Fr. Nandana Manatunga

[Ed. Note: The author, a Catholic priest, is the director of the human rights secretariat of Justice, Peace and Human Development (SETIK) based in Kandy, Sri Lanka.]

Rita, 16, was abducted and raped on Aug. 12, 2001, by Piyal Nalaka and Rameez when she was returning home after Sunday mass and confirmation class in Talawakelle in Central Province in Sri Lanka. The rape case of Rita was brought before the Nuwara Eliya magistrate for trial. Lawyers of the human rights secretariat of Justice, Peace and Human Development (SETIK) assisted the state counsel with the case.

When the trial began, Rita, as the first witness, stood in her school uniform and gave evidence in Tamil, which was interpreted into Singhalese, for five days until the cross-examination concluded. Over the course of 21 days beginning in August 2001, the case was periodically heard by the court. Finally, on Oct. 29, 2002, the magistrate decided to transfer the case to the High Court of Badulla on charges of (1) forceful abduction, (2) pressuring a person for intercourse and (3) rape of a female below 18 years of age.

The lawyers believe that it will take another three months for the attorney general's office to send the charge sheet and other legal documents to the High Court in Badulla. In retrospect, however, this was a landmark case in many respects. First, in the opinion of many lawyers, the charge sheet was produced by the Dept. of the Attorney General within a few months of the hearing, a process which normally takes 10 to 12 months. Secondly, the president herself apparently took an interest in the case as she was persuaded to appoint a committee during the early stages of the legal process (the reaction of the president was probably a result of pressure from local and foreign organisations). Lastly, a great interest was generated among the public and the churches in particular, resulting in similar cases being reported.

However, Rita's case has revealed major defects in the present legal system, for it is quite evident that it is neither gender-nor child-sensitive. Rita, for instance, was a minor, a schoolgirl, when this unfortunate incident happened. Despite this fact, she was made to attend the court hearing more than 20 times, which involved the loss of her schooling as well as public humiliation as the courts were public and the cross-examination, which was demeaning at times, was in public, raising often the curiosity of onlookers. Moreover, it incurred huge expenses for the family since her mother had to forego her work on the days of the hearing. The case also raised the issue of inequality of some before the law. Rita, a Tamil, had to make her complaint in Singhalese to a Singhalese-speaking policeman, and she had to sign a complaint written in Singhalese. During the trial, the court proceedings were in Singhalese, and not everything was translated. Rita, a schoolgirl, was asked to explain the trauma of her rape in detail to the court, and the defence lawyer mercilessly questioned her. The State never provided security or shelter to the victim.

For these reasons and others, victims often give up pursuing their case. The law-enforcing agency, the police, has the sole authority to investigate and present the case as Sri Lanka does not have a public prosecutor.

Considering all of the above observations, it becomes clear that drastic changes are needed to make the judicial system in Sri Lanka more gender-sensitive, victim-centred and people-oriented. Can a simpler, less expensive system that safeguards the dignity and privacy of people be devised so that more and more aggrieved parties can seek redress? Put simply, how can a poor schoolgirl who has been raped come forward knowing that it is too costly, time-consuming, humiliating and is lacking in sympathy of kith and kin due to cultural factors or even much-needed security and public compassion? It is in this context that we need to re-examine our legal system. Can such simple methods, like in camera sessions, be arranged in cases of children or women when rape is the charge? Looking back on our experience, we assert that judicial and police reforms are the most urgent requirements for sustainable peace and human development in Sri Lanka.