By Ruwan Laknath Jayakody –

Ruwan Jayakody

Staying true to that ancient Sinhalese adage “yana yaka koraha bindagena yanawa wagey (loosely translated to ‘the departing devil breaks the crock on his way out’)”, outgoing Executive President Maithripala Sirisena has been busy violating the powers conferred upon him as per Article 34 of the Constitution to grant pardons to offenders. First, it was Bodu Bala Sena General Secretary Galagoda Atte Gnanasara, convicted over contempt of Court, who was released, followed by Former Warakapola Pradeshiya Sabha Chairman and Sri Lanka Freedom Party Member (a conflict of interest as he was the Party Chairman at the time), Makewitage Lakshman Pathiraja Samarasinghe, convicted over bribery, and now it is Don Shramantha Jude Anthony Jayamaha (also a conflict of interest as he is distantly related), convicted for murder in the infamous Royal Park (a reference to the luxury apartment complex which was the scene of the crime) murder case. In the latter case, where the death sentence was imposed on Jayamaha, there is no mention made in Sirisena’s official statement nor the subsequent clarification issued in justification of the pardon granted to free Jayamaha, that the procedure (in keeping with due process) laid down in the proviso to Article 34(1)(d) as per which – the President has to first seek and obtain a report from the trial Judge, which he has to then forward with instructions to the Attorney General (AG) for advise, and thereafter the AG’s advise and the said report has to be sent to the Minister of Justice, and the latter has to thenceforth send his/her recommendation and the report to the President – has been followed. This foul Executive fiat emanating from the kangaroo Court of Sirisena is therefore in blatant disregard of the rule of law, and has made a mockery of good governance, and worse still, also constitutes a coup de grace to the independence of the Judiciary.  

In 2014, the Supreme Court upheld the death sentence imposed on Jayamaha by the Court of Appeal (he was previously sentenced to 12 years of rigorous imprisonment by the Colombo High Court) for the 2005 murder of 19-year-old Yvonne Jonsson in what is infamously known as the Royal Park murder. President Sirisena who has, in all his loony wisdom, tirelessly campaigned to have the official moratorium on the death penalty lifted, has in a volte-face, since pardoned Jayamaha upon requests and recommendations made to him in this regard and has cited model behaviour/conduct while in Prison for, according to Sirisena, a youthful indiscretion a la crime of passion, and also because Jayamaha has pursued higher studies including a doctorate whilst in prison. 

In reality, the Court was informed during the murder trial that the deceased’s skull had been fractured to 64 pieces, the result of the victim’s head being bashed on the floor. 

The deceased victim’s sister, Caroline Jonsson-Bradley, in recent Facebook posts, also noted that the murder was entirely premeditated and that the allegedly rehabilitated convict had never apologized to her family.  

“He waited for her outside our apartment, even though he pretended to me that he was going home. During this time, he arranged with a friend (who would later change his testimony in Court to provide the murderer with an alibi) to be collected at a later time. When my sister arrived home, he chased her from the 23^rd floor, pushed her, strangled her and then smashed her skull on the cement floor. She fought for her life, even running from her attacker with broken ankles. She was found on the 19^th floor. The murderer did not stop after strangling my sister to her death; he continued his attack by smashing her face numerous times on the floor. I still recall sitting in Court and hearing how her skull was fractured into 64 pieces. My father had to identify his daughter in the morgue with no face. He then tried to remove evidence by washing my sister’s blood off himself in the swimming pool, went into hiding and even purchased a flight ticket in an attempt to flee his crime,” she said.

She observed that while countless Sri Lankans are in custody for lesser crimes, the President had chosen to pardon a prisoner convicted of premeditated murder.

She concluded saying that Sirisena had once again inflicted unbearable pain on her family, and added that, “The reasons given in your public speech in no way justify the pardoning of a murderer. You will now be attached to this case forever and for all of the wrong reasons. It would be impossible for any action to make better what happened to my sister and the subsequent pain for my family, but you have used your Presidential power and ended your term by succeeding in making it even worse”.

For his part, Jayamaha, in a post-pardon/release open letter, asking for a second chance, which contained a specific address to the Jonsson family, claimed that he “never intended to harm anyone” and that “Sadly, I know that nothing I can ever say or do, will make this go away and make things right for you, although I so wish I could. I’m so ashamed for what has happened. This has caused immeasurable pain to all of you. There has only been sadness, loss and grief throughout these 15 years for everyone. I have tried many times to contact you and express my heart, but I was never successful. I can’t replace Yvonne Jonsson, and even if you don’t believe me now, I will keep on trying to make amends”.

Elsewhere, the Presidential candidates recently in the fray for the 16 November 2019 Presidential Poll had from the bully pulpit of political stages, vented their self-righteous spleen at laws delays, the latter being the totem of systemic ills plaguing the justice system, and have claimed sagaciousness and being in possession of both the requisite political will and an assorted bag of poli-tricks, to introduce as legislative and structural amendments, in terms of legal reforms, in order to remedy the garbled tongues and variegated shrouds that make up the applicable domestic legal regime. On the subject of women’s and children’s rights, they have uttered further such profundities as to make one weep for joy despite their deafening silence regarding the sexual assault on a feeble minded female by a supporter of a particular political party. But on the related issue of sexual violence, an ever present concern, there seems to be no rabbit to pull out of the hat. All reforms proposed with varying urgency over the years, such as criminalizing marital rape and female genital cutting/mutilation, amending the Muslim matrimonial/personal law to ensure the basic human and fundamental right to equality, decriminalizing abortion in certain specific instances under a heavily regulated process in order to recognize bodily integrity and physical autonomy, and also guaranteeing the rights of persons with diverse gender identities and sexual orientations, to name a prominent few, have all but been conspicuously scuttled by the elected lawmakers and unelected policymakers, owing in part to their communal fear of non re-election and to their wild eyed view of 21^st Century realities. Therefore, in consideration of much needed reforms, especially to the criminal justice system, the following is proposed as a reform to be considered by their, one hopes, good graces.

