By Basil Fernando –
Basil Fernando
Deterioration Of The Legal Intellect (9): The Rape Victim Who Got Hell Of A Justice
Rita, a rape victim visited the Magistrates Court 24 times between 2001 and 2004. Then, the case was referred to the Attorney General for the filing of indictment. The visits she made to the High Court thereafter, and reasons for postponements, are catalogued as follows:
Case No: HC 57/2007
High Court – Kandy
Case Dates:
23rd October 2006: Indictment filed by the Attorney General
23rd February 2007: Indictment received by the Kandy High Court. Summons issued to the two accused
26th March 2007: The two accused were granted bail.
27th April 2007: 1st and 2nd witnesses summoned as prosecution witnesses.
18th October 2007: Productions were not presented in court.
01st February 2008: The Judge was absent.
30th May 2008: The State Counsel was absent.
30th January 2009: The State Counsel reported that there are two indictments with the same charges. Therefore, the matter was referred to the Attorney General. The Judge was absent.
15th May 2009: The matter was pending for Attorney General’s advice.
23rd June 2009: HC 260/2008 Case was dismissed.
19th October 2009: The matter was transferred to Nuwara Eliya High Court.
Case No: HC NE 48/2010
High Court – Nuwara Eliya
Case Dates:
03rd March 2010: Summons issued for the 1st to 8th prosecution witnesses.
12th July 2010: State Counsel has not received the file.
05th October 2010: 1st accused was absent and a warrant was issued to him.
26th October 2010: The matter was fixed for trial.
20th April 2011: Matter was postponed due to an application of the defence counsel.
09th May 2011: 01st witness (J. Rita) was called for evidence.
Evidence in chief was commenced.
Productions were not presented to the Court.
Therefore, another date was given.
14th June 2011: Productions presented in Court and 1st witness’s evidence in chief concluded.
Cross-examination commenced.
19th July 2011: Further cross-examination.
22nd Nov 2011: Matter was called twice in the absence of the defence counsel and postponed due to misconduct of the defence counsel. The two accused were remanded.
22nd March 2012: Cross-examination and re-examination of witness no. 1 concluded.
05th Sep 2012: 2nd witness Anthonimiuttu Annamary, 6th witness 23851 Alahakoon, 7th witness 22517 Selvanayagam, 9th witness Priyanka, 11th witness 28674 Samayamanthry, and 12th witness 29339 Gunadasa gave evidence. Warrants issued to witness no. 4 and 5.
18th March 2013: State Counsel was not ready for the trial. Defence counsel made an application to recall the 1st witness Rita Jesudasan for evidence. Summons issued to witness no. 1.
10th June 2013: Judge and State counsel were absent.
02nd Sep 2013: Witness No. 4 Kadiravel Palanisami’s evidence concluded.
28th October 2013: Witness No. 5 – Dr. S.A.K.A. Wijesundara was called for evidence. But due to the vague nature of his evidence judge adjourned the case. When the case was taken up in the afternoon the defence lawyer was not present.
29th October 2013: Witness No. 5 – Dr. S.A.K.A. Wijesundara was not present in Court.
16th January 2014: The Judge was absent.
24th March 2014: Witness No. 5 – Dr. S.A.K.A. Wijesundara was absent.
28th May 2014: The Judge was absent.
03rd July 2014: Witness No. 5 – Dr. S.A.K.A. Wijesundara (DMO) was absent. Therefore, J. Rita was re-called for evidence. However, defence lawyer was not ready for the trial and due to this the case was postponed.
25th September 2014: Witness No. 05 – Dr. S.A.K.A. Wijesundara was present in court. Yet, the defence counsel moved a date on personal grounds.
15th December 2014: The Judge was absent.
23rd March 2015: Witness No. 5 – Dr. S.A.K.A Wijesundara’s evidence was concluded and Witness No. 1 J. Rita was re-cross-examined until 5.30 p.m.
26th March 2015: Re-cross-examination and re-examination of J. Rita concluded. A date was given to the State Counsel to conclude the prosecution’s case.
03rd June 2015: Next Date
How long this will go on further, no one knows.
