By Basil Fernando –
The film by Prasanna Withanage titled “Usaviya Nihandai” (“The Court is Silent ”), is being shown not in cinema halls only, but also at popular gatherings. I had the privilege of attending four such gatherings in different parts of the country, in Panadura, Negombo and two showings in different parts of Kandy. In each instance,about 30-40 persons watched the film, and discussed it among themselves.
The stories in this film have been known to the public for a long time. The newspaper ‘Ravaya’ has reported on them, books have been written and television discussions held on the stories. They relate to a magistrate, Lenin Ratnayake, who allegedly raped two women. These women were the wives of two prisoners, who were being held at the time of the incidents. The film re-tells the stories and after viewing the film people had an opportunity to discuss them.
The common issue that emerges is, why have these cases not been prosecuted? The discussions turned out to be a folk discussion on interesting questions of criminology.
Who decides what is a crime, was a common concern. Some thought it was the police, others the attorney general. Who can decide not to prosecute a crime? The consensus seemed to be that prosecution or non-prosecutions in Sri Lanka were optional. There was no strict obligation to prosecute crimes. Many persons gave examples of cases known to them that were not prosecuted. There appeared to be a large amount of materials on an interesting sociological study on how alleged criminals are selected to be prosecuted or not prosecuted. For example, how illicit liquor sellers select a few bottles from their wares, send some to the police to be produced in court and pay a fine. It appears that particular police officers visit these places. In fact, it is a well-organized practice known to senior police officials.
Most alarming was: none of the viewers were surprised that the magistrate in these stories had not been prosecuted. Almost all viewers are of the opinion that it is the poor person that is prosecuted. Had it not been for the intervention of a conscientious journalist, who gave a hearing to these unfortunate women, nothing would have been heard of these incidents. This was the common view held.
The general consensus among the participants was that a fair system of criminal investigations, prosecutions and judicial actions have not evolved in Sri Lanka-as expected of a functioning democracy. A common question posed was: is Sri Lanka really a democracy? Can a judge in a democracy do what this particular magistrate is alleged to have done? Can it be characteristic of a democracy to be reluctant to take action when such stories have been reported to the relevant authorities? We are writing here of the judicial services commission, the police and higher judiciaries.
After all, the alleged crimes were related to two instances of rape and other forms of abuse of power which allowed them to engage in these crimes. As for the Penal Code, rape carries a sentence of 20 years of rigorous imprisonment. There is no doubt that this is one of the most serious crimes recognised in our law. However, despite the enormous publicity that was given to these incidents, no criminal investigation has taken place.
Who is responsible for the failure to initiate an investigation into such serious crimes? According to the Criminal Procedure Code, it is the officer in charge of the police station which receives the complaint. He is responsible for carrying out such an investigation. If he does not, there is the assistant Superintendent of Police. His duty is, to ensure that all serious crimes committed within the territory of his jurisdiction, are investigated and followed up. These cases are being talked about all over the country. And the Inspector General of Police himself has a responsibility to ensure that an investigation into the crime takes place. The obligation to investigate a serious crime that is reported is on the State. Ultimately, the failure to investigate is a matter for which the Sri Lankan State should be held responsible.
However, those participating in these discussions raised the question: what does it mean to be responsible? In a country following the principle of the rule of law strictly–to be responsible means that the person who fails to carry out his responsibility should be punished. If the officers who fail to carry out their duties are not punished, no functional system of justice exists.
In these cases we find two types of offenders; one is the Magistrate who abuses his position in allegedly committing two rapes; the other type is the officers who fail to carry out their duties to investigate. Again, the question that kept surfacing in these discussions was, how can we call such a system a democracy?
The allegation that the Attorney General and the Chief Justice prevented any action being taken again poses questions. Under what provisions of the law has an Attorney General or a Chief Justice have the power to prevent investigations into a serious crime? Obviously, acts of such a nature are themselves serious transgressions of democratic norms. The fundamental norm that such an Attorney General or Chief Justice would violate is the most basic principle of “equality before the law”.
Within the rule of law system in a democracy, no one can claim impunity for commission of a crime. However, in feudal times in Sri Lanka, there was another system that had a different principle. It was this: those belonging to the lower castes in society should be punished severely, even for a minor transgression, while those belonging to the upper castes would enjoy impunity for the commission of even grave crimes towards the lower castes. This doctrine known as the “the doctrine of disproportionate punishment “, was well entrenched in Sri Lanka for over 1500 years. It was introduced into the country through Indian Brahmin influence. Although the introduction of modern criminal law principles were done by the British, it appears that such principles did not sink deeply into the Sri Lankan psyche. The principles which have prevailed over many centuries have created social as well as psychic habits which do not go away easily. But such habits can be erased. There has to be a strong resistance against such feudal practices. It must be coupled with a widespread repugnance towards a discriminatory caste system–based on the idea of a graded humanity. In Sri Lanka such resistance is repugnant. It does not exist among those who are still influenced by a feudal values system. In the end, modernisation has been suppressed and the old ways survive.
This situation then becomes critical. The justice system in the country is seriously undermined by such feudal values that contradict the very core of democratic principles. If the justice system carries such a heavy weight of old prejudices, how can a modern democracy grow under these circumstances?
Those participating in these discussions made the point. It is not only in the instances of rapes by a magistrate that the old system manifests itself, but also in the overall framework of the administration of justice. It pays little attention to the rights of its citizens. The prolonged delays in adjudication are a manifest feature of the Sri Lankan Court system. It shows how carelessly the people’s right to justice, without undue delay, is ignored. In general, the manner in which the poor are treated in the courts and by the police is contrary to the notions on which modern democratic societies are built. Polite and mature treatment of each person is in agreement with the idea of equality, fraternity and liberty–the core values of a democracy. When even the courts neglect these principles, what hope is there for the acceptance of democracy in Sri Lanka? Such are the agonising questions people are discussing these days. And they find no way to discover any meaningful explanations to their queries.