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Wednesday, April 24, 2024

A Story of Fierce Courage From Vishvamadhu – Kishali Pinto Jayawardena

In a ‘letter to the editor’ of a Sri Lankan national newspaper recently, someone pointed to the need for a fearlessA story of fierce courage from Vishvamadhu to emerge from post-war Sri Lanka.

”In our legal history, extraordinary cases of this nature have had little impacton the general structure of law enforcement and the military. Instead theyremain confined to the law in theory, most often than not reversed on appeal.”

Conflicted by race
This was a nostalgic beckoning of Pulitzer prize-winning author Harper Lee’s iconic portrayal of a small-town white lawyer in ‘To Kill a Mockingbird’ who defended a wrongly accused black man in the American Deep South of the Thirties.

The optimist who made that appeal would probably have been unaware of this July’s release of ‘Go Set A Watchman,’ based on the original manuscript of Harper Lee’s ‘Mockingbird.’ Provoking distraught fans, this portrays Atticus Finch not as a legendary civil rights hero but as a man deeply conflicted by race, even as he appeared for the ‘black man.’

As we are now told, the transformation of the manuscript to its monumental best-seller status thirty five years ago came through the deft pen of Harper’s editor. Probably however the original version, though annoying the idealists, would have been nearer to the reality of fallible humankind.

The politicization of justice
Regardless, Sri Lanka’s tragedy is that it has had very few Atticus Finches, morally flawed or otherwise. In fact, its problematic Republican Constitutions in 1972 and 1978 were fashioned by very clever men, distinguished by their ability to take a simple principle safeguarding liberties and twist it into a singularly unrecognizable creature that serves the interests of the State.

This is why we never had the right to life even though the Indian citizenry was afforded that constitutional protection at the turn of independence. Motivated by a fierce desire to bring their people out of the dark ages, activists used this to breathe life into the very legal system itself. Even with modern-day tangles in ensuring justice to teeming millions, Indian jurisprudence would have been much the poorer if this spirited struggle had not ensued.

Yet in Sri Lanka, men of adroit minds not only drew up subverted Constitutions but sat on the Benches of our courts, straining every sinew not to dispense justice but to politicize it. They were only matched by the hordes of unprincipled lawyers who marched through the courtrooms, blind to the very idea of justice. Only few exceptions prevailed. Ordinary men and women wilted before such a cruel onslaught, preferring silence to protest, even when suffering the greatest loss.

Casual exercise of power
So when the system occasionally surprises the cynic with extraordinary stories of courage, we should sit up and take note. This week, the Jaffna High Court characterized as ‘unbearable and unforgivable,’ the rape of two internally displaced women in Vishvamadhu in 2010 even as it sentenced four soldiers to twenty five years rigorous imprisonment.

In many respects, the Vishvamadhu incident typified the breakdown of the Rule of Law in post-war Sri Lanka. Well over a year after active fighting ended in the Wanni war theatre, this was a casual exercise of power by military personnel over what they perceived to be vulnerable victims, condemned twice over by their gender as well as by their ethnicity.

Several aspects of the case symbolize the pressure points in our justice system. The forensic evidence, the evidence of lay witnesses and identification of the perpetrators were key positive factors in securing what is (relatively), a surprisingly speedy outcome in the High Court.

Sheer courage of the victims
Yet the victims were constantly intimidated by the perpetrators who were released on bail even after they were positively identified. This is why victims generally do not persist with rape complaints. One accused who was out on bail absconded thereafter, resulting in the sentence reportedly being passed in absentia.

But the sheer courage of the women transformed their story into a different rendering of the hopelessness which normally prevails. The intimidation resorted to was basic and crude. It followed a familiar pattern seen in “Southern torture cases.’ First the victim is persuaded with offers of money to drop the case. Thereafter, false cases are lodged, most often on accusations of allegedly selling illicit liquor.

These are all factors that speak to the overriding importance of having an effective witness protection programme with the Protection Division being separate from the Department of the Police. Unfortunately this appears not to be the case with the recently enacted Witness Protection law.

State patterns of impunity must change
Generally however, police intimidation action is compounded by outright denial by the Government. In the Vishvamadhu case, the intimidation was explained to have had no connection to the complaint of rape (see the government response to two United Nations Special Rapporteurs on Torture and Violence against Women, dated 7 July, 2014). Even earlier, the case is referenced by the shameful notation in a United Nations report that ‘the victim gave her testimony reportedly in the presence of more than 100 military men inside the court’ (A/HRC/20/30, 15 June 2012),

In that same United Nations report, the 2011 extra-judicial killing of Nuwarapakshage Madushanka (allegedly) by law enforcement officials is noted. Madushanka’s mother had been informed by the Koswatte Police Station that he had committed suicide inside the police cell. However the post mortem results pointed to a different result. Other cases mentioned include Asaka Botheju whose body was found in the Kelani River after his arrest that same year. The imaginative explanation given by the police was that he had jumped into the Kelani River. These are explanations that are extremely hard to swallow.

Through a combination of fortuitous circumstances, the Vishvamadhu case pulled itself out of that dark abyss to deliver some sort of justice to the victims. However, this must not remain as an isolated case which does not have deterrent impact on abusive soldiers. In our legal history, extraordinary cases of this nature have had little impact on the general structure of law enforcement and the military. Instead they remain confined to the law in theory, most often than not reversed on appeal.

There must be a complete reversal of old patterns of impunity. And State will to ensure this must surely be evidenced at least now

– Courtesy of the Sunday Times


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