Focus on Rights

The pendulum swings again

By Kishali Pinto Jayawardene

The question is undeni ably provocative; if Kamal Addararachchi had been discovered along with the 'almost seventeen' Inoka Gallege who later prosecuted him for rape, in the guesthouse on the night in question by the police, could he have been taken in under the Brothels Ordinance for 'illicit sexual intercourse'? And for the easily excitable, it must be warned that this wholly hypothetical question, by itself, is nothing more than a compulsive conjoining of two eminently discussable judgements of the appellate courts in the month of December last year, both of which distinctively impact on issues of sexual violence and personal privacy in this country.

In the first instance, the question would be answered in the negative. In a judgement delivered by the Supreme Court in early December, Maximus Danny who had petitioned the court after being arrested by the police with a woman, with whom he had meant to "spend a quiet night" at a guesthouse in Dankotuwa, was awarded Rs 55,000/= as compensation and costs for violation of his fundamental rights to be free from arbitrary arrest and detention. The Court, in the judgement of Shirani Bandaranayake J (with Dheeraratne J and Perera J agreeing) said in no uncertain terms and quoting previous judicial pronouncements that the Brothels Ordinance does not penalise illicit sexual intercourse. Where such intercourse takes place under circumstances which are a public scandal or an outrageous offence to individual rights or where it takes place with a girl under the prescribed age however, liability could lie. What the Ordinance specially does penalise is the making a living out of the corruption and degradation of others. For this, a woman or a man found inside a brothel must be shown to have performed some act with regard to the administration and control of the establishment. Passive occupants of such places cannot be taken in under the Ordinance.

In the second instance, the Court of Appeal judgement in the Addararachchi case, delivered some three days later, is, of course, more contentious. The question was precisely whether the admitted sexual intercourse had taken place in circumstances which were an outrageous offence to individual rights. Passivity figured here in a wholly different manner. Gallege's version of what happened proceeded on the following lines. Coming from a dysfunctional family, she had been living with her aunt whom she had decided to leave due to problems with her uncle. On that day in question, she had gone to a friend's residence and from there travelled to her grandmother's house in Kotte to ask for help to continue her schooling. On arrival however, she had found the house partly demolished and had been informed by a passer-by that her grandmother had left that vicinity. Upon Gallege breaking down and confessing her plight, the passer-by had given her the address of a place where she might find a job. Upon going there, she had found no one there as well and had asked the lady next door who referred her to the front house. From the latter, she found that this was the residence of the accused Kamal Addararachchi who had moved away. She had then obtained Addararachchi's current address and gone to his house in the evening. At that time, he had not been at home but his aunt had listened to her story and given her a meal. He had arrived subsequently and had talked to her for two hours until close upon midnight, promising to help her to continue with her studies and had also given her some money. Thereafter, he had agreed to drop her at her friend's house but had taken her to a guesthouse and had forcible sexual intercourse with her. The next morning, she had gone back to her friend's place but had not mentioned anything about the violation until her friend's father had come with the police for some "unknown reason". She had told a police matron what had happened to her at the police station thereafter. Addararachchi refuted the charge, at first denying all allegations of sexual intercourse and then later changing his story to admit that consensual sexual intercourse had taken place.

Gallege's factual narration was emphatically not believed by the Court of Appeal. Two witnesses called by Addararachchi testified that Gallege had come looking for Addararachchi and had then obtained his current address. In addition, it was thought to be very significant that all that she had on her person at that time was not her school books but a note book which contained the name and address of the accused. Her mother, who also testified, did not know the whereabouts of Gallege's grandmother and had not heard of a relative living in Kotte. All this was stated to support the version of the defence that Gallege had, in fact, set out with the express purpose of meeting Addararachchi. From that point onwards, the sequence of events become more convoluted, culminating in the now classic judicial reprimand to Addararachchi for his failure to "behave like a cultured man, as the situation grievously demanded" but with the absolver that the law would not be so unkind as to call him a rapist. From the standpoint of the Court of Appeal bench comprising Justices Hector Yapa and P.H.K. Kulatilaka, the fact that Gallege went into the room of an unknown house with Addararachchi in the dead of the night, without making any fuss, made her version that she was an unwilling party to sexual intercourse highly improbable, having regard to the normal conduct and behaviour patterns of Sri Lankan society. In stating this, the Court applied the objective yardstick of 'accepted and expected behaviour" of women in this country. This judicial reasoning, of course, was heavily at variance with the stand taken by High Court judge Shiranee Tillekewardene that gender stereotyping as to what women should and should not do and when and where detracts from the basic equality of men and women. Instead, the mere fact that a woman is willing to enter a room with a man should not mean that she was consenting to an act of intercourse. This may be an item of evidence but ultimately the question is whether she gave her consent. The absence of consent could be apparent by both verbal and non verbal behaviour and the accused could be found guilty if it is proved beyond all reasonable doubt that he was aware of or recklessly or wilfully blind to the fact that consent was not communicated. Applying this principle to the facts, the High Court was of the view that an ordinary and more experienced person might have made a different choice. Gallege was however, barely seventeen years at that time and was in a desperate situation. The mere fact that she acted as she did was held not to detract from the probability of her version of events. In departing from this line of thinking very strongly, the Court of Appeal accepts the notion of implied consent by the women where rape is alleged. The fact that Gallege exhibited no physical injuries, thus providing no corroborative evidence of her assertion that she resisted rape, is central to this. In this context, it has however to be pointed out that the 1995 Penal Code amendments specifically deleted the earlier legal condition that actual physical injury should be shown as indicative of resistance in allegations of rape. Though the Addararachchi case itself did not come within the ambit of the amended laws since the incident took place prior to the date, it would have been acceptable and indeed expected that courts deciding cases after the amended legislation would take into account the changed intentions of the legislators. In the instant case however, the Court of Appeal was clearly influenced by what they saw as Gallege 's blatantly untrustworthy evidence, leading the Court to call for corroborative evidence in strong terms. Her delay in making a prompt complaint about what she went through is seen in a similar light.

