The Hon. M. Nizam Kariapper, PC

¶ 01 Hon. Deputy Chairperson of Committees, before I comment on the Penal Code (Amendment) Bill, I must express gratitude to Hon. Bimal Rathnayake, though he is not here. On behalf of all MPs of Ampara District, and on behalf of all MPs, and our party, we thank Hon. Minister Bimal Rathnayake. When advancing the Ampara District development program under his subject, he called for proposals from all MPs; we all gave over 100 proposals. Without any change or discrimination, he accepted them, and under the chairpersonship of our backbencher Hon. Rathwatte, a committee has been appointed. We hope, going forward, that committee will also implement development without any discrimination.

¶ 02 In Tamil too, I must thank Hon. Minister Bimal Rathnayake for inclusive development in Ampara District, obtaining all proposals without bias and setting up a special committee under Hon. Rathwatte to implement them beyond political differences.

¶ 03 Now, to the Bill. I again thank Hon. Bimal Rathnayake because he admitted in the morning there are issues in this Bill and that they would not pass it today — not calling for a Division or taking up the Third Reading, I believe.

¶ 04 Much debate has occurred. The Government side might think if Opposition Members propose amendments, it could be misread. But it is not so.

¶ 05 Let me clarify. The relevant clause is introduced as Section 308A to the Penal Code. Hon. Deputy Chairperson, a small fear has arisen: generally in the Penal Code, for offences, whether the mental element — mens rea — exists or not matters. For statutory rape too this question arose. Among teachers and parents there is some doubt. You must dispel it. Much was read about section 308A. I listened; one Hon. Member spoke about judgments. The wording in the new 308A states:

¶ 06 “As a measure of punishment or as a means of correction, with knowledge that it would cause at least some degree of pain or discomfort, however slight…”

¶ 07 The unspoken part is “with knowledge” — the knowledge. That applies to both physical and psychological. The real issue here is that the word “intention” is omitted.

¶ 08 Lawyers in this House will appreciate: causing death with intention or with knowledge that death is likely falls under Sections 294–296 (murder). There is also Section 297 — culpable homicide not amounting to murder — where even without full mens rea, if there is knowledge, liability attaches. The second threshold is Section 298. Mens rea sits at this second threshold. So there is a small problem: the word “knowledge” is placed at the lowest threshold. The biggest fear is that knowledge of causing physical or mental pain becomes an objective test.

¶ 09 Order was sought and granted to extend time.

¶ 10 In Justice S. Thurairaja’s latest judgment, quoting the UNCRC definition of corporal punishment, the term “intended” is used — intention. He further says UNCRC cannot be read as supportive of any form of corporal punishment, while noting rejection of corporal punishment is not a rejection of discipline. His well-known judgment Karunapala and others v. Siriwardhana and others, SLLR 2021 Vol. I, also bases criteria on intention.

¶ 11 But here only “knowledge” is used. I think Hon. Deputy Minister Sunil Watagala would also appreciate this distinction. Therefore, it is fair to refer this Bill back to the Sectoral Oversight Committee on Governance, Justice and Civil Protection for independent expert input, free of political interference. I fully support the objective, but let us not make “knowledge” the operative standard.

¶ 12 Courts do not interpret with blindfolds; they consider society and culture. Still, when we codify, we bear responsibility, including internationally. Even recently a court said to me, “You are in Parliament; you should have looked into this.” Therefore, we should clarify the legal consequences of using “knowledge” versus “intention” by consulting experts — the Attorney-General’s Department, and UN-affiliated child protection bodies. Thank you.