National Child Protection Authority Bill

One of the most significant pieces of legislation - Prof. Pieris

by Walter Nanayakkara and Lishanthi Siriwardena

Parliament met with Speaker K. B. Rat-nayake in the Chair at 9.30 a.m. Thursday 20.

After presentation of papers and petitions and oral questions were answered by Minister of Justice and Constitutional Affairs, Ethnic Affairs and National Integration and Deputy Minister of Finance Prof. G. L. Pieris moved the National Child Protection Authority Bill for second reading.

Minister Prof. G. L. Peiris said: This is one of the most significant Bills presented to Parliament since independence. It is a landmark piece of legislation as I have described it earlier.

Gauthama the Buddha in the Parinibbhana Sutta has stated that the value of a society is measured in the manner it protects the vulnerable sections.

Our criminal laws have not been revised for a century. Today some of our laws have no bearing on the present conditions of the country.

The Child Protection Authority Bill, is one of a series of initiatives of President Chandrika Bandaranaike Kumar-atunga who sometime back appointed a committee to report on law reforms.

The throbbing heart of the Bill I am proposing today is the creation of a central authority to deal with rights and problems of children.

The authority will function under the President's direct control.

There are a plethora of personal laws in Sri Lanka.

The Bill's definition of the word 'child' says a child is a person who is under 18 years of age. This gives clarity to the subject which the authority is changed with.

The authority's members belonging to many disciplines, will be appointed by the President. It includes Psychiatrists, the Attorney General and the police among others who have a critical duty to play.

We will try to incorporate most of the amendments proposed by the Opposing into the Bill.

We are delighted that we have received the co-operation of the opposition for the Bill.

The need of a comprehensive national policy on children has been recognised by Her Excellency's government.

We have to ensure the monitoring function of the National Child Protection Authority. This will be a continuing function of the authority.

There are only 25 board approved psychiatrists for the 18 million population of this country.

Provincial Councils and Local Councils should also play a role, for the successful implementation of the principles contained in the Bill.

Non-government organisations (NGOs) will also have to play an important role.

The bill gives the authority the power to conduct seminars on the subject of child abuse.

We have also ensured that the authority has enough resources to carry out its function and it will have a separate Fund, financed from gifts etc.

There will be panel of resource persons consisting of several ministries including that of Education and this panel will play a supportive role.

We have framed our definition of the term child abuse to cover all aspects of child abuse including sexual abuse, trafficking in children, employment of children, use of children in pornographic activities etc.

Preparation for the work started in 1996 with the appointment of a Presidential Committee headed by Dr. Harendra de Silva.

The Bill removes the requirement of non-summary proceedings in the case of rape of a child below 16 years, to prevent such a child victim being twice exposed to judicial inquiry.

The Presidential Committee has also established telephone hot line to enable informations about any instances of child abuse brought immediately to the notice of the authority.

The bill will usher in a new Chapter in the history of the country.

A. C. S. Hameed (UNP) You said you are not an arrogant government, we say we are a caring opposition. The UNP gives hundred percent support to this Bill. Let this not be another beautiful piece of legislation to adorn the statute books. Let us make this a pragmatic and a living authority. Certain amendments are necessary to overcome the shortcomings in it.

The proposed authority does not provide for representations from the media and the NGOs - the people who work with children. You need the laymen' input to bring in a wider perspective. Even sections of the tourist industry have to be included. Then there will be a wider spectrum.

Even members of Parliament are left out. This is a matter of concern with regard to many other pieces of legislation as well. But at this particular moment when the atmosphere permeates with a spirit of co-operation there would be no conflict of interest. The inclusion of several members of this House would add quality to the composition of the authority.

Why don't you make provisions for an annual report?

Professor GL - 'I will move a committee stage amendment to have an annual report'.

Chair - I wish the minister would include the other suggestions as well.

More power should be delegated to the deputy chairman who is the minister in charge of the authority. The unidentified minister is delegated a great deal of power.

