. Even after spending all that money we cannot assign one officer to a house and even so they can never replace a mother.

We started sending our women abroad in 1978 or so. Now after 30 years we see the adverse impact. What will happen after another 30 years unless we try to correct the mistakes now? We can send fathers, give them skills training, in plumbing, electric wiring, carpentry, etc. and send them as skilled labour and they can earn more than domestic aids. There needs to be a long-term plan without hanging on to the easy way out.

Q: Any progress in the proposal to introduce capital punishment for child rape?

A: Capital punishment is not suggested for rape per se as it may involve a love affair between two minors. A sexual act with a girl below 16 years, even with consent, is construed as rape under our law. Capital punishment has been proposed for more severe crimes like gang rape, abduction and rape and raping children with instruments and in unnatural ways.

The proposal is now before Cabinet. I am hopeful that this will go to Parliament soon and will become Law shortly.

Such work has to be multi-sectoral. The Child Development and Women's Affairs Ministry, Health Ministry, Ministry of Justice, the Attorney General's Department and the Media must get together, then only things will get moving.

If we don't bring in new laws without delay, the situation could get worse.

Q: About the children getting abused in their own home, does our law addresses this area adequately?

A: Most of the incest cases happen when their mothers are away doing jobs or if the mother has married for the second time – this involves a step father or step brothers.

I cannot say the law is adequate. The existing Bail Act needs to be changed for rape or all child abuse cases. Because we have to take speedy action involving a child rape victim, as the child tends to forget things. The longer the case takes, the harder it gets to prove it. Some cases have been heard for decades. When the defence lawyer asks the colour of the shirt the rapist was wearing, the victim can no longer recollect. There are such disadvantages.

The provisions to allow video recording in a child rape case was passed in 1999 but still not implemented.

Q: Recently a boy of about two years was raped inhumanely by his own father and this child ultimately died. The mother was a migrant worker and an aunt was entrusted to look after the child. In such a situation what can be done against the caretaker?

A: We could charge the caretaker for neglect. They can be put behind bars for negligence. Most of such crimes against children in our country go unreported because adults are scared of getting a bad name. This is so pathetic.

Q: What is the progress with ex-Child soldiers?

A: We don't have any child soldiers in the country. The LTTE child soldiers have all been rehabilitated and reintegrated in society. There is a post survey of their progress. We do meet them but we do not speak about their past anymore.

Most of these child soldiers have found jobs in the southern part of the country. Some have even gone abroad. We had a fire camp in Kilinochchi recently and it went on till 12.30 in the night. Ex-child soldiers joined in and even danced with our officers. They are not minors anymore, they have grown up. It was a pleasant experience.

Q: What is the situation with child labour, where do we stand compared to other countries in the region?

A: We are much better. But we still have problems. After the opening of the Northern Province, things have changed. But there are children still engaged in dangerous vocations, like fishing and factory work. As for fishing in most cases they go with their fathers. In the plantation sector, children get trafficked to the south for work in the sex trade, as beach boys, boutiques, garages and in factories. We are conducting awareness programs among parents.

Fortunately we don't find under 14-year-old working as domestic helpers anymore. We do get calls about domestic helpers but when investigated we find that they are small made but over 14 years. The law has been very effective there.

Q: Can the NCPA take action against the use of children in unethical advertisements?

A: We don't approve of the use of children in advertisements. It is unethical. However, with just 22 police officers and a limited number of staffers with the NCPA it is not easy to initiate legal action all the time. Someone has to be assigned fully to go to courts when a case is filed.

Therefore, what we do now is inform them that we don't approve of the advertisement. If it is a serious case, however, we do intervene and take legal action. The Health and Consumer Affairs Ministries too have their individual roles to play in this area. In our National Child Protection Policy we have mentioned about the need to strengthen the NCPA to tackle issues like this.