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10th September 2000
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Women in crisis

By Feizal Samath
Whenever repre- sentatives from Afghanistan's main women's rights group go abroad to attend conferences, they carry with them carpets or handicrafts and sell them to other delegates to raise much-needed funds for the organisation.

"I brought a few carpets along and want to sell them to delegates," said Aeman, a young member of the foreign committee of the Revolutionary Association of the Women of Afghanistan (RAWA). "We need the funds badly and it is customary to carry these items whenever we attend conferences abroad."

Aeman, like many other Afghan women activists, uses a pseudonym when travelling abroad to avoid being harassed by Afghan's Taliban regime where women are a suppressed group. 

"We are living under a very repressive regime. Women have no right to education or to health and are forced to stay indoors. Please tell the world," pleaded Aeman, who was attending an Asian conference in Colombo on the issue of violence against women.

The two-day meeting on August 19 and 20 organized by the Thai-based Asia Pacific Forum on Women, Law and Development brought together women's rights workers from Indonesia, Korea, Afghanistan, the Philippines, Sri Lanka, India, Burma, Fiji, Japan, Pakistan, Tibet, Bhutan, Australia, Thailand, Malaysia and Kampuchea.

It was a regional consultation with Radhika Coomaraswamy, the United Nations Special Rapporteur for Violence against Women, ahead of a report she is submitting to the UN General Assembly in December on violence against women.

"I am preparing this report on violence against women and was gathering the views of activists in the region. I can't tell you right now the contents of the report as it is being presented to the UN in December," Ms. Coomaraswamy said.

The conference, closed to the media, discussed the crisis in Afghanistan, the emergence of the women's rights movement in Indonesia and Japan's comfort women and other issues like migrant workers, domestic and sexual violence, all of which are predominant features of the Asian woman. 
Aeman told the conference that her country was a forgotten nation in the eyes of the world. 
"While the world focuses on Kashmir or Bosnia all the time, Afghanistan is like a cemetery a forgotten corner in the planet, a country dominated by the most brutal and ferocious group of religious fascists," she said.

Aeman, in a speech made available to The Sunday Times, said women are beaten in Afghanistan, stoned in public for not wearing clothes according to Taliban rules, banned from education, using make-up, laughing aloud in public, playing any sport or watching movies or TV.
"Homes where a woman is present have their windows painted so that outsiders can never see her," she said. Women are not allowed to work in Afghanistan nor be seen in public without a male relative. Widows starve to death, beg on the streets, take to prostitution or just commit suicide. Desperate mothers sell their children on the streets as they can't feed them, she added.
Aeman said rape was commonplace with even a seven-year-old girl and a 70-year old grandmother being victims. The young activist, who is now working in Pakistan as a RAWA activist, like many others studied at a RAWA school secretly run in dozens of homes. The location of these schools is changed from time to time to escape detection.

"Girls are barred from education. The Taliban says schools are the gateways to hell. Even males have access only to religious education. At RAWA schools, girls are given a rounded education and taught literacy, nursing, carpet weaving and handicrafts," said Aeman, whose mother is a RAWA activist in Afghanistan.

RAWA's founder, Meena was killed in 1987 by Muslim fundamentalists.
Aeman's plea to Ms. Coomaraswamy was for the UN to intervene in the Afghan crisis.
For the Indonesian woman, the crisis is not as bad. According to Kamala Chandrakirana, Secretary General of Indonesia's National Commission on Violence against Women, the turning point in the women's rights movement came during the riots of May 1998 when Chinese women were raped by the dozen.

"People were compelled to sit up and take notice of the violence against women. Until that time, domestic violence was unheard of and not even documented although it may have been happening on a large scale," she said. 

