Last week, I failed
to mention the names of two other gentlemen who had worked extremely hard
for the compendium the Bar Association submitted to the President on the
Registration of Title Bill. One is Kandiah Neelakandan, partner of Murugesu &
Neelakandan, and the other Mahinda Ellepola.
No President of the Bar Association had been able to work without the assistance of Mr. Neelakandan.
From the time of Dr. H.W. Jayewardene, the first President of the Bar Association, to Romesh De Silva, Mr. Neelakandan has worked with indefatigable zeal on many projects which has received the acclaim of every member.
The contribution made by Mr. Ellepola to the Committee was equally important. Even though Mr. Ellepola is not a member of the Council, he had worked with great tenacity and had made a significant contribution, from his vast experience he had gathered as an instructing attorney and as Public Trustee during the time of Felix Dias Bandaranaike.
He has tremendous influence with the hierarchy of the present government. The President would definitely listen to his advice. It is unfortunate that this gentleman could not be even nominated to the Bar Council. I remember Rohan Hapugalle was nominated to the Bar Council and made a significant contribution. Mr. Hapugalle was not nominated by any branch association but was nominated by the then president, under the amendment to the Constitution which permitted the President, Secretary and the Executive Committee to nominate members like Mr. Hapugalle and Mr. Ellepola. I also understand that Nehru Gunatilake and not Elmo Perera was the Chairman of the Committee of the BASL, that looked into the Title Registration Bill.
The previous Government appointed a technical committee headed by Professor Savithri Gunasekera to look into the problems of women and children.
The committee represented a fair cross section of lawyers, magistrates and others interested in the welfare of children and women, who are abused by male predators.
Before the final draft was approved, the committee sought the counsel of many NGOs and other interest groups. They were very emphatic that the present laws are insufficient to charge paedophiles and others who sexually abuse women and children.
The committee listened to these suggestions and incorporated many of them into the draft proposals.
Justice Minister G.L. Peiris took great pleasure in introducing these suggestions made by the technical committee as amendments to the Penal Code. It was suggested that these proposals should come as amendments to the Penal Code, as police officers who inquire into these complaints know only of or mainly about the Penal Code. Other legislation incorporated in other statutes have become a dead letter as the Police are not aware of the law or find it difficult to locate the law. The Penal Code and the Criminal Procedure Code are the gospels of the prosecuting sergeants.
Sexual abuse of women is quite common in Sri Lanka. There is an increased number of incidents where minor female children are abused by grown-up men. If you walk into a magistrate's court in any part of the country there would be at least more than one case pending in court where some man is charged with sexually assaulting a child.
Most working women are harassed by male colleagues. This happens when unwelcome advances are made towards them. There are other males who derive great pleasure in uttering obscenities in front of their colleagues, embarrassing them. If they find that the woman is a shy type they go on uttering obscenities increasingly causing great pain of mind to the female worker. The man derives a sadistic pleasure in doing so. There are other employers who make advances towards the employees and get them to yield to their manoeuvres on the basis that if they do not succumb they would lose employment. Under the Penal Code as it stood some time ago, there was no salvation for these women.
Section 345 of the Penal Code was enlarged in its scope to encompass such harassment so that women will not be harassed even by the use of words or actions.
Section 345 states 'whoever, by assault or use of criminal force, sexually harasses another person, or by the use of words, or actions, causes sexual annoyance or harassment to such other person commits the offence of sexual harassment and shall on conviction be punished with imprisonment of either description for a term which may extend to five years or with a fine, or with both and may also be ordered to pay compensation of an amount determined by Court to the person in respect of whom the offence was committed for the injuries caused to such person'.
Beneath the Section there is an explanation:
(1) Unwelcome sexual advances by words or action by a person in authority in a working place or any other place shall constitute the offence of sexual harassment.
(2) For the purpose of this Section an assault may include an act that does not amount to rape under Section 363.
The debate between Susanthika and the mysterious official or officials at the Ministry of Sports has become a national issue. She has publicly complained that she had been sexually harassed by this official.
Sports Minister S.B. Dissanayake has so far neither denied these allegations about sexual harassment nor has he appointed a committee to inquire into these allegations.
The UNP said Susanthika is a national treasure. Govt. spokesman and Media Minster Mangala Samaraweera has said the debate in parliament was based on the hallucinations of a deranged female.
What is important is in the context of the amended legislation on sexual harassment, whether the allegations of Susanthika come within the ambit of the amendment.
Susanthika has said that a certain official is demanding sex from her and is sending messages through officials to divorce her husband, Dhammika. She has been told that if she does not divorce Dhammika that either Dhammika would be done away with or remanded on a trumped up charge.
It will be interesting for us to know whether the mysterious official in the Sports Ministry has committed an offence under Section 345 of the Penal Code as complained by Susanthika Jayasinghe.
It will be also interesting to probe what Minister Samaraweera said in Parliament. According to the corrected statement in the Government media he had stated in Parliament, "to me she looks 'a black American' youth", if it was said that I am after her, may be it is true".
