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17th January 1999
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Lessons for the future - Guest column 

Review of prosecutions of child abuse cases - 1998 

By Arun Tampoe - (Attorney-at-Law)
Trials concluded or proceeding in 1998 - both of foreign and local persons accused of sexual offences against children - produced some significant results and lessons for the future 

We may first consider cases where extra-territorial jurisdiction was invoked. 

The prosecution in Zurich of Victor Baumann resulted in his conviction without a protracted trial. This case demonstrated how effective the Civil Law system can be in terms of time, expense and extent of documentation of evidence . The proceedings involved far less resources and no emotional suffering to child victims or witnesses unlike corresponding trials in this country using the adversarial system. What is notable in this case is that the penalty was the lesser of that provided by Swiss cantonal law or Sri Lankan law. Also the monetary penalty that was decreed under Swiss law could not have been imposed under ours. Dealing next with the local scene, where foreign paedophiles were involved, the premature release of the convicted Swiss paedophile Armin Pfaffhauser came as a surprise to activists. What was even more surprising is that he spent no time in getting his hands on the same two boys with whom he had been indulging in unlawful sex and been tried and convicted in the first place. Due to the shortcomings of the Sri Lankan system the boys received no therapy while in confinement, nor were they rehabilitated in any way. They were being held in a remand home pending another trial in which they were involved. How they obtained their release and absconded with their 'abuser' is a mystery that remains unsolved.

Pfaffhauser is now under detention ( but not in remand jail ) pending the outcome of a police recommendation that he be deported rather than prosecuted for a subsequent offence of a similar nature. The other local case of note is that of the Belgian Luc Coomans who having jumped bail in July 1997 continues to be at liberty in his home country. Despite representations made to the Belgian authorities by the Sri Lankan Government, he has still to be tried for his offences in Sri Lanka.. A much older case is that of Thomas Kaspar Wirz, a Swiss who having been arrested in 1995 for sexual abuse of children managed to flee the country He was traced to Basel and after protracted delay in translating and submitting documentation through the 'right channels' there is a likelihood of his being made to serve the sentence passed on him in absentia by the Kesbewa magistrate in February 1997. 

Prosecutions of Sri Lankans

The cases that received the greatest interest are those of the schoolmaster from Mahinda College, Galle and the 'Beach Baba' case from Hikkaduwa. The former case is well under way in the High Court of Galle and one of the alleged victims, a child witness is now under cross examination by defence counsel. Observer reports of the proceedings are to the effect that the worst fears of child rights activists are being realised. 

The court seems helpless to prevent lewd and salacious questions from being levelled at the child (now 16 years old) by the defence. The abuse in question is said to have taken place 4 years ago and the children have not only received undesirable publicity but could well carry the stigma of being sexually contaminated persons for many years to come. This case has also been characterised by delays both due to the court process and absence of counsel for the defence. The amendment to the Code of Criminal Procedure (Act No.28 of 1998), requiring courts to give priority to trials of persons accused of child abuse, was overlooked by the court on one occasion at least. Apart from this, the delay in reforming the law to permit video taped or closed circuit TV evidence of children to be led, has been demonstrably injurious to the well-being of the child witness (victim) in this trial. Similar scenes were witnessed in the Matara trial of children alleged to have been abused in a 'home' run by a religious order. The 'Akmeemana case' as this case is popularly known is in its 3rd year !! It is regrettable (to say the least) that as more such cases of child abuse are brought to court the system continues to weigh heavily against the victim. This, despite repeated assurances by government of implementation of the provisions of the UN Convention on the Rights of the Child. 

Structural reform of the criminal justice system is long overdue. If not in relation to adult offenders and victims, at least in cases where children are involved, the application of the prescribed process seems to result in avoidable trauma to children and encourage criminal conduct by potential abusers . Our criminal justice system seems in practice, to protect the guilty and punish the innocent. It is no small wonder that offences against children go unreported. If the proceedings in trials at which the writer has been present are anything to go by, the state must bear the responsibility for continuing to apply a system that by its nature instils fear and awe rather than confidence and respect for the law. The attitude and general deportment of even minor functionaries in the High Courts and below are overbearing to the public and haughty to all but judge and counsel. 