Some day trial court will give its verdict. Then, if the accused are convicted, they will appeal. That would mean a few more years of delay and many more visits to court. By any chance, if the court orders a retrial,(as it had happened in some cases) the whole process will be repeated again. It is not wrong to condemn this kind of conduct of trials as absurd and stupid.
Above all, this kind of conduct is a conspiracy against the rape victim. It only helps the rapists and encourages the repetition of the crime.
A rape trial can easily be conducted and completed within a year, as it is done in many other countries.
It is shocking how judges and prosecutors adjust to this system. If they refuse to cooperate with this maddening scheme, reforms can happen very soon.
Spring Koha / June 5, 2015
With a putrid system like this, should we be surprised when citizens take matters into their own hands and deal out a summary justice. Worse, the continuing acceptance, and growth, of vigilantes as a quick alternative.
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Amarasiri / June 5, 2015
Basil Fernando –
RE: The Rape Victim Who Got Hell Of A Justice
From: 23rd October 2006: Indictment filed by the Attorney General
[Edited out]
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Estate Labourer / June 5, 2015
The primary, nay even sole objective of the drafters of the Criminal Procedure Code and the Civil Procedure Code was to devise a system of administration of justice that would ensure a regular and guaranteed income for lawyers.
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shankar / June 5, 2015
this is o give a message in this male chauvinistic and patriarchal society that women who get raped should just keep quiet about it.
If rita was my sister or girlfriend or wife i would have killed the two accused by giving a contract.It is better to get justice unofficially if official channels don’t work.If i did not have the money to contract it out i would do it myself.
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shankar / June 5, 2015
The solution to this is to bring in a act in parliament that 50% of judges should be women.
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punchinilame / June 5, 2015
Rape case should be directed to Courts where the Judge is a Lady and all Rape cases
should have time-limits fixed so that Lawyers undertaking such cases will charges fees
taking this rule into consideration. Over to BASL and Hon. Minister.
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justice / June 5, 2015
Lawyers live on dates.
This is the simple and real explanation.
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sujeevan / June 5, 2015
The Jack ass legal system by jackass lawyers.
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Sinhala_Man / June 5, 2015
Did Rita have to appear in Open Court 24 times? Given the mores of our society, it may not be an exaggeration to say that she had to suffer twenty-four emotional rapes after the initial physical abuse.
Unless Judges, Prosecutors, Doctors and even Defence Lawyers can demonstrate that the postponements were for reasons beyond their control, they deserve to be jailed! I know that it’ll never happen, but that’s how it should be if there were anything ethical about the implementation of the laws of the state.
Thank you, Basil Fernando, for highlighting these facts.
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Sinhala_Man / June 5, 2015
How careless of me! I skimmed through this and thought it terrible that this lady had to appear 24 times in Open Court. And on that misapprehension posted a comment.
But no, that was in the Magistrate’s Court, followed by ordeals in High Courts, which add up to a total of 60 appearances. This is mind-boggling!
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ramona therese fernando / June 5, 2015
This goes to show that the judicial system in Sri Lanka is too slow and stupid in dealing with the complexities of rape issues. The myriad of details that need checking against each other are overwhelming. So, rather than coming to an honorable decision, attorneys and lawyers prefer to evade the issues, because there also no fixed guidelines on how to proceed within a uniquely Lankan scenario, especially when the guidelines that come from the top are out of synch with the masses.
Women and children’s issues should be dealt with conscientious, discreet persons who will work quietly in the background who understand the local culture, and who the local person can relate to. But when a former beauty queen takes on this department, it is more of dealing with a show status. Such a person should be foreign minister or ambassador – Obama will be awed, and will work a lot of good in West-Sri Lankan relations.
The last thing women in Sri Lanka need is for their issues to be of conceptual posturing of the time of the Western suffragettes – “We want to have the right to wear what we want,”……..”we want to be whatever we want to achieve,”……”we have the right to be assertive,”……… “we have the right to do whatever we want with our bodies”…..…”we need to dress and act with a certain deportment.”………..shezz……enough of the show and tell. We are not America of the 1800’s…..we are not Saudi Arabia. Sri Lanka has her own history and culture.
