By Kirsty Anantharajah –
International and domestic studies, articles and reports in Sri Lanka are steadily illuminating the extent of sexual violence committed against women (and men) in the context of the war and times of ‘peace’. Justice and accountability for these harms, however, remain noticeably absent. Apart from a handful of cases, impunity forms the dominant landscape of Sri Lankan women’s experience with seeking redress for sexual violence. Hope for any relief from this current state of injustice and inaction will depend on the re-establishment of the Rule of Law; yet the numerous loci of impunity within the justice system makes this a particularly challenging task.
Institutional cultures of custodial rape and torture
In 2001, Sivamany Sinnathamby and Wijikala Nanthakumar, were arrested in their Mannar homes by navy officials and members of the Police Special Investigation Unit. They were arrested under the Prevention of Terrorism Act (PTA) and the Emergency Regulations, and were taken to the office of the Counter-Subversive Unit. The two women were brutally raped and tortured in custody: The torture continued until the women signed confessions in Sinhalese, (falsely) affirming that they were members of the Liberation Tigers of Tamil Eelam (LTTE) who had carried bombs to Mannar. When Sivamany and Wijikala were initially examined by the Judicial Medical Officer (JMO) in Mannar, no evidence of rape was reported. This outcome led to a significant community outcry and the women were re-examined by the Colombo JMO; the results of this examination showed strong signs of rape. One rationale for the initial finding at the office of the Mannar JMO, is that the women, following intimidation, did not actually allow any medical examination to occur. If community pressure did not result in a second examination, the women’s case would lack the essential medical evidence upon which successful prosecution rests. Three police officers and nine navy personnel were later identified as perpetrators.
Following the police complaint made by Sivamany and Wijikala, a campaign of intimidation by the perpetrators and their associates spread beyond the victim-witnesses to the women’s community. The Tamil Guardian notes that the Mannar Citizens’ Committee, vocal supporters of the women’s search for accountability, began receiving daily calls threatening to murder all the members of the committee at the conclusion of the trial. The journalist who first reported the detention and rape of the Mannar women, was detained, interrogated and harassed by army personnel. Members of the armed forces also threatened Wijikala’s mother.
Their case finally came to trial after five years; this is not an uncommon delay. Initially heard in the Mannar High Court, the case was later transferred to Sinhala-majority Anuradhapura district in an obvious prioritisation of the accused. During proceedings, the Tamil victim-witnesses experienced further intimidation and humiliation. In 2008, the hearing was stopped on a stay order of the court, one victim-witness having fled the country, and the other refusing to give evidence.
This case in many respects exemplifies women’s lived experience of Sri Lanka’s Rule of Law crisis. This 15 year old case paints an alarming yet accurate picture the search for justice for sexual violence in Sri Lanka: the women who lived through this brutal attack in their early 20s are now approaching 40; their case still has not been met with proper process or a just outcome; and the structural problems that plagued their path to justice remain largely unchanged in today’s Sri Lanka.
Arrests under the PTA and confessions in custody
This practice of using rape and torture to coerce false confessions and admissions was commonplace during the war and endures in this post-war period. This institutional practice is strongly linked to the legislative framework under whose auspices these arrests generally occur – The PTA.
The Prevention of Terrorism (Temporary Provisions) (Amendment) Act No. 10 of 1982 (PTA) despite bearing the words ‘temporary’ within the title itself was made permanent in 1982, and still constitutes a significant part of Sri Lanka’s security and legislative framework. As put by Amnesty International, the PTA is ‘one of the main legal tools deployed by the government to silence its critics’ and places persons detained under its provisions in a type of ‘sinister limbo’.
The PTA continues to be the antithesis of progress towards greater civil rights in Sri Lanka; and its permissive provisions create legal spaces for arbitrary arrests to thrive. One example is that generally, confessions made under ‘inducement, threat or promise’ are inadmissible, however, the PTA reverses the burden of proof: confessions made while in custody are prima facie admissible unless the victim can show that they were made under duress. Furthermore, the PTA confers a broad immunity on officers for actions done in ‘good faith.’ While it is hard to understand how rape or torture could ever be considered an act done in ‘good faith,’ this section adds to the largely uncontroverted expectation held by some members of security forces that rape in custody will not be met with legal consequences. This expectation is bolstered by the fact that the PTA, with its historic context of operating amidst secrecy, does not provide for access to lawyers nor does it facilitate access to independent medical assessment upon arrest. These are a just some of the legislative hooks upon which rape and sexual violence in custody are hung. The PTA must be repealed.
Once a complaint is made prosecution of these cases require overcoming further obstacles. It is important to note that prosecution of rape cases rests with the Attorney General, whose office is vested with broad powers to withdraw indictments and terminate High Court proceedings. Where state actors are involved, prosecution has been conspicuously reticent.
The transfer of criminal proceedings between courts is one reflection of an overwhelmingly politicised Attorney General’s office. This practice exacerbates enduring ethnic barriers to justice: Tamil women whose cases are transferred to Anuradhapura find the travel challenging, they may not understand the language used in court, and often feel like they are in an antagonistic space.
There is also no redress if victims and witnesses are intimidated in the way that Sivamany and Wijikala were intimidated. Even though Sri Lanka’s Parliament passed the Witness Protection Bill in February last year, this does not signify a different civil context than that survived by Wijikala, Sivamany and their community. The Witness Protection Act is deeply flawed; the fundamental issue is that there is no independent division outside the Police Department responsible for protection of victims and witnesses. Where a victim seeks protection following violence by a state actor, their protection is entrusted to the same department to which their abusers belong.
The delays in the judicial system further compound this lack of security, discouraging complainants to pursue justice. Partly due to Sri Lanka’s two-tier system involving protracted non-summary inquires, many cases take between 9 and 12 years to reach a conclusion. Thus although Wijikala and Sivamany survived the initial attack, and years of relentless intimidation, they eventually gave up on the pursuit of justice.
Hope for any relief from this current state of injustice and inaction will depend on the re-establishment of the Rule of Law in Sri Lanka; yet the numerous loci of impunity make reform a particularly challenging task. The Sri Lankan state must begin to engage with the voices of Sri Lanka’s women who have been brutalised and left to navigate a fraught system. Remedying these domestic systemic ills is a crucial step to the state repairing its relationship with its women.
*This article stems from Chapter 2 ‘ Crisis of Legal indeterminacy’ that the author co-wrote with Kishali Pinto-Jayawardena in The Search for Justice: The Sri Lanka Papers (Zubaan: 2016). A version of this article appeared in the Open Democracy. Kirsty Anantharajah is a Sri Lankan-Australian feminist and legal scholar based in Sydney, who is currently working in refugee protection.