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Spare the rod because …

Published:Sunday | December 27, 2015 | 12:00 AMDionne Jackson Miller, Contributor
Dionne Jackson-Miller

Put aside discussions about the advantages and disadvantages of corporal punishment for a moment.

I'm positing, instead, that by continuing to allow corporal punishment, Jamaica is in breach of its obligations under the international treaties we have signed, and also that corporal punishment is now arguably unconstitutional.

Corporal Punishment in Schools

Jamaica ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1991.

The UNCRC does not specifically prohibit corporal punishment.This has, however, been interpreted as the effect of the treaty by the committee which monitors and interprets the convention.

Article 37 prohibits torture or other cruel, inhuman or degrading treatment or punishment, while Article 19 places a duty on states to take legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse ... ."

The committee has repeatedly stated that corporal punishment is incompatible with the convention. For example, in a 2001 General Comment on The Aims of Education, it was noted that "children do not lose their human rights by virtue of passing through the school gates ... ."

In 2006, the committee stated in another General Comment, "The committee defines 'corporal' or 'physical' punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light" and said that "in the view of the committee, corporal punishment is invariably degrading."

The committee, as far back as 1995, identified corporal punishment of children as an area of concern in relation to Jamaica's fulfilment of its convention obligations.

Jamaica also ratified the International Covenant on Economic, Social and Cultural Rights in 1975. The committee monitoring that convention stated in 1999 in a General Comment on the 'The Right to Education': " ... Corporal punishment is inconsistent with the fundamental guiding principle of international human-rights law the dignity of the individual."

 

NATIONAL LEGISLATION

Jamaica has banned corporal punishment in certain circumstances. Section 16 (1) of the Early Childhood Act prohibits corporal punishment in early childhood institutions, while Section 62 of the Child Care and Protection Act gives children in a place of safety, children's home or in the care of a fit person the right "to be free from corporal punishment".

The Child Care and Protection Act has to be interpreted and administered so that the best interest of the child is the paramount consideration, and in accordance with the principle that children are entitled to be protected from abuse, neglect and harm, or threat of harm.

Section 9 of the act has given rise to a divergence of opinion on its impact on the legality of corporal punishment, as it states that an adult who has custody or care of any child commits an offence if he wilfully assaults, physically or mentally ill-treats, neglects, abandons or exposes such child in a manner likely to cause that child unnecessary suffering or injury to health . The divergent opinions were gleaned from government documents obtained under the Access to Information Act.

A 2006 letter from then Children's Advocate Mary Clarke to then Education Minister Maxine Henry-Wilson expressed the view that Section 9 protects all children, and that "apart from a modest spanking, corporal punishment is in contravention of the laws of Jamaica".

A 2011 report on the legality of corporal punishment in Jamaican schools, however, outlines the attorney general's position that the reasonable chastisement defence was based in common law (rulings in court cases), and that repeal of the Juveniles Act and subsequent passage of the Child Care and Protection Act, therefore, did not affect the legality of corporal punishment that is reasonable, moderate, takes into consideration the child's age and education and is administered with a proper instrument.

The attorney general's opinion relies on the legal presumption against alteration of the common law unless expressly stated in a statute. The express abolition of corporal punishment by statute in certain settings only would seem to bolster the argument that it was not Parliament's intention to abolish corporal punishment across the board, and that the punishment remains lawful.

The overriding consideration must now, however, be the constitutionality of corporal punishment.

 

THE CHARTER OF RIGHTS

Assault is a criminal offence. Assault of a child should, therefore be a criminal offence unless there is a defence. The defence in cases of corporal punishment is reasonable punishment, dating back to a 1938 English case called Ryan v Fildes.

In Ryan v Fildes, a teacher hit a boy on his ear, causing him to suffer some deafness.

The court said the teacher's action "exceeded reasonable and proper punishment" and that "... when a parent sends his child to school, he delegates to teachers at the school the power to inflict reasonable and moderate corporal punishment when required ... ".

I believe the passage of the Charter of Rights has now overtaken the common law.

The Charter of Rights states, in Section 13, that no organ of the State shall take any action which infringes rights accorded under the charter. These include the right to equality before the law; the right to equitable and humane treatment by any public authority in the exercise of any function; the right of every child to such measures of protection as are required by virtue of the status of being a minor or as part of the family, society and the State; and the right to protection from torture, or inhuman or degrading punishment or other treatment .

The charter's so-called savings clause, which states that any form of punishment which was lawful before passage of the charter shall not be regarded as torture or inhuman or degrading punishment,may pose difficulties to a challenge under the right to protection from degrading treatment, the provision which has been generally used in other jurisdictions to challenge corporal punishment.

But arguments can certainly be made that a legal defence to assaulting children that does not exist in relation to adults violates the child's right to equality before the law; that infliction of corporal punishment in schools violates the child's right to equitable and humane treatment by public authorities; and that children have a right to protection from corporal punishment precisely because they are minors, and part of the family, State and society.

 

RECOMMENDATIONS

I am suggesting that we use as a guide, the 2004 ruling of the Canadian Supreme Court in Canadian Foundation for Children, Youth and the Law v Canada.

Under Canada's Criminal Code, "intentional, non-consensual application of force to another is unlawful". Section 43 created an exception for "reasonable" physical correction of children by parents and teachers. The Canadian Foundation for Children, Youth and the Law challenged the exception.

The court upheld the exception, but limited its application, saying that Section 43 did not protect "conduct that causes harm or raises a reasonable prospect of harm". This limits its operation to the mildest forms of assault.

The court declared that corporal punishment:

• of children under two years is harmful, and has no corrective value given their cognitive limitations;

• of teenagers is harmful, because it can induce aggressive or antisocial behaviour;

• using objects, such as rulers or belts, is physically and emotionally harmful;

• involving slaps or blows to the head is harmful; and

• contemporary social consensus is that, while teachers may sometimes use corrective force to remove children from classrooms or secure compliance with instructions, the use of corporal punishment by teachers is not acceptable.

I am, therefore, suggesting:

1. Abolition by statute of corporal punishment in schools, but allowing for use of the least force, when necessary, for example to restrain a student posing a danger to him/herself or others;

2. Retention of corporal punishment in the home but with restrictions following the Canadian model;

3. Implementation of a public-education campaign on alternative methods of punishment;

4. More training for teachers in alternative methods of discipline and more support for teachers in overcrowded classrooms (and, of course, a plan to eliminate overcrowded classrooms).

- Dionne Jackson Miller is a journalist, and attorney-at-law, who holds a Master of Laws specialising in human-rights law. Email feedback to columns@gleanerjm.com.