Chandrakirana said Indonesia's society was in transition after decades of authoritarian and military rule and the system is in the process of cracking. "In that sense we are at a turning point."
She said women under President Suharto regime had a very limited role as mothers and wives and were excluded from access to economic resources. "They were considered dependents and treated as objects of development. Laws didn't recognize domestic violence. There was no legal mechanism for women to address their problems, even when they were violently beaten at home."
Things have changed since the May 1998 crisis in which the authoritarian regime led by President Suharto was forced to bow to the reformist movement. During the May 1998 riots, the minority Chinese community was the target of rioters and at least 180 women were raped
"The rape became a controversial issue. The with victims were either severely traumatized or too scared to speak out in public. But the issue became a public problem and the upshot of that was that violence against women became part of people's consciousness and suddenly everybody understood what violence against women meant," said Chandrakirana. 

She said women activists demanded action against perpetrators and communities started setting up crisis centres for women. There is now increasing awareness of violence against women, and more and more women are going to these crisis centres. 

"It may mean two things - one there is an increase in domestic violence or that there is more awareness of the problem now," the Indonesian rights activist noted.

Chandrakirana said the entire phenomenon of violence against women became very clear "with a bang" during the same time when the nation was shifting or changing its political character.
But, she said, issues like sexual exploitation of women in seven regions in Indonesia where separate rebel groups are fighting for independence remain unresolved. "Rape and sexual assault of women by soldiers are common in these areas," she added.


A Policeman remembers 

Book Review by Tissa Jayatilaka
A Policeman Remembers: Memoirs of 
Herby Jayasuriya
Published by Vishvalekha Press.
Price: Rs 325/-

More brawn than brain is a general put down that society sometimes employs to belittle members of the security forces in most parts of the world. As we all know, however, there are gifted individuals in any sphere of life who defy generalisation. Herbert Stanley Jayasuriya affords a striking illustration of precisely such an individual who so handsomely defies the generalisation above with which I have begun this brief review. 

And I cite as proof Jayasuriya's exemplary public service career which spanned almost four decades during which time he diligently and steadfastly worked his way up from a Sub-Inspector to Senior Superintendent in the Sri Lanka Police Department.

Jayasuriya is possessed of both brain and brawn in ample measure! With his imposing near six-foot frame and stentorian voice, he is the kind of Police Officer who would send shivers down the spine of even the most seasoned law breaker. 

At the same time he is a wonderful family man, good friend, cricketer of repute, tennis player, singer, lay preacher, non-smoker and teetotaller - truly an exceptional policeman. It is no surprise, therefore, to find within the covers of A Policeman Remembers, a fine account of the life and times of an officer and gentleman of the highest calibre.

The publication contains six chapters sandwiched between a noteworthy foreword and a striking epilogue - both of which give us the measure of the fine human being that is Herby Jayasuriya. The chapters deal with Jayasuriya's early years in the Police, his career in the Criminal Investigation Department (CID), his days in the Special Investigating Unit at Police Headquarters, the hazardous period of duty while he served as the Assistant Superintendent of Police of Jaffna and his term of office as Senior Superintendent of Police in the Colombo Fraud Investigation Bureau. Jayasuriya's easy prose style tinged with the right degree of humour makes the narrative an enjoyable and profitable read. 

The author happily avoids the common shortcomings - breast-beating, grinding of the political axe, resorting to self-pity and the like - one usually finds in any average memoir of a good public servant fallen among politicians and unprincipled "superior" officers! He states his truth in a matter of fact fashion and leaves the discerning reader to figure out the depth of his disappointment over the foibles of fallible human beings he has had to put up with during his years in the Police Department.

Here is a relevant paragraph from the author's foreword to substantiate the above point:

"I retired from the Police Department after a 39-year period of service, which was both challenging and rewarding, if at times frustrating. It was challenging as most of my work had to do with investigations, each case being different and perhaps more intriguing than the other, with occasions where the pursuance of duty entailed my entire career being put on the line, rewarding as any reports and investigations invariably led to the innocent being acquitted and the guilty being brought to justice; frustrating since those who enjoyed political patronage were sometimes favoured over conscientious and dedicated officers who placed service to the community above all else." 