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Navin / June 8, 2015
Are you suggesting that the beauty queen should be fired and a Vattiamma from Mariakade should be placed in charge?
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ramona therese fernando / June 9, 2015
It’s like that story of the king, you know,…… who wanted a person to look after his infant daughter. So, the king decreed that all the women of the land show him their hands.
All the women of the land polished up their fingernails and softened their hands with the cream of asses milk for a week.
After a week they all paraded before the king to show them their hands. He kept rejecting all of them and was sorely disappointed at the hands he saw.
Finally a poor looking woman, who was hiding in the corners, was pushed forwards. She timidly put out her hands for the king to see.
Her hands were a bit rough, finger nails while clean, were un-polished, and her hands were rounded and plumpy looking.
The king examined these pair of hands, and asked the woman why she had not gone to the manicurist like all the other women.
The woman fell in prostrate before the king. “Your Majesty,” the women wept, “I had no time because I was looking after my 10 children. Please forgive me for coming forth before thee with these hands.”
The king raised the woman up. Before the whole council he said :
“Here indeed is the woman who will take care of the baby princess.This kindly hardworking Vattiamma from Mariaville is the only one in the land who has the love and experience to nurture and care for my little princess, teach her the realities of masses that I rule herein, and protect her from invaders in the event of invasion.”
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JULAMPITIYE AMARAYA / June 5, 2015
Mr Basi Fernando.
Dear Sirs, I have Easy System for the Judgment.
The Incident of Rape Happened in 2001 or so.
And
23rd October 2006: Indictment filed by the Attorney General,
26th March 2007: The two accused were granted bail.
If they Can Solve this Rape case out of court system, Why Worry.
Victim goes Home, And The two Accused go To hell!!!!!.
why not!!!!!
If I am The Father, Brother Husband or Boy friend of the Victim,
26th March 2007: The two accused were granted bail and when they come out of the Court house!!!!??????//.
I WILL SHOOT THEM BOTH TO DEATH!!!!!!.
That is my judgment if, I am The Father, Brother, Husband or Boy friend of the Victim
F xxxx ing Judical System of sri lanka?????.
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MR / June 5, 2015
Girls were safe in LTTE areas because no one dares to commit any crime due to instant harsh punishment by the LTTE. Bring back LTTE Courts and hand over the criminals. Lawyers too behaved well as expected.No dates or excuses. prescribed fees only.
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Paul / June 6, 2015
Oh yes the LTTE areas were totally free from crime. No children kidnapped, no prisoners tortured in underground cells, no rival Tamils slaughtered. Life must have been just f@@king wonderful.
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JULAMPITIYE AMARAYA / June 6, 2015
MR,
Did you have an any idea of the Who are the torturers of LTTE Camp’s at Mallawi, Thunukkai torture Chambers.
May Be You are One Of them??///???????.
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Sinhala_Man / June 6, 2015
I’m sure that there is some truth in what you say, but can that ever be an acceptable permanent system? I know a guy whose wife was raped in the late 1980s. The entire local community knows it happened; we just don’t talk about it. The J.V.P. killed the rapist around 1990. For some time kangaroo courts may work . . . but . . .
However, both the JVP and the LTTE committed other crimes. There’s no need to elaborate, is there?
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Siva Sankaran Sarma / June 6, 2015
Sounds like We Thamizh need the fear of barbaric punishments to behave like civilised human beings and not rape & kill :D
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Native Vedda / June 6, 2015
Wee Thamizh senior journalists Siva Sankaran Sarma Menon D:
“We Thamizh need the fear of barbaric punishments to behave like civilised human beings and not rape & kill :D”
Can they escape barbaric punishments if they kill and then rape as did some of David’s mates?
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thrishu / June 5, 2015
Bleeding judges and lawyers in our country are equal putrids. Do they care a toss about victims? No not an iota. So don’t expect to get justice from them. Let the villagers deal with the culprit, instantly
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kumar soysa / June 5, 2015
Something that Minister Rosy Senanayake can do is to move heaven and earth with her colleagues in the Justice Ministry to have all rape cases ‘fast-tracked’ so that the case ends within nine months. It can be done. Don’t say it cannot as that is the case in several jurisdictions abroad. This will be most effective.
