20th June 1999
Are laws sufficient to prevent child abuse?
In this column I have tried to explain the value of an independent judiciary. The people who live in the west or in countries like Australia and New Zealand — where an independent judiciary is synonymous with democracy — may not understand why we should reiterate the importance of an independent judiciary.
Judges are expected to be honest and efficient and they should not act like puppets on strings.
But in this part of the world, judges who have acted independently have suffered, but those who pander to the political policy of the ruling party have received gratification.
Justice Kuldip Singh was not promoted as the chief justice of India. He took a fiercely independent stance on matters concerning the state and its citizens. In Sri Lanka, Justice Raja Wanasundara was not promoted as the chief justice, though he was the most senior judge of the Supreme Court. It is alleged that he was denied this position because of the dissenting judgement he pronounced on the 13th Amendment to the Constitution.
Justice Lakshman Weerasekera, at the ceremonial sittings to welcome him to the Supreme Court bench, made a thought-provoking statement on the judiciary. For a Magistrate to be finally appointed to the highest court, the Supreme Court, is a major achievement.
He said: "To the people the Judiciary is the sole protector against tyranny, autocracy and the intemperate acts of the bureaucracy. It is the forum in which the liberty of the subject is asserted. With courage and humility when I think it is irrespective of public opinion I shall hold against or with the State and citizen, no man shall leave these hallowed precincts without his cries for Justice being heard or answered."
If these words were uttered in the West at a ceremonial sitting to welcome a Supreme Court Judge, one would surmise that Justice Weerasekera was stating obvious norms and standards expected from a judge.
But in Sri Lanka successive governments have tried to erode these cherished principles by direct attacks on the Supreme Court or by subtle manoeuvres whereby independent judges are not promoted.
Therefore these principles have to be repeated ad nauseam till they become a platitude because silence would be considered as an opportunity to restart the attack on the independent Judiciary.
The Ministry of Justice and the Judges' Institute held a seminar for the magistrates on the topic of 'Effective implementation of laws regulating child labour'. The keynote address delivered by Justice Lakshman Weerasekera was a revelation. He asked the participants to suggest what new laws have to be promulgated and what laws should be repealed. He wanted the joint paper submitted by judges to be channelled to the Ministry of Justice. As child labour and exploitation is a national problem at present, excerpts from Justice Weerasekera's speech are published here. "A subject of a seminar is chosen because of its universal importance or of its regional or local importance or of its topical importance, i.e. because it is particularly relevant to our times. In my opinion the following aspects of the subject merit your consideration.
"Who falls within the definition of the term 'child' whose labour cannot legally be drawn upon.
"Is child labour totally banned?
"What are the present laws prohibiting child labour.
"How effective or ineffective are these laws?
"How best can the position be remedied where necessary?
Who falls within the definition of the term 'child' whose labour cannot legally be drawn upon?
"Even the dictionaries do not define the term using the measure of age. Who then is a child whose labour cannot legally be drawn upon? The age of eighteen years is accepted as the age of majority under the Children and Young Persons' Ordinance, in consequence of the Age of Majority (Amendment) Act No. 17 of 1989. Hence 18 years may be taken as the upper limit of childhood.
"The subject of discussion at this seminar today is the 'Effective Enforcement of the Laws Regulating Child Labour. It is impossible to eliminate child labour, just as lesser and greater offences cannot reach the ideal of total elimination. But I categorically state here that a magistrate can contribute to the control, indeed ideally to the total elimination of the most intolerable aspects of child labour.
"Sri Lanka has ratified the United Nations Convention on the Rights of the Child in 1989 and has in 1992 adopted a policy document, the Children's Charter. Here the age of the child is determined by the limit of 18 years. The Children and Young Persons Ordinance No: 48 of 1939 and its amendment recognized a child as one under 14 years, a young person as one from 14 to 16 years and a youthful person as one who has reached the age of 16 but not 22 years.