Jayasuriya who joined the Police Department in 1960 gives us a thumb-nail sketch of each of his 15 colleagues who, like him, found themselves on January 5 of that year at the Police Training School in Katukurunda. 

All of the sixteen of this batch of probationary Sub- Inspectors of Police hailed from a 'public' school and middle class background drawn from the length and breadth - yes, from the North and East as well of our island home. 

And each one of them a notable schoolboy sportsman. The majority of today's recruits by contrast would be from the lower middle class and products of Central as opposed to public schools. This, in and of itself, is not necessarily a bad thing. The depressing and deplorable difference between then and now would be the calibre of the recruit. 

The majority of the present officers is bound to be loyalists of some unscrupulous politician in power singularly lacking in the qualities of leadership required of an aspiring officer of the law. It is not yet too late for those who seek to guide the political destinies of our tortured nation to recognize the truism that a silken purse cannot be made out of a sow's ear.

Embedded in these rec- ollections of the many investigations that Jayasuriya assisted in during his Police days are certain shrewd observations which are the more telling due to the narrator's recourse to understatement. Jayasuriya's stance on the various issues involved are more implied than stated and the reader who carefully reads between the lines will be able to get to the heart of the presentation. His description of the Crystal C Carbon transaction [pp. 218-220] is a perfect illustration of the above aspect of Jayasuriya's memoirs. 

A firm in Sri Lanka intent on exporting desalination plants to the Middle East and Singapore, imported a substance called Crystal C Carbon over a period of about four to five months to the tune of approximately Rs. 344 million. 

Thereafter, the firm wrote to the Treasury claiming a waiver of duty on this import on the basis that the substance imported was for use in the manufacture of desalination plants meant for export! Interestingly, the Treasury had granted the firm a 25% duty waiver. As the investigation officer, Jayasuriya, had asked the Government Analyst's Department and the then Ceylon Institute for Scientific and Industrial Research (CISIR) whether there exists a substance known as Crystal C Carbon used in the manufacture of desalination plants. 

Specialists of both these institutions consulted had not even heard of such a substance and they opined that Crystal C Carbon was probably a trade name. A reputed Chartered Engineer, a person known to Jayasuriya, who had conducted the feasibility study pertaining to the project to manufacture desalination plants had himself expressed the same opinion and further stated that whatever Crystal C Carbon might be, it was not a necessary ingredient for the manufacture of desalination plants!

In the course of his inves- tigations, Jayasuriya had informed the Attorney General of the day of his suspicion that the purported importation of this mysterious Crystal C Carbon may have been a clever ruse on the part of the firm to circumvent the existing exchange control regulations of the country. Subsequently Jayasuriya interviewed a senior officer of the Attorney General's Department regarding this inquiry. 

Not very long after Jayasuriya was unceremoniously transferred out of the CID. It was a transfer that was to cost him dearly, for it destroyed the opportunity he had of becoming the Director of the CID and of possibly rising to the rank of DIG at a later date considering his longstanding service record in the CID. An officer who was his junior in service was promoted to the latter post while Jayasuriya languished in the Colombo Fraud Investigating Bureau until his retirement. It was sometime during his tenure in the latter Bureau that he came to learn that the firm which had claimed to have imported Crystal C Carbon for the apparent manufacture of desalination plants had, with the aid of a prominent politician's wife, engineered his sudden transfer out of the CID.

All is fortunately not doom and gloom. Jayasuriya also recollects some fun moments during his interesting career. His trip to Kamburupitiya on the instructions of the IGP at the time, Mr.S.A. ('Jingle') Dissanayake, in the company of a senior colleague to convey a message to a certain Mr. Chuncheer is one such. Upon knocking on the wrong door near midnight the Police duo almost get shot by the occupant of the house! Having subsequently found the correct house and after delivering the message to Mr. Chuncheer, they looked up the gentleman who had earlier threatened to shoot them. To their surprise they discovered a puny fellow, 'shorter than the gun' he was planning to use! 

