By Nayana
The need to protect children from abuse is not a principle on which disagreement would be expected, but the National Child Protection Authority Bill which was presented to Parliament last week is not without its critics. This may be at least partly due to the exaggerated claims about the scope of the Bill which are being made by Government spokespersons.

The main effect of the National Child Protection Authority (NCPA) Bill will be to give legal status to a body which has already had an ad hoc existence for over 18 months as the Presidential Task Force for Prevention of Child Abuse. As one of its main functions is to secure better coordination of the activities of the various government ministries and departments which touch on child protection, it was felt that a statutory authority coming directly under the purview of the President would be the most appropriate structure.

The NCPA Bill will not make any changes to the substantive law. This has already been achieved to a significant extent by a separate process of law reform that began with the 1995 Amendment to our century-old Penal Code which was highlighted in this column last week.

Subsequently, recommendations from the Task Force provided the impetus for a series of further amendments to the Penal Code, the Code of Criminal Procedure and the Judicature Act, with recommended changes to the Evidence Ordinance and the Prevention of Crimes Ordinance also in the pipeline. Measures enacted so far have included covering certain loopholes left by the 1995 Act as well as introducing new offences regarding the use of persons under 18 years for begging, procuring for sexual purposes and trafficking in restricted substances.

The incidence of time-consuming "non-summary proceedings" in the Magistrate’s Court which often precede a criminal trial in the High Court has been reduced in cases of sexual abuse of children, by means of a statutory abolition in certain types of cases and the use of discretion by the Attorney-General’s Department which is represented at a senior level on the Task Force.

The Task Force has also thrown its weight behind recommendations which had already been made by the Ministries of Education and Labour respectively to raise the age of compulsory education and the minimum age of employment, and these are expected to become law in the near future.

Along with the legislative reforms, the Task Force, spearheaded by its medical personnel and NGO representatives, has initiated a number of programmes for awareness raising and treatment of victims.

The Chairman of the Task Force, Ruhunu University Professor and Senior Pediatrician Harindra De Silva, came to his job with a track record of initiatives in child protection in the Southern Province, designed to ensure case by case collaboration between the law enforcement agencies, medical personnel and the provincial child care authorities so that prosecution of the offender would be accompanied by proper care and rehabilitation of the victim.

The Task Force for Prevention of Child Abuse has thus provided an opportunity for local knowledge and experience to be shared at national level, while its mixed composition of officials, NGO representatives and professionals has allowed for a broad-based input into policy formulation which has so far enabled it to avoid much of the controversy generated by some of the other Presidential Task Forces on social issues.

It is probably fair to say that those who mooted the idea of the NCPA envisaged it principally as a means of giving legal continuity to the type of work already undertaken by the Task Force. However, the ad hoc character and pragmatic orientation which characterized the operations of the Task Force do not easily translate into the formal language of legislation. Nevertheless, once passed, the language of the Bill will assume a significance of its own - hence the attention that has lately been focussed on the Bill in certain NGO and academic circles.

The proposed functions of the NCPA are broadly similar to the terms of reference of the Task Force and include advising the Government on the formulation of policy and measures for the prevention of child abuse; advising on measures for the protection of victims; creating awareness; consultations with and recommendations to relevant government departments, provincial authorities and public and private organizations regarding measures for child protection; recommending law reforms and monitoring the implementation of child protection laws; and making recommendations to address the humanitarian concerns of children affected by armed conflict.

In addition, however, an authorized officer of the Authority will have power to enter and search premises where he has reason to believe that children are being kept for any unlawful purpose, including any hospital or maternity home where he has reason to believe that illegal adoptions are taking place. Such an officer is entitled to question any person on the premises and examine the books or records of such a place.

Perhaps on account of these quasi police powers, there is also a duty of secrecy imposed on all members and staff of the Authority. This has caused some concern among non-governmental members of the Task Force who have hitherto functioned without any such restriction and have in fact spoken quite freely to the press. It is possible that the enactment of the Bill may bring to the surface latent difficulties in reconciling private sector participation in what is essentially an official authority.

The wording of the NCPA Bill makes it quite clear that the proposed Authority is intended to deal only with protection of children from certain wrongs such as violence, sexual abuse, under-age labour, deprivation of education, exposure to unwholesome activities or environments (whether in State custody or outside) or use in armed conflict.

Hence when it is promoted by government spokespersons as an all-embracing vehicle for "children’s rights", the Bill is not surprisingly debunked by those familiar with the International Convention of the Rights of the Child, to which Sri Lanka is a signatory, and our own Children’s Charter which gave national recognition to the country’s obligations under the Convention. This is because, under the Convention, "child rights" are grouped into four categories of which protection is only one; the others being survival, development and participation.

The setting up of a special authority for protection can be justified both on the grounds that effective and coordinated action in that area was seen as the most pressing need of the hour, and also since "protection" is arguably a necessary precondition for enjoyment of the other three rights of survival, development and participation.

Sri Lanka has for nearly a decade had another agency charged with the overall survey of Children’s Charter rights, namely the Monitoring Committee on the Rights of the Child. This non-statutory authority too is staffed by a mixture of officials and non-governmental personnel, and in a rare display of bi-partisan continuity the persons appointed by a previous President were re-appointed for a second term by the present Head of State.

Several members of the Presidential Task Force are also members of the Monitoring Committee, but a lacuna in the NCPA Bill is that it gives no indication of the relationship inter se between these two bodies whose terms of reference are not identical but may overlap in certain areas.

The State media hype that has accompanied the presentation of the NCPA Bill to Parliament has led some members of the Monitoring Committee to express fears that their Committee may be either disbanded or allowed to drift into irrelevance once the new Authority is established. The position in this regard should be clarified in the interests of harmony and child welfare.