The prosecution of a small time industrialist in Marawila M.C for violating labour laws is another glaring example of the inadequacy of protection for children in the employment situation. In this case, though the prosecution is doing its best, the lack of support for the parents and care for the child victim is tending to obscure the issues. It is premature to comment on the merits, but the fact remains that a child of 9 years has lost most of his right hand and a benevolent state looks on idly while the wheels of the law grind slowly as the court judges the guilt or innocence of the alleged wrongdoer. We cannot feel complacent about the way in which the revised criminal laws are being enforced insofar as offences against children are concerned. The police have remarked on the lack of willingness of witnesses to give evidence . Information is also withheld unless some sort of monetary reward is offered. The case of the soldier who was alleged to have sexually abused his niece (virtually his ward) and made a photographic record of his misconduct, may be cited in this context. A public spirited businessman was sufficiently motivated to inform the police of the pornographic content of the film roll in question. 

When the case eventually came to the High Court, the charge had been whittled down to something other than what he was led to believe it would be. Inasmuch as the decision as to what sort of charge the available evidence would sustain is that of the crown, the lack of public response during investigation and evidence gathering tends to favour the culprit. What emerges from this brief look at child-related trials during 1998 is that reforms are most urgently needed in the structure of the courts so that trials are completed quickly. 

The courts are overburdened. The transfer of such cases to the High courts has not made any difference. Further, there is a need for the Law of Evidence and Procedure to be refined so that proceedings in which children are involved are less damaging to the child. As a rule, children must not be tried in the same courts as adults. There is also a need to provide children who come in to court as offenders, victims or witnesses with legal counsel of sufficient calibre. Children are not able to understand the judicial process and are likely to suffer emotional injury , in addition to the stigma associated with alleged sexual misconduct. No amount of amendments to the Laws can improve the overall position unless the changes are widely understood and acted upon by law enforcement agencies and the judiciary. The National Child Protection Authority will have a pivotal role to play in this key area.


Fundamental rights

Mahinda Palitha Wijesuriya Vs The National Savings Bank and Seven Others SC Application No 142/95 

Before Fernando J.Wadugodapitiya J.Wijetunge J.
Decided on 31/01/1997

Article 12(1) of the Constitution/ Applicable criteria with regard to marking scheme for promotion/ Right to be free from discriminatory treatment.

The Petitioner argued that his fundamental rights to equal treatment had been violated due to his political affiliations in that he had been unfairly discriminated against in interviews held for the post of Regional Security Officer in the Respondent Bank. He alleged that the action of the 7th Respondent Chairman in cancelling the results of the first interview where he was ranked first and thereafter appointing a second interview board according to which results he was placed eighth and thus denied promotion, infringed his rights under the Constitution.

(Judgement of Wadugodapitiya J. )

Held that the fundamental right of the petitioner to be free from discriminatory and unequal treatment is violated in circumstances where an interview held for posts of Regional Security Officer based on a known scheme of marking and conducted by high-ranking bank officials and where the petitioner was placed first in the rating is cancelled by the 7th Respondent Chairman of the Bank on the "hazy and subjective" ground that the interview had not been conducted properly and replaced by a subsequent interview based on a totally different scheme of marking that was not made public to the applicants including the petitioner who came eighth in the ranking and was therefore denied promotion. 

"It has been held more than once, that it is imperative that candidates at interviews must be afforded equal opportunity of presenting their cases when facing Boards of Interview and that one of the ways of achieving this end, is to make known in advance, the criteria to be adopted and the scheme of marking, specially when a significant change is to be made" the Learned Judge held.

Order made to the effect that the assessment and recommendations of the first Board of Interview should stand and the second interview be set aside as invalid and of no effect. 

Petitioner awarded compensation by the 1st Respondent Bank in the sum of Rs 10,000/= 

What constitutes consultation

In a judgment of its Constitution Bench delivered in November last year, the Indian Supreme Court has held that when appointing judges to the appellate courts, the term "consultation with the Chief Justice of India" in Articles 217(1) and 222 (1) of the Constitution requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice. The sole individual opinion of the Chief Justice has been held not to constitute "consultation" within the meaning of the Constitution. The opinion which clears up doubts created over previous judicial pronouncements seeks to ensure transparency in the consultation process by insisting that the opinion of all members of the collegium of judges, which consists of the Chief Justice and the four most seniormost Judges of the Court, in respect of each recommendation must be given in writing. These have to be forwarded to the Government. The collegium would make its recommendations based on consensus, as far as is practically possible, and where such consensus is departed from, the reasons would have to be set down in writing. The Chief Justice is also expected to prepare a memorandum of views elicited by him from non-Judges on the proposed recommendations and convey the same to the Government. Indian legal experts have welcomed the opinion as widening the scope of the selection process but calls continue to be made for the formation of a National Judicial Commission which is felt to be the best method by which democratic accountability in the matter of appointments to the higher judiciary can be ensured. 
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