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Gratiaen. / June 5, 2015
This is a sorry state of affairs in our courts system for the last about 30,40 years causing not only delay in justice but causing severe hardships to the poor litigants who have to pay Lawyer fees for each & every appearance,travelling from far distance places some times & wasting their time in courts until the cases are called.Apart from this,what about the payment of travelling expenses and allowances(Batta)for state witnesses from the state funds? Most cases are postponed due to; Non receipts of Medical Reports,Finger Prints Reports,Govt;Analyst’s reports and reports from Examiner of Questioned Documents etc, to the Courts well in time. Further,due to the heap of trial cases fixed for a day are being postponed after recording the evidence of one or two prosecution witnesses and a magistrate will not be able to examine all the witnesses listed and then hear the cross examinations of each witness to decide a case in one day.In any lower court priority is given to Fresh plaints and Calling cases,Bail matters etc, before the fixed trial cases are commenced. It is high time to pay attention to this problem by the authorities and early remedial measures taken by increasing the number of Courts and Magistrates in lower courts to expedite especially Non-Summary cases so that hearing of trial cases in higher courts could be expedited.
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xlntgson / June 6, 2015
@shankar, this is what they, the corrupt police venal lawyers n pussy judges expect, then they get more money, name and fame! Do you think they will be worried about rise in crime rate if people take law into their own hands? Lynched revenged house stoned burnt rather they would exploit it by more violence to escalate, re-enforcements! (Even if you get a good magistrate the judgment is reversed in higher court, they find holes to dump, so gender of the judge won’t make any difference, the mob should turn on the lawyers who appear for the robber rapist killers in uniform/civil/naked! True democracy.
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thondamannar / June 6, 2015
“The primary, nay even sole objective of the drafters of the Criminal Procedure Code and the Civil Procedure Code was to devise a system of administration of justice that would ensure a regular and guaranteed income for lawyers.”…. IT DOES NOT MATTER TO “bf’ AS THERE IS NO RIGHT TO INFORMATION ON HIS STIPEND PROVIDED BY THE PAY MASTERS.
If he appears who he is, he should have been in Sri lanka long years ago to rectify these matters.
BF also earned or exploited from the same system.
BASL man who yelled for Yahapalanaya is missing. NOW HE IS THE HEAD OF THE BOI and as such HAPPY and gone MUTE.
“The Jack ass legal system by jackass lawyers.” DO NOT INSULT BASIL FERNANDO as he too is a Lawyer of the Wattala-bathala BAR (not the tavern)
“Oh yes the LTTE areas were totally free from crime. No children kidnapped, no prisoners tortured in underground cells, no rival Tamils slaughtered. Life must have been just f@@king wonderful.” I WAS TOLD 1-4 BASE WHEN GOVT CAPTURED WAS FULL OF STREWEN CONDOMS. Oh!!Must be false propaganda by the military.
FINALLY LETS HAVE A TIME LIMIT TO COMPLETE A RAPE INVESTIGATIONS AND A TEAM READY TO RAPE THE GUY WHO DELAYS IT.
As for BF, he is in another world immersed to his neck in $$$$ provided by his paymasters fishing & enticing SL judges in Fiji with lucrative $$ offers to join his HR Org to continue the bashing from air-conditioned rooms.
Right To Information ????????????????? Nonsense.
Yahapalanaya FCID has in place a speedy investigating system. Rapes can wait.
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thondamannar / June 6, 2015
One more thing , What do we do IF ….
“Crash of 2016″ by Thom Hartmann the 5 judges are like 5 kings. While Congres, Senate and President are answerable to the people the Supreme court is not answerable to anyone. That is why these Judges were able to pass the Citizens United billl and equate Corporations to people and money to free speech. Do not let that happen in Sri Lanka.” Harvey perera ….. on elmore perera’s Four Cheers………………..
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