Then there is the one about the Mudaliyar in the Magistrate's Court of Negombo where Jayasuriya had filed plaint against a certain Mr. Sirisoma. On hearing that the accused had sent a medical certificate seeking a postponement of the case, Jayasuriya asked the Magistrate what the ailment of the accused was. 

The Magistrate in turn asked the Mudaliyar who replied that it was a fracture of a part of the human anatomy where bones are not normally found! Upon further questioning the Mudaliyar apologised for his error and confessed that the fracture was of the pelvis and not of the vital part of the body he had referred to earlier!

It is perhaps fitting that this review should end with one more paragraph from the author's foreword as it is a reflection of the character of the man who has shared with us many memories he has of his public service career. "If I begin my reminiscences with my early years," observes Jayasuriya, It is only to pay tribute to my mentors who impressed on me the moral duty to distinguish between right and wrong and never to compromise basic values whatever inducements were on offer."

Given the very elastic standards of today's public servants, Jayasuriya sounds as if he is a denizen of another planet. But, then, Jayasuriya was nurtured at that famed school on Randles Hill in Kandy founded by L.E. Blaze and administered by giants like P.H. Nonis, Kenneth de Lanerolle, J.O. Mendis, V.D. Paul Raj and B.A. Thambapillai to name but a few. Jayasuriya is a product of Blaze's Kingswood at which one was schooled not only to excel in sports and studies but to be a "gentleman". It is a tradition at the school to refer to each student as a 'Gentleman of Kingswood' so that each may be challenged to become one. A constant refrain that runs through A Policeman Remembers is one of the several ideals that the College Song attempts to instil in every Kingswoodian, namely, "Duty we dare not flee, heavy the cost may be". 

That venerable institu- tion which helped mould the character and personality of Jayasuriya has reason to be proud of this son of hers. With "faith and virtue" as his guide, Jayasuriya, as those members of the public who have benefited from his services would surely testify has discharged his duties as a Police Officer with great acceptance. 

It is indeed gratifying to note that a good number of men of Herbert Stanley Jayasuriya's stature and calibre have once adorned our Police Department. How desperately one wishes that their tribe would increase in the years to come.

[The reviewer, himself a product of Kingswood College, Kandy, is the present Executive Director of the United States - Sri Lanka Fulbright Commission]

Law and Citizen By Dr. C. Ananda Grero 

His master's choice

The general rule of Roman Dutch Law (the common law of Sri Lanka) is that a person is liable only for his own negligence. This is, however, subject to one exception; that a master is liable for the acts of his servant acting within the sphere of the duty or service entrusted to him. It is said by Voet (Roman Dutch Law jurist) that a master is liable for damages caused to a third party by the negligence of his servant when he (servant) is clearly acting wholly within the scope (sphere) of his authority. 

Two conditions must be satisfied so that a master can be made liable for the civil wrong (tort) of his servant. Firstly the one who caused the civil wrong must be the master's servant. Secondly, the civil wrong must be committed in the course of the master's employment. 

Citizen Alwis, a trader, had a car bearing No. 8 Sri 9888, which was used as a hiring car. The driver of this car was Samson who was paid a monthly salary by Alwis. On July 22, 1990 the car met with an accident at Nittambuwa on the Colombo - Kandy Road due to the negligent driving of Samson who drove it in a zig-zag manner at high speed. On the day of the accident, he had taken some tourists to Trincomalee, dropped them there and was coming back to Colombo in the night, When he stopped near the Kurunegala bus stand and invited three persons to get in if they wished to go to Colombo. He asked each one to pay Rs. 50 as hire. Three passengers got into the car and at Nittambuwa junction, the car knocked a post by the roadside and overturned. 

One passenger, Sirisena, had to be lifted out of the car. He was admitted to hospital with serious injuries and later succumbed to his injuries. 