"You will find in the Legislative Enactments, a series of Acts —the Workmen's Compensation Act, The Adoption of Children Act, the Education Act, the Penal Code, the Torture Act, the Minimum Wages Act (Indian Labour) and even Article 12(4) of the Constitution that have referred to the child without explicit definition of who a child is. We are therefore neither here nor there in regard to who a child is.
Is child labour totally banned?
"It would be pertinent to examine what labour is? Labour is work requiring skill. The term would denote physical or manual work, handwork or toil. The connotations are more relevant to the subject under discussion. Afterwards, at this seminar or at a later seminar participants may be able to arrive at the various level, degrees and qualities of child labour; that is child labour in plantations, in gem and other mines in sweat shops, in sex dens, drug nets and what-have-you. It therefore connotes strenuous work and oppression, i.e. treatment with tyrannical cruelty or injustice.
"It in fact connotes exploitation. It connotes the extraction of work out of a child —which work is immoral, unethical and/or exploitative. The discussion may also centre upon the question as to whether child labour is totally banned. Regrettably, it is not.
"One may express the thought that from a practical point of view it can only be regulated and the grave onus of effectively enforcing such regulations falls fairly and squarely not only upon the magistrates but also on a host of other groups such as the police, labour officials, probation and child care officials, temples and other places of religious worship, and certainly upon society at large.
"But the magistrate has a special role, for it is he alone from among all the others who can legitimately declare a person guilty of using or causing the use of child labour and impose penalties.
What is the current law prohibiting child labour in Sri Lanka?
"… it would be useful for the Magistrates to line up a full list of current laws affecting and regulating, if not prohibiting, child labour or the exploitation of the physical energy of children, whether it is for economic, immoral or any other purpose. It would be pertinent to line up all the laws on child abuse and employment.
"It is therefore necessary to examine whether the age limit of a child should in municipal law be left somewhat uncertain; 18 years for some purposes, or 16-18 for others or 13 to 16 for yet others and even 10-14 yet again, to bring about as effective an enforcement as possible, of the available laws regulating child labour.
"It is also necessary to examine whether participation in the means of making economic or social contributions to family income should be classified as child labour, given the levels of poverty prevailing in our country whether all child labour should be banned carte blanche
How effective or ineffective are these laws?
It is practically within the powers of the magistrate to effectively enforce the laws in such a manner that they ensure that the conditions of work prescribed for children over 15 years who are part of the official labour force in Sri Lanka in regulated employment, are actually met?
"It is better or feasible to fix the age at 18 years and not 15 years as the limit? Can the country afford this? Again how effectively can anybody enforce regulations in the case of children even under 15 years working, for example, in family plantations, or agricultural, or manufacturing concerns?
"What can be done about children, virtually abducted or conscripted to scorch themselves in the dry fish production units or camps run by ruthless businessmen, labouring virtually as bonded slaves? How effective can the law be in respect of pavement or street work, professional begging, sex-based services on the 'golden beaches' of this tourist paradise? How effective in such contexts is the Vagrants Ordinance or Children and Young Persons Ordinance?
How best can the position be remedied where necessary?
"How effective have the dispensers of justice been, or can be, in respect of child domestic servants? Is a child in domestic service who is not maimed or burnt or sexually abused but engaged in household chores better off than he or she would be at home? How can we assure that even those child domestic servants who are 'better off' are tucked into bed or sprawled on their mats for their minimum hours of sleep? What about trafficking in children, as for instance in the case of camel races, or recruitment as child soldiers as in the notorious Baby Brigade, or in sex tourism.
"The prescribed legal proceedings are regrettably of such a nature that children may only be 'placed in care'. It may be necessary to examine the jurisdiction of the juvenile court. Can the adult who violates the child in domestic labour and found to have committed a violation of the law be prosecuted, or is it only that the child can be 'placed in care' and the police have to bring a separate case by way of criminal proceedings?
"I therefore suggest that within a period of time you meet again at a workshop bringing with you brief papers outlining what you know and what your have experienced and researched, what laws in your view should be promulgated to bring offenders more effectively to book, what dead letters should be deleted from the law books, what structural improvements should be effected. What human resources should be developed, and then have your combined efforts formulated as a declaration of your joint views."
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