May 11, 2021

Finally, the State apparatus is coming of age. The decision to put right decades of inconsistent definition of a ‘child’ has led to unpleasant legal issues, but hopefully, encouraged by a very sombre level of excitement, this will come to fruition sooner rather than later.

For a long time now, many of us understooda child to be an individual under the age of 18 years. But, that seems to be only a standardoutside of the law books.Commendably, Sri Lanka has a plethora of legislation in the interest of the child, but lacks a unitary legal definition on the state of being a child under its law. In fact, existing laws, ordinances and regulations relatingto the child contain incongruences in the age limits within which an individual is legally in the status of a child. Accordingly, a child in Sri Lanka, may be an individual under the age of 12 or 14 or 16 or 18, that is, going by the content in the statutes of the country. The UN Convention on the Rights of the Child clearly defines a child as any person under the age of 18.

The inconsistencies in the definition of a child in our statutespoint to the plight of children as victims or as offenders before the law and its arbiters, with their voices too crippledto cry out for justice. Children are a vulnerable segment in society and they are likely to be exposed to more harm because of the repeated failure of peopleentrusted with making rulesto safeguard them.

A good case in point is the Children and Young Persons Ordinance of Sri Lanka (1939) that defines a ‘child’ as anindividual below the age of 14; a ‘young person’ is an individual between the ages of 14 and 16 years.In the Youthful Offenders (Training Schools) Ordinance (1939) a young person is an individual between the ages of 16 and 22 years, which allows an individual under the age of 18 but over 16 to be sentenced to prison by a court if found guilty of committing an offence. These pronouncements are ludicrous at best because of the mismatch between the two definitions; one ordinance states that a child is a person below the age of 14, while the other identifies a child as a person below the age of 16. So a ‘young person’in one statute is a child in the other.

The Age of Majority Ordinance (1865) amended by Act No. 17 of 1989 for instance,states that the age of majority, that is, when an individual reaches maturity is 18 years. This law then, identifies any person below the age of 18 years as a child. But thenthe Employment of Women, Young Persons and Children’s Act states something different; a child according to this Act is a person under the age of 14 years.The Shop and Office Employees Act prohibits the employment of children under the age of 14. So then, does this mean that it is alright to employ any personbetween 14 and 18 years of age?A subsequent amendment in 2006 (Act No. 24) to the Employment of Women, Young Persons and Children’s Act prohibits the employment of persons under 18 years of age in hazardous occupations. But, what constitutes hazardous occupations is to be prescribed by the line minister following the “consideration of the nature or the circumstances in which the occupation is being carried out and the harm that may be caused as a result thereof to the health, safety or morals of a person under the age of 18 years”. Meanwhile, the compulsory age for schooling is 16, but a person as young as 14 can enter the labour market, as long as the nature of employment is not hazardous. In an apparent admission of the utter idiocythat has gone unnoticed for a while, it was announced that amendments to the labour laws would change the minimum age for employment to 16, so that it correspondswith the legally stipulated age for schooling.

Compounding the issue further is the Penal Code of Sri Lanka. According to Section 84 of the Penal Code, the definition of a child refers to individuals below 12 years.However, a subsequent Penal Code amendment (Act No. 16 of 2006)to provide for certain new offences such as the use of computeror use of premises to commit child abuse,defines a child as any person below the age of 18 years. Of real concern is Section 363 of the Penal Code (through the Amendment Act No. 22 of 1995) which defines what constitutes rape.Rape is, then, sexual intercourse with a woman under 16 years of age, whether committed with or without her consent. The Age of Consent in Sri Lanka is 16, that is, the minimum age at which an individual is considered legally old enough to consent to participate in sexual activity. So, individuals aged 15 or younger in Sri Lanka are not legally able to consent to sexual relations, and in such cases, the consent of the victim is considered to be irrelevant. The text in its entirety is very worrying; rape comprises “with or without consent when she is under 16 years of age”. That’s understood. Then it goes onto state“unless the woman is his wife who is over 12 years of age and is not judicially separated from the man”. This is dangerous because it legalises child rape. So sexual activity with a woman under 16 years is rape, but not so if it happens within the institution of marriage even if the girl is as young as 13 or 14, because according to one statute an individual over 12 years is not a child.These realties should ring alarm bells among our legislators who should also focus on introducing amendments to the Marriage Ordinance and replace the Personal Laws that force girls as young as 14 or 15 into marriage.

Yes, finally in an apparent acknowledgement of this lacuna that has led to a plethora of issues, the government has announced that it will be taking the first steps to set right the conflicting ages in defining a child in the various laws, ordinances and regulations,and establish a single and consistent definition that will allow any existing ambiguities that is damaging to the child to be closed for good. If this sees the light of day, then kudos to our legislators.

Jennifer PaldanoGoonewardane
Women News