Juvenile Justice System in Sri Lanka

Juvenile justice is the criminal law applicable to children and young people, who are determined as not old enough to be held responsible for criminal acts.  Juvenile justice system in Sri Lanka as in any other country try to rehabilitate children who are under the perview of juvanile justice law rather than punishing them.

In Sri Lanka, minimum age of criminal responsibility is set at eight years by the Sri Lankan Penal Code enacted in 1883. Between eight and twelve years, the judge has discretionary powers to hold a child criminally accountable, or not, based on judge’s judgment on whether the child has attained sufficient maturity of understanding the nature of consequences of his conduct on that occasion. Children above 12 years can be charged with criminal liability regardless of they have attained sufficient maturity to understand the nature and the consequences of their conduct. Children between 16 and 18 are treated as adults by the criminal justice system.

The classification of children under the Children and Young Peoples Ordinance (CYPO), no. 48 of 1939 leads to much confusion. (LHRD:1998) According to CYPO, only children under 14 years of age are considered as children for the purpose of juvenile justice. Children between 14-16 are considered as young persons. Children between 16-18 are considered as adults by penal law. However a person under 18 will not be sentenced to death.

There is only one Juvenile court to deal with cases involving children and young persons. This is established based on the provision made in CYPO. The courts has an extensive jurisdiction covering all cases of children in need of care and protection and any criminal charges against children other than scheduled offences such as, murder, culpable homicide, attempted murder and robbery. CYPO has also made provisions to appoint Juvenile or Children’s Magistrates to Magistrate’s Courts. Magistrate’s Courts and Primary Courts exercise juvenile justice in addition to their normal criminal jurisdiction.

After the trial stage, child or young person found guilty of an offence may be punished in the following manner according to Part II of the CYPO-
1. Committed to custody in a remand home for a period not exceeding one month (S.25 (1))
2. Child of 12 years or a young person may be sent to an approved or certified school (S.26 (1))
3. Handover to parents or guardians for custody on condition of keeping good behaviour for one year; (S.27 (1))
4. Place him in charge of some fit person for 3 years; (S.27 (1))
5. Conditionally release him (S.27 (1))
6. Place him under probation (S.27 (1))
7. Fine him (S. 28 (1))
8. Order corporal punishment (6 strokes with a light cane for males only) (S.29 (1))
9. Discharge him after due admonition (S.30)

Convicted child prisoners are usually sent to Wathpitiwela Training School for Youthful Offenders, Pallansena Correctional Centre for Youthful Offenders and Taldena Correctional Centre for Youthful Offenders

Children coming into contact with the law mainly do so in three different ways, namely, as children who have committed offences; as children who are in need of care or protection as stipulated by section 34 of the Children and Young Persons Ordinance 1939; and as victims of offences committed by adults against them and produced before Courts as victims/ witnesses and therefore not necessarily falling within the definition of section 34 of the CYPO. (Nanayakkara, H. 2009)

Children who are in need of care or protection are categorized as victims of rape/ other forms of sexual abuse; physical abuse and cruelty; dispute between parents/ one parent wanting to keep the child; separation poverty, death, divorce or migration; use of alcohol or drugs by care giver(s); mentally or physically challenged or both; abandoned/ loitering or lost; child labour and begging; eloping with the lover, willing intercourse/ other non-penetrative sexual activity; prostitution; abduction; abduction and rape; cruelty and sexual abuse; beyond control; reason unknown; other(Nanayakkara, H. 2009)

Children coming into contact with the law as offenders has conducted following offences, robbery; theft; stabbing; escaping from an institution; deported from Singapore; attempt to travel on forged documents; sexual abuse of a boy, possession and/or smoking of cannabis; possession and/ or trafficking of heroine; emergency regulations; physical assault; unlawful selling of food; causing mischief by cutting an electric wire; impersonation by giving a false identity card; consuming alcohol in a public place. (Nanayakkara, H. 2009) According to the study conducted by Nanayakkara, most of the offences were extremely minor offences.
The AHRC report on Sri Lanka Legal Reforms and Human Rights, discusses State-Sponsored Violence against Children in the juvenile justice system in the country. These acts of violence include, torture and abuse of children who are suspected to have committed and offence by police; Keeping children under pre-trail detention for long periods of time and in detention centers with poor conditions which are contrary to their best interests; Sending children who protection measures, such as victims of abuse, street children and other child victims to correctional institutions; lack of access to legal assistance for children in conflict with the law; exposing children to harsh cross examination at court hearings; not systematically training professionals working with these children; not systematically separating children from adults at all stages of the legal process; and total absence of alternative non-custodial methods of rehabilitation. (AHRC:2003)

In order to protect children in contact with the law, Committee on the Rights of the Child has provided following Concluding Observations on 6 June 2003:
"b) Amend the Children and Young Person’s Ordinance (1939) to raise the minimum age of criminal responsibility to an internationally acceptable level and to ensure that all offenders under 18 are treated as children;

c) Set up a system of juvenile courts across the country;

d) Ensure that deprivation of liberty is used only as a last resort and for the shortest appropriate time period;

e) Take effective measures, including where appropriate the enactment of legislation, to implement the recommendations of the Law Commission on the juvenile justice system, in particular those regarding access to legal assistance, training of professionals working with children, separation of children in conflict with the law from adults at all stages of the legal process and development of alternative non-custodial methods of rehabilitation."


Reference

AHRC (2003) Part III: State-Sponsored Violence against Children in Sri Lanka in Sri Lanka Legal Reforms and Human Rights - Vol. 01, No. 04 (November 2003) posted on 2003-11-21. Retrieved on 25-08-09 http://srilanka.ahrchk.net/legal_reform/mainfile.php/0104/37/

De Silva, Harendra (1997) Findings from a Study of State Institutions and their Effects on Children. (Annex 5) in Report on Alliance Juvenile Justice Workshop- South Asia (26-29 May 1997) Colombo: Save the Children (UK) and Redd Barna

Goonesekere, S. (1997) Juvenile Justice Issues in Societies in Transition (Annex 2) in Report on Alliance Juvenile Justice Workshop- South Asia (26-29 May 1997) Colombo: Save the Children (UK) and Redd Barna

Juvenile Justice Panel
http://www.juvenilejusticepanel.org/en/ihrs.html

LHRD (1998) The Study on the Substantive and Procedural Laws Relating to Children Requiring Reforms. Colombo: Redd Barna

Nanayakkara, H. (2009) Data Collection from Magistrate’s Courts of the Judicial Zone of Colombo – January and February 2009. Save the Children in Sri Lanka. Funded by Displaced Children and Orphans Fund, USAID. (Unpublished)

Roy, N. and Wong. M. 2006. Juvenile Justice: Modern Concepts of Working with Children in Conflict with the Law. UK. Save the Children
Samaraweera, Vijaya(1997) How Child Friendly is the Judicial Framework and Legal Process (Annex 3) in Report on Alliance Juvenile Justice Workshop- South Asia (26-29 May 1997) Colombo: Save the Children (UK) and Redd Barna

Thiranagama, Kalyananda (1997) Juvenile Justice Law Enforcement: Success/ Failure: What defines a success or a failure? (Annex 4) in Report on Alliance Juvenile Justice Workshop- South Asia (26-29 May 1997) Colombo: Save the Children (UK) and Redd Barna

Wernham, M. 2004. An Outside Chance: Street Children and Juvenile Justice – An International Perspective, Consortium for Street Children