Let us vote 25 million for the fund. Let it be a fund to reward the investigators. Let there be incentives to people who implement the provisions of this Bill. Let them be trained in the art of investigation. They will be the ones that are crucial to activate this piece of legislation, protecting our future they will be dealing with offenders who are a powerful section of society. Mafia, baby farms - these are powerful lobbies that have to be dealt with.

Society is changing and the beautiful traditions are breaking down. Children are neglected. The menaces of modern society is breaking the morale of the child. Children are physically and psychologically assaulted. It is also important that these child victims are separated from the offenders. Orphans are another unfortunate category. I am referring to orphans living with relatives. There should be a scheme to provide protection to them by the state.

Children are the brick and mortar with whom we build tomorrow. We are prepared to support you to the hilt. Let this Bill be pragmatic. Although my words have not been encouraging I suggested measures to invigorate this Child Protection Authority and for its successful implementation.

There is an air of philosophy in this House today. My speech has to end. I will conclude my speech with the observation that although all bad things don't come to an end, all good things do come to an end.

Dr. Neelan Thiru-chelvam (National List TULF) said: This legislation endeavours to provide an institutional focus for the prevention of child abuse and the protection of children who are the victims of such abuse. Under the Children's Charter, a National Committee for the monitoring of child rights was established. This committee was not meant to investigate complaints, but play an advisory role. The Children's Secretariat which functioned in Sri Lanka for some time confined itself to implementing policy in areas such as nutrition and early child care. Similarly the bureaus on women's and children' affairs attached to the department of labour and the police have not been able to monitor violation of the rights of the child. Savitri Goonesekera has observed that 'these units and committees have not been effective because they lack resources, commitment and the capacity for independent monitoring and action in the interest of children'.

In the circumstances, it would be appropriate to merge the concerns on the monitoring committee and the proposed authority to create a single body with the overall responsibility of child protection. In this regard, we need to carefully consider the mandate of this new authority, its composition structure and its potential effectiveness in discharge of the powers and responsibilities which have been entrusted to it.

The mandate of the new Authority is limited to child abuse. Child abuse in turn is somewhat restrictively defined to include the contravention of the relevant provisions of the Penal Code, the Employment of Young Persons and Children Act, and the Children and Young Persons Ordinance. There are two other aspects to the definition. The first relates to the regulations relating to compulsory primary education made under the Education Ordinance. The second relates to involvement of children in armed conflict. This definition needs to be broadened to also include the impact of armed conflicton children.

However, we have a more fundamental observation with regard to the scope of this legislation. The new Authority, if it is to replace the Monitoring Committee on the rights of the child, its mandate needs to be expanded to include the full realisation of all of the rights recognised under the Convention of the Rights of the Child including child abuse and the protection of children who are victims of such abuse. This is because the rights under the Convention which have been categorised as survival rights, child development rights, protection rights and participation rights are inter-related and it is important that the new Authority should have the capacity to adopt a comprehensive approach to this question. We accordingly recommend that Clause 14 (a) of the Bill be appropriately amended to include "the realisation of the rights of the child recognised by the Convention on the rights of the child". Similar consequential changes may need to be incorporated into Clauses 14 (b) to 14 (r). Prof. Goonesekere in her book on "Children Law and Justice - South Asian Perspectives" has drawn attention to importance of using the Convention of the rights of the child, "creatively with optimism and commitment" as a vital instrument for giving children an opportunity to realise their basic rights. The Child Protection Authority, if it is to be effective and meaningful can symbolise an unequivocal commitment to the realisation of these objectives.

With regard to the composition of the Authority, we welcome the importance that has been accorded to professionals with experience in child protection issues and to civil society actors who have achieved recognition in law, child welfare and education. However, in the choice of a Chairman under Clause 8, the President should have the unfettered discretion of appointing a Chairman who has the vision, the moral commitment, experience and understanding of the law and practice relating to child rights and the administrative capacity to build a new institution which will command the respect of child right activists and other concerned members of the public. Sadly in the past, we have devoted a great deal of energy and efforts towards the creation of new institutions in areas of human rights and public accountability and given little thought to the quality of persons who should man such institutions. It should also provide in Clause 8 (1) and (2) that the Chairman and the Deputy Chairman should be full time persons and should not accept or assume any responsibility or office which is incompatible with their obligations to the Authority. The disqualifications in clause 4 (e) and 4 (f) may also be inappropriate given the nature of the functions of the Child Protection Authority.

