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Hulftsdorp Hill

20th December 1998

Submit the Bills to the Supreme Court

By Mudliyar

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Continued from last week

Justice Minister G. L. Peiris told Parliament during the reading of the bill:

"There is another important point. Very considerable damage is done to a child by the publication or the revelation of the identity of the child against whom a sexual offence has been committed.

"Sometimes the media does not behave with sufficient responsibility in this regard.

"When a sexual offence has been committed against a child, for sensational reasons, sometimes there has been publicity given to the name of the child and this inflicts great damage on the child throughout his or her future. We therefore have to preserve the anonymity of the child for these reasons."

None could question the noble sentiments of the minister. He has not said a word about rape victim who is an adult nor has he said that it was in the interest of the rapist to hide his identity from public glare.

He would agree that a full disclosure ought to be made of such criminals. The only sense of shame that paedophiles would feel is when they encounter a hostile public and due to the publicity given in the media to the crime. A family would not condone such an act and perhaps ostracise him.

But what has the Act done. It has not only made publishing the photograph or any matter which points to the identity of child and offence but has made the publishing of the photograph of any victim of any sex related crime irrespective of his or her age an offence punishable with imprisonment.

If the law was implemented to the letter then there would not have been a newspaper editor or television producer or a radio broadcaster who would escape being charged with having published many photographs including the wedding photograph of Rita Jones.

It would be obvious to any right thinking person that the Kamal Addararachchi rape case and the Sandareka rape case, then the Krishanthi Kumaraswamy rape and murder case and the Rita Jones rape and murder case were the most discussed cases in the recent past.

As I stated earlier the media played a positive role in creating a public revulsion to such crimes. It was this column that published in English for the first time the account of the Krishanthi Kumaraswamy rape and murder case. The public outcry was so great and the public opinion created by the media was such that the government had to take immediate steps to investigate and prosecute the rapists.

To alleviate the public outcry the government appointed a trial-at-bar consisting of three High Court Judges and before any delay the perpetrators of the Krishanthi Kumaraswamy rape and murder were punished.

Similarly in the Rita Jones case the Attorney-General's Department worked overtime with its meagre resources for the indictments and requested a trial-at-bar. If the media was censored from publishing these details of these crimes there would be public apathy and the crime would have soon gone into limbo.

Recently this paper carried banner headlines about a seven year-old-girl being sexually abused by her uncle. It also reported some details about the abuser being granted bail. The public reacted to the crime though it was published only in The Sunday Times.

None of the vernacular newspapers carried any account or proceedings of court. But the exposure was sufficient to inundate this office with telephone calls, faxes and messages were sent to the President and persons in authority.

The Attorney-General's Department must be congratulated again for the manner in which it reacted to the news item. As one of the custodians of public morality the Attorney-General's Department took immediate action to inform the police to complete investigations and submit the papers to the Attorney-General.

The offence of grave sexual abuse was alleged to have been committed on November 6, 1998 and few days later the complaint was made to the Dehiwela Police.

Within less than a month the Attorney General was able to file indictment in the High Court of Colombo.

If not for the disclosures made by The Sunday Times, by the time the case would be taken for trial and concluded the child would have become and adult and probably married.

Counsel who appeared for the alleged abuser demonstrated to Court that The Sunday Times had committed an offence under the amendment to the Penal Code. He contended that under Section 365c.1. no one could publish any matter relating to Section 345 (sexual harassment), Section 360a. (procuration of women for prostitution,) 360b. ( sexual exploitation of children,) Section 363 (rape,) 364a. (incest, ) Section 365 (grave sexual abuse,), Section 365a. (- gross indecency between persons) and Section 365b. (- grave sexual abuse.)

What he glossed over is the fact that Section 365c.1 prohibits the publication of any name or any matter which makes known the identity of the victim - in this case the seven year old girl. The Sunday Times did not disclose any material which would disclose the identify the victim. The Magistrate summarily dismissed the argument.

What was most objectionable was that Section 365c.3. of the Penal Code amendment reads that "whoever prints or publishes any proceeding in any Court with respect to an offence referred to in subsections (1) without the previous permission of such Court shall be punishable with imprisonment of either description which may extend to two years or with fine or with both".

Did the Minister and the other members of the legislature both in the government and the opposition ponder and discuss this?

Unfortunately the answer is no. If the law is implemented there would be a moratorium and an ad hoc censorship on court proceedings relating to all sexual offences. No member of the public would know what happens in Court to these sex-fiends.

None of the offenders would be exposed to the public eye. The parents would be in the dark not knowing from whom their children should be guarded as the identity of paedophiles, child abusers, rapists, homosexuals and lesbians would be with-held. These criminals would not in the future fear of public outrage as the media would not publish the proceedings and the sentence imposed on them if they were found guilty.

Like the Bail Act some over-enthusiastic soul has taken the message and the draft of the committee to a bitter and a disastrous end. Has any one discussed and questioned whether these provisions would infringe the fundamental right guaranteed in the constitution, the freedom of speech expression including publication?

In the good old days under the Soulbury Constitution, if any lawyer thinks that the act is ultra vires the Constitution, he would take that objection successfully. But today under the 1978 constitution if the legislature and the public is at sleep any act could be passed and be made into law without a whimper. What our political leaders discussed at the debate to amend the Penal Code is extremely illuminating and rewarding.

A.C.S. Hameed thanked the leader of the opposition for permitting them to vote according to their conscience and one of the most progressive recommendations by the Technical Committee to grant the right to abortions to a woman who had got pregnant by the villain who had raped her was deleted even without a vote.

Tyronne Fernando, a former minister of legal reforms, opposed the imposition of mandatory jail sentence to rapist and advocated that the sentence should be left to the discretion of a judge or a State Counsel. He advocated this with rather startling example.

"A father was charged with the rape of his daughter. I still remember I do not want to mention in which area of this country this was. He (father) said, 'If I do not have a right to take my daughter who has?'. This was thought of as a rape and we got him to plead guilty and we gave him a suspended sentence"

I would like, under those particular circumstances, the Minister to think whether these minimum sentences are salutary when you say, 'You must be sentenced to seven or ten years.'

Nihal Galappathi: "Some doctors who had taken specially the Hippocratic oath indulge in abortions."

Ronnie De Mel: "I will only give him one example. It is about the law of defamation, which has nothing to do with this present Bill. A poor litigant like me had three defamation cases, actually four, against all the newspaper groups in this country. I won all four of them."

But none of these gentlemen and others like Neelan Thiruchelvam ever thought whether some provisions negate the very laudable intentions of the government and are ultra vires the Constitution.

It is unfortunate that every Bill has to be challenged in the Supreme Court by the public. The public would do so only if the Bill has political overtones. Bills like the Bail Bill, Title Registration Bill and the Amendment to the Penal Code would never be challenged by the Public and adopted if the opposition is not astute.

I believe it is necessary that every single bill be submitted to the Supreme Court to determine whether it offends the constitution. Otherwise whatever the constitution states we would have parallel enactment which would be diametrically opposed to the supreme law of the country.

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