The Serpent in Eden’s Garden and the Fallen Angels: Constitutionalising a National Sex Offender Registry

“Ladies and gentleman of the jury, the majority of sex offenders that hanker for some throbbing, sweet-moaning, physical but not necessarily coital, relation with a girl-child, are innocuous, inadequate, passive, timid strangers who merely ask the community to allow them to pursue their practically harmless, so-called aberrant behaviour, their little hot wet private acts of sexual deviation without the police and society cracking down upon them. We are not sex fiends! We do not rape as good soldiers do. We are unhappy, mild, dog-eyed gentlemen, sufficiently well integrated to control our urge in the presence of adults, but ready to give years and years of life for one chance to touch a nymphet. Emphatically, no killers are we. Poets never kill.” ― Vladimir Nabokov, Lolita

During the furore surrounding the fiasco that was the initial Police investigation into the atrocity which was the September 2015 abduction, rape, grave sexual abuse, and strangulation murder of a four-year-old girl in Kotadeniyawa, the fact that the ultimate convict was a self-confessed stalker cum scopophiliac and underwear fetishist against whom multiple Police jurisdictions had prior to the incident for which he was sentenced, received several complaints of sexual misdemeanors, which amounted to little in the way of subsequent action from a law enforcement standpoint, and the fact that the first judicial medical officer to arrive at the site of the body, observing the crime scene including the violence of the injuries, inferred that the crime was a combination of pedophilia, sadism and possibly necrophilia, whose escalation in criminal confidence and motive showed the perpetrator likely to be or become a serial offender, who in the best interests of all, was a predator to be captured before the next unsuspecting prey cum victim, slipped the mind of all. This was a crime to be solved fast and forgotten faster. 

This beggars the question as to whether a national sex offender registry could have helped prevent the crime from occurring in the first place.

A sex offender registry system, which could be conviction or offence (violent/non-violent) based and/or risk (of recidivism) based, through the collection, analysis, maintenance/management and the dissemination of personal information of variously classified sex offenders who are mandatorily registered (for certain periods), provides for the monitoring and tracking of the activities and travel related movements of sex offenders, and thereby serves dual purposes in the authorities offensive against crime, whereby it is at once an instrument of implementation which allows law enforcement agencies, access to vital information that may not just assist in punitive action but more importantly in taking preventive measures, whilst on the other hand, allows for communities to take proactive steps in ensuring their safety and security based on information disclosed and notified to and shared with the public by law enforcement or obtained by the public via limited/unlimited access to the sex offender registry database. 

Yet, the flipside of such registries is that the laws tend to be excessive in their reach and in some cases, completely out of proportion (as exemplified by the recent case in the United States where a five-year-old elementary schooler who is also a special needs – autistic – child was reported by the school staff to the child services authorities after facing censure for incidents of overstepping boundaries through unwanted public displays of affection such as the hugging and kissing [on the cheek] of classmates – the child has since been moved to a different class and teacher), thus trespassing on human liberties and violating the rights of sex offenders including juveniles ranging from convicts, convicts who have served their time, those whose sentences have been suspended, those on supervised release, parolees, those on probation, those named as accused, suspects who have been enlarged on bail, and also those of their families – rights such as privacy, reputation, due process (substantive/procedural), equality/equal protection, and lawful employment and livelihood, and freedom from cruel, inhuman, degrading treatment or punishment, and arbitrary arrest, and the freedom of association and movement, speech and expression (including publication), and the right to information – through the numerous mandatorily required stringently restrictive conditions and rules imposed on them including on proximity to minors/underage persons, housing, Internet access, and even the ownership of certain materials (like toys), thus giving rise to a host of other social issues including victimization (being relegated to State imposed persona non grata/pariah status as a class of undesirables) resulting from these injustices. None other than the US Supreme Court has been accused by academics of relying on untenable statistics and false facts on recidivism when repeatedly upholding the constitutional validity of such laws. In terms of culpability, the histrionic excesses of the #Me Too movement also factor in. 

However, whilst acknowledging the presence of irreversible forms of deviant sociopathy and psychopathia sexualis, an evil for society to be delivered from according to hypocritical societies which also tend to conveniently forget that these freaky and pervy Frankensteins are to varied degrees the mea maxima culpa progeny of societies that wittingly and unwittingly perform the function of Victor Frankenstein, and in a content where research has suggested that sexual attraction towards minors may be a paraphilia one is born with, it must be noted that certain categories of sex offenders who were productive citizens, themselves in some cases, victims of abuse or childhood trauma, stigma (owing to gender identity and/or sexual orientation), circumstances (intoxication or the development of romantic feelings in inappropriate settings or towards inappropriate categories of persons), among others, can continue to be productive members of society (as for example, virtuous paedophiles), if only they were provided with the appropriate support services in the form of treatment, correction, rehabilitation,  and reintegration into society. 

This is a case of balancing the interests of prevention with the right to protection.

Therefore, this is a call for the relevant authorities to look at the possibility of establishing a national sex offender registry system in Sri Lanka and to formulate a policy guideline for lawmakers to responsibly navigate the complexities entrenched in establishing such a criminal law based legal framework cum regime for a rational, humane, and ultimately effective national sex offender registry.