by Minoshi Nethma Perera
Published on The Morninng on 16th June 2023.
The protection of child rights in Sri Lanka is a core issue that should be discussed in the present context. Schools are obliged to educate and maintain the discipline of the children. Thus, corporal punishment has been utilised to maintain discipline at schools. But the fact is that the children are physically and mentally exhausted due to this method. Even though the laws and the community understand its gravity, this method is still followed in schools.
As noted in G.N. Lucas’s “Corporal punishment in children: The Sri Lankan scenario”, the United Nations (UN) Committee on the Rights of the Child mentions in its “General comment number one: paragraph 11” that corporal punishment is an accelerated method to cause pain or discomfort through of physical force. In contrast, S.M. Kwok and D.M.Y. Tam’s “Child abuse in Chinese families in Canada: Implications for the child protection practice” defined corporal punishment as a method of discipline, and it functions with “good intention” but not to cause abuse, even though it causes severe injuries. Therefore, it is evident that there is a contradiction between social opinion and legal reforms regarding corporal punishment.
The Sri Lankan legal system had initially accepted corporal punishment under Section 82 of the Penal Code, No. 2 of 1883. In terms of Section 82, the cause of actions is not in effect to cause death, an attempt to cause death, to inhibit the cause of death, to cause grievous hurt and abetment, but any action made with good intention which may not count as an offence under the Penal Code.
Section 341 of the Penal Code states that any action that causes an injury, fear, or annoyance has resulted in “criminal force”. But, illustration (i) has justified the act of a schoolmaster in implementing corporal punishment. Therefore, it is suggested that corporal punishment at school is under the exception of criminal force due to the cause of “good intention” administered. Therefore, corporal punishment at the school level is legal and subject to the laws in Sri Lanka.
Further, the Penal Code was amended with the influence of international instruments signed and ratified in Sri Lanka. Section 308A (2) of the Penal Code (Amendment) Act, No. 16 of 2016 amends the Penal Code by identifying the injuries as psychological and mental strains. Therefore, it points out that the Penal Code has recognised that causing corporal punishment to a child is not lawfully acceptable. It is recognised as an act of “criminal force” within the context of child cruelty. In addition, Section 71(6) of the Children and Young Persons Ordinance, No.48 of 1939 states that any parent, teacher, or any other person is not entitled to impose any punishment. It emphasises the fact that corporal punishment is restricted under the law. The Education Ministry has instituted a circular to prohibit corporal punishment at schools. Section 4 of the Circular No. 12/2016 prohibits corporal punishment at the school level and proposed a list of positive discipline measures to ensure the discipline of children.
Therefore, the present laws stand against corporal punishment at schools in Sri Lanka amidst certain confusions created by the law. As a result, the rate of corporal punishment is held at a high percentage in the current context.
In the case of H.W. Karunapala and Others vs. J.P.K. Siriwardhana and Others (Supreme Court/Fundamental Rights [FR]/97/2017 – judgement penned by President’s Counsel [PC] and Justice [J], S. Thurairaja, and joined by Sisira J. de Abrew J. [since retired] and Murdu N.B. Fernando PC J.), the petitioner, who is a 15-year-old child, was punched by the First Respondent, who is the Art Teacher, the Teacher in Charge of Discipline, and the Sectional Head of the Puhulwella Central College. The child was injured due to the aforesaid incident. The court held that under Articles 11 and 126 of the Constitution, the FR of the child was violated as the child was tortured with cruel punishment for his act.
In the UN Human Rights Committee case of Beddage Tushara Wickramanayaka and Adriana Lakshya Wickramanayaka Cutter (Minor) vs. the Democratic Socialist Republic of Sri Lanka, a girl who attended a private school in Sri Lanka has been subjected to corporal punishment at school. Firstly, it points out that the parents of other children have complained against the first applicant, stating that corporal punishment was acceptable. This shows that public opinion is more likely acceptable for the implementation of corporal punishment at schools. Subsequently, it is emphasised that the Sri Lankan court system and the respective authorities are reluctant to proceed with necessary precautions in such a matter. Hence, it made this the reason to seek protection at the international level.
Therefore, it is emphasised that child psychology is reluctant to be understood at the school level and that this has threatened the security of children since it provokes mental and physical instability. Moreover, the negative trauma created as a result of corporal punishment has a high risk of shaping the negative behaviour of society in Sri Lanka.
It is recommended that awareness about laws be created among students and teachers at schools to mitigate the harassment caused by corporal punishment at schools. Further, it is suggested that a non-violent atmosphere be established at school premises. In Uganda, the Good School Toolkit programme was implemented to enhance equal relationships and a safe psychological environment, which reduced the risk of physical violence from teacher to student by 42% (per K.M. Devries, L. Knight, J.C. Child, A. Mirembe, J. Nakuti, R. Jones, J. Sturgess, E. Allen, N. Kyegombe, J. Parkes, E. Walakira, D. Elbourne, C. Watts and D. Naker’s “The Good School Toolkit for reducing physical violence from school staff to primary school students: A cluster randomised controlled trial in Uganda”). Further, the monitoring of harassment of students caused at the school level has been recommended.
In conclusion, it is emphasised that corporal punishment is namely illegal under the legal system in Sri Lanka, but it is pointed out that it is still in existence in the school system in Sri Lanka. Moreover, it is noted that society is reluctant to act against the said illegal acts. Due to the abovementioned facts, it is noted that beyond its capacity of laws, social acceptance has shaped the existence of harassment in society. Therefore, it is necessary to take immediate necessary precautions to cease corporal punishment and protect the rights of children in Sri Lanka.
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* Ms. Minoshi Nethma Perera is a Research Assistant at the Institute of National Security Studies, which is a think tank established under the Ministry of Defence. The opinion expressed is her own and not necessarily reflective of the Institute or the Ministry.