His wife Leela filed a case in the District Court of Gampaha claiming damages from Alwis in a sum of Rs. 300,000 on the basis that her husband died because of an accident due to negligent driving by Alwis's driver who was his servant. 

Leela was the first plaintiff and the second and third plaintiffs were the children of the deceased Sirisena who were his dependents. Defendant Alwis admitted the accident but pleaded in his answer that driver Samson was acting outside the scope of his employment at the time of the accident and therefore he (Alwis) was not liable in damages. 

After trial the District Judge gave judgment in favour of the plaintiffs and ordered the defendant (Alwis) to pay Rs. 250,000 as damages and Rs. 10,000 as costs of action. Against this judgment, Alwis appealed to the Court of Appeal. 

However, the Court of Appeal dismissed his appeal. Then the defendant preferred an appeal to the Supreme Court.

At the trial before the lower court it was revealed that defendant Alwis had verbally instructed his driver not to take any passengers in the car on his return trip to Colombo from Trincomalee. 

A case similar to the case referred to above came up for hearing (the appeal) in the Supreme Court. This case Sarath Kumara Perera V Winifred Keerthiwansa and others, is reported in (1993) 2 Sri Lanka Law Reports at page 274. The counsel for the appellant-defendant argued before the Supreme Court that the driver (like Samson) had no authority to give a lift to the deceased Keerthiwansa (like Sirisena) and therefore the master, the defendant appellant (like Alwis) was not liable in damages. 

The case was argued before a bench of three Judges of the Supreme Court. The then Chief Justice G.P.S. De Silva in his judgment referred to the verbal instructions given to the driver and said, "I proceed on the basis that Sally (driver in that car) had been orally instructed not to take any passengers on the return trip. However, the law is not so futile as to allow a master (like Alwis) by giving secret instructions to his servant to discharge himself from liability." He referred to the evidence on record and observed that the vehicle had a red number plate and that was a clear representation to the public that the vehicle (like the car driven by Samson) was authorised to carry passengers for a fee, whatever may have been the secret instructions (oral instructions) unknown to others that were given by the master (like Alwis) to his servant (like Samson). The Chief Justice further observed that the three passengers who travelled (including the deceased) did so with the permission and consent of Sally, the driver. The defendant appellant had known the driver for about a year prior to the accident. The defendant appellant (the master) knew nothing of Sally's (like Samson's) antecedents. The defendant appellant had failed to exercise the degree of care expected of a prudent employer in selecting the person whom he employs. The defendant appellant was content to give mere oral instructions to such an empolyee. 

The Chief Justice quoted what Justice Wessels held in a case and reported in a foreign law report as follows: "It is within the master's power to select trustworthy servants who will exercise due care towards the public and carry out his instructions. If the injury done to the third party by the servant is natural or likely to result from the employment of the servant then it is the master who must suffer rather than the third party. 

"The master ought not to be allowed to set up as a defence the secret instructions given to the servant (oral instructions given to the driver) where the latter (servant) is left, as far as the public is concerned, with all insignia (symbol of authority) to carry on the kind of business for which he is employed." Having considered the facts of the case and the previous decisions pertaining to the subject of the liability of the master for the negligent acts of his servants, the Chief Justice held that he was of the view that the act of taking Keerthiwansa (like Sirisena) in the car was within the ostensible (pretended) authority of Sally (like driver Samson) and was not an unauthorised act and he accordingly held that Sally was acting within the scope of his employment in taking K (the deceased passenger) in the car and the defendant (like Alwis) in thus vicariously (for the act of another, i.e. driver's) liable. He dismissed the appeal with costs and Justice Kulatunga agreed with this judgment. However, Justice Ramanathan disagreed with the judgment of the Chief Justice and wrote a dissenting judgment. 

Thus, citizen Alwis cannot succeed in the appeal but has to pay damages with costs to Leela and the two children of the deceased Sirisena. (Names are fictitious) 

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