I do not know whether Mr. Samaraweera is so fond of black American youths. Now to fall in love with a black American youth of the opposite sex is no offence, but under the recent amendment to the Penal Code introduced by this Government, can a person fall in love with an adult male, black American or white American of the same sex? We will probe this matter fully in the context of the recent amendment to the Penal Code next week.
Continued next week
I am an avid reader of your legal column written by Mudliyar. I find that he has been a great defender of the judges in this country and went on to defend a magistrate against whom a tabloid has said there were charges which may amount to rape. I believe that the Mudliyar has got all his facts correct when he defended the magistrate.
Whilst reiterating the Supreme Court has been the sole protector of human rights and other abuses of the Executive, I do not know whether I could say the same thing about Magistrates. I was a victim of judicial impudence and arrogance. I was charged by the employer for having committed criminal breach of trust of some property. I knew the real reason behind the frame-up was that at that time I was involved in politics and working for the Opposition. My employer was a strong supporter of the UNP.
The Police abused me and assaulted me mercilessly as if some of them were the devils incarnate. Only the intervention of a Sub Inspector prevented me from being killed. I told the Sub Inspector in English that I am a heart patient and cannot withstand the assault. I was giddy and breathless.
I was taken to a Magistrate’s bungalow and was kept in the van and was remanded. I wanted to make a complaint to the Magistrate of the assault but it was of no avail.
Later, after 14 days, I was released on bail. When the trial started, the Magistrate behaved in the most unseeming way expected of a judicial officer. He threatened me and my lawyer, when I pleaded not guilty. He wanted to know what my defence was and why I was pleading not guilty. My lawyer, who is a regular practitioner in the Court did not say a word so that he would not offend the Magistrate.
When the trial started, things became worse. I noticed that this was not peculiar to my case. Very few accused pleaded not guilty. When they pleaded guilty to the most grave crime, the Magistrate dealt with them very leniently, and gave a punishment which I thought was not in keeping with the offence committed.
There was a person who had committed armed robbery and had stolen money from a petrol shed. The lawyer said he had advised his client to plead guilty and said his client had a previous conviction and pleaded that he should not be sent to jail. The Magistrate gave some excuse and did not impose a jail term.
What I felt was that he was exceedingly happy when the accused pleaded guilty and he got the great satisfaction of concluding cases. I felt that his hobby was collecting concluded cases.
There was a case of a woman who had been molested. The Magistrate wanted the woman to accept some money from the accused and settle the case. The woman who had gone through the ordeal of going to the Police Station, then to the doctor and then coming to Court refused to settle the case. She said that no amount of compensation would alleviate the mental trauma she underwent. Then the Magistrate turned at the woman like a person possessed and said that if she could not take his advice she would have to suffer the consequences. I was watching the proceedings and the Magistrate found some excuse and discharged the accused. The accused was sent scot free. I saw the woman weeping outside the courts.
Then came my case and he tried to browbeat and coerce me to plead guilty.
When I refused he said if he found me guilty that he would give me the maximum sentence. I did not know what to do. My lawyer came to me and wanted me to plead guilty. When I refused he made an application to court and said that I was a cantankerous old man and was refusing to heed good advice and therefore he could not any longer appear for me. I thought that was the end of the world for me. Later the case was postponed as the second witness was not present.
Everyone who was close to me pleaded with me to plead guilty. I steadfastly refused and said that I would never plead guilty to a charge framed by the employer and that everyone knew I was innocent.
I had no lawyer in that Court who was prepared to appear for me. They privately told me that the Magistrate was a terror and that if anyone appeared he would sit on them in other cases and ruin their practice. I was advised to retain a President’s Counsel. I retained one at tremendous cost. The Magistrate was subdued and after a long and protracted trial he convicted me and sentenced me for two years RI for having misappropriated some goods to the value of Rs. 1,500/-. The armed robber who had a previous conviction was given a pat on the back and sent home.
Promptly my lawyer after charging another hefty fee tendered a petition of appeal and I was released on bail. My lawyer told me that the Magistrate was definitely inclined to convict me and if he convicted me that I would be in a position to submit a petition of appeal and obtain my release.
With the new Bail Bill what would be my position? The Magistrate would not only threaten me to plead guilty but also will tell me that after conviction he would not release me until another Court decides on the matter.
My appeal was listed before the High Court without much delay, and I was told that the High Court Judge was extremely tough and that I would have no chance with him but as soon as my lawyer addressed the Judge, he immediately told the State Counsel that there were no way in which the conviction could stand and discharged me.
Later, I came to know that the magistrate had earned high marks from the superior judges for the expeditious manner in which he disposes of his cases. I cannot think what would happen to any accused who goes before him with the present Bail Bill in force. He will refuse to give bail if you do not plead guilty. He will refuse to release on bail even if a petition of appeal is tendered. How many can afford to appeal against such judgements? The only sane thing to do is to plead guilty, even if you knew your were innocent.
— RKGA
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