In conclusion and much more arguably however, the Court of Appeal goes on to make harsh strictures on certain steps taken by the High Court, including holding the trial in camera (in private) which, in the opinion of the Court of Appeal, amounted to "mollycoddling" Gallege. The specific reason why the Court of Appeal opined that this should not have been done is because Gallege had earlier given the same evidence in a crowded court before the Magistrate and that she was twenty years of age at that time. This is judicial reasoning that is undoubtedly bound to undergo critique by rights activists as buttressing the reason why women victimised in whatever circumstances prefer to travel to holy shrines and pray to the gods to alleviate their woes instead of passing through a public and hostile criminal trial.

During the seven years since the incident happened, the judicial pendulum swung in the Addararachchi case in a manner that first resolved the thorny question of consent in sexual violence allegations very much in the complainant's favour and then equally so in the defendant's favour. It is perhaps, the extremity of both these swings that causes concern in an age where sexual violence comes in many shapes and forms and formal amendments to the law do not appear to have redressed the situation.

The issues Bar Association do not want to see

By Victor Ivan

It is quite a salutary fact that the Bar Association too has joined in some form or the other the dialogue started by the media about the independence and the dignity of the judiciary.

The Bar Association made a statement condemning the ideas expressed by two newspapers — Sunday Leader and Ravaya — about the disciplinary control of the judicial officers, their dismissals and transfers. The newspapers in response carried rejoinders questioning the unprincipled stand adopted by the Bar Association in relation to the crisis that has arisen in the judiciary.

One of these newspapers carried an article indicating that for some cases the president too joins in the process of deciding the panels of lawyers.

The article was based on a reported meeting the president had with a group of leading lawyers at Temple Trees to discuss a petition filed by the UNP challenging the presidential election. The article had named only two lawyers who had participated at that discussion. To point out the fundamental problem such an incident raises, it is important to divulge the names of all those who participated at that discussion with the President. They are:

Lawyers H.L. de Silva, E. D. Wickremanayake, Ranjith Abeysuriya, Arthur Samarasekera, Faiz Musthafa, D.S. Wijesinghe, Minister G. L. Peiris and Presidential secretary K. Balapatabendi.

At this meeting, they also reportedly discussed the questions that had arisen in relation to the allegation of bribery the President had levelled against a Supreme Court judge.

The President made the allegation at a PA-UNP meeting on constitutional reforms.

The Supreme Court obtained affidavits from the editor of the newspaper which carried the news and from UNP members who participated at this meeting. Later, all Supreme Court judges wrote to the President asking her to name the judge who had obtained a bribe. When there was no response from her, the judges wrote to her again.

This allegation of bribery made by the president had arisen in connection with a fundamental rights petition submitted to the Supreme Court by businessman Sathasivam Vijendrarajan challenging his detention.

The petition was taken up by a bench comprising G.P.S. de Silva, the then Chief Justice, Priyantha Perera and Shirani Bandaranayake.

Faiz Musthafa appeared for the petitioner. The interim injunction requested by the petitioner had been granted and the judgment relating to the interim injunction had been written by Justice Perera.

For whatever reason, the majority of the lawyers who participated at the meeting refrained from expressing their views on the matter and Mr. de Silva alone expressed his views directly and in a straight forward manner, it is understood. The controversial judge being included in the bench appointed to inquire into the presidential election petition was apparently the topic of discussion.

The president had reportedly suggested that Mr. Balapatabendi must talk to the chief justice and take action to remove the said judge from the bench. This action is equivalent to an intervention by the president to change a panel of judges at her will in a case related to her. That such an action taken with no hesitation in the presence of a group of eminent lawyers implies that government leaders consider such interventions as ordinary matters.

Meanwhile Chief Justice Sarath Silva is once again in the centre of controversy after newspapers reported about alleged favours he had obtained from the President while being a judicial officer.

When Mr. Silva was a Supreme Court judge, the president appointed him as a member of a presidential commission that inquired into the murder of her husband Vijaya Kumaratunga. It is alleged that Mr. Silva while functioning as a member of that commission requested from the president that land appropriated for a school be returned to a trust he was managing.

Although such a request may be considered by some as an immoral act the president is alleged to have granted the request.

Mr. Silva was appointed as Attorney General the very day on which the commission report was officially handed over to the president.

Thereafter at a time when there were two petitions under inquiry before the supreme court against Mr. Silva, the president disregarding that fact appointed him the chief justice. The greatest responsibility in the defence of the independence and the honour of the judiciary rests on the Bar Association. If it follows a policy of defending the existing wrongs for temporary gain instead of getting rid of those wrongs the day cannot be far off when the people might consider the Bar Association as another association of jokers.

The writer is the editor of Ravaya

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