With regard to the powers of the Authority they should include the power to receive complaints from individuals or bodies on the denial or imminent infringement of the rights of the child. Similar provisions exist with regard to the National Human Rights Commission in section 10 (a) and 10 (b) of Act no 21 of 1996. The Authority should also be free to liaise with non-governmental organisations and human rights groups with a special interest in the rights of the child.

An important concern relates to how the Authority would give effect to its recommendations. Clause 18 provides that a minister may on the advice of the Authority, issue general or special directions to any department or statutory institution. We need to define the minister who would be responsible for issuing such directions. Since the law enforcement agencies fall within jurisdiction of the Ministry of Justice, the appropriate line Minister should be the Minister of Justice. Wherever the other line ministries are involved, the Minister of Justice may request the appropriate ministry to issue the directions. Directions may need to be issued not only to relevant departments and institutions, but also to specific officials. The Clause needs to be amended accordingly.

One of the difficulties that the new Authority will confront with would relate to inter-ministerial and inter-departmental co-ordination.

Clauses 16 and 17 enable the Authority to consult with members of a panel of resource personnel which in turn would consist of the representatives of the relevant line ministries. This seems to be a rather weak mechanism and it will be more satisfactory if a more formal inter-departmental committee consisting of officials is established to work with the Child Protection Authority so as to ensure that there is proper co-ordination and effective implementation.

With regard to the staff of the authority, while Clause 19 (1) provides for the appointment of officers and servants, it would be useful to appoint the Secretary to the Authority who can exercise supervisory control over the staff.

Further with regard to the powers of the Authority, Clause 32 enables the Authority to authorise in writing to any officer to enter and search premises in which child care services are provided or where children are being kept for purposes of child abuse, illegal adoption or any other unlawful purpose. It is not clear whether the officer for this purpose needs to be an officer or servant of the Authority or whether it could include a police officer. Since the powers of entry into private premises and the incidental power to interrogate any person and to seize any article is an exceptional one, the question does arise as to whether the Authority should not ordinarily be obliged to secure a judicial order from a magistrate before such search or seizure of private premises can take place.

In conclusion, the questions of child protection are of universal relevance to all communities and to all political formations in this country. Our record with regard to child abuse and child prostitution has been dismal. We have also failed to insulate children from the cruel consequences of a brutal war. If we are to take our international obligation seriously, we need not only to amend laws and policies, but also ensure that the new Authority "has the independence, the authority, the resources and the imagination to have a qualitative impact on the status of children".

Vasudeva Nanayak-kara (PA Ratnapura District) said: Social development is equally important to ensure that rights of children are really protected. If there is no social development no amount of legislation would achieve the objective.

The victims of sexual abuse, and other crimes against children are the children of poorest families. I do not want to belittle the efforts of anybody involved in the present exercise. But this is the truth.

When we ourselves create a social order that helps the victimisation of children, laws to protect their rights will not be effective.

How much money have you allocated for the Department of Probation and child Care.

How many vacancies of the Department have been filled by the government during the last four years.

Sri Lanka ranks high among the countries where under-weight children are born. This is so according to the IFAD report.

According to UNICEF report 50 percent of Sri Lankan children are victims of malnutrition. But our own statistics conveniently have turned a blind eye on this.

The Probation and Child Care Department is the institution which should take care of the street children and children who need assistance. But we have given the department the needed resources to discharge its duties. Have you filled the vacancies in the department?

Parents give their children to be employed as domestics, not with happiness but because they are so poor. It is this group of children employed as domestics who fall victim to child abuse. Some are victims of sexual abuse. This is the result of poverty.

Continued on Monday