24th August 1997

Prevention was worse than Cooray

By Rajpal Abeynayake

B. Sirisena Cooray is richer by 200,000 rupees, thanks to the Secretary of Defence who acted on behalf of the government of Sri Lanka. It's fun because the establishment asked for it. The liberty of the subject cannot , (even under emergency regulations) be curtailed on arbitrary and capricious preventive detention orders. The award made to Mr. Cooray was greeted with shouts of Jayawewa (immediately outside the courthouse ) providing a spectacle that underlined the political connotations of the entire fiasco.

The state machinery has been running into trouble with the law too many times recently. But what's funnier is when state-controlled newspapers make a feeble attempt at damage control. One such organ made some noise recently about the Broadcasting Bill which was unceremoniously thrown out by the Supreme Court. The unctuously apologetic broadsheet claimed that the PA had been very media friendly because after all, "the Broadcasting Bill was stopped in its tracks after the Supreme Court decision was made.'' That was rich. The PA had no choice but to obey the law.

The other side, another case...

The newspapers wanted Elster Perera excoriated. Human Rights activists followed the lead. Now the late Elster Perera, everybody's favourite rapist, has been exonerated. Though a fellow writer had touched on the Elster affair in these columns recently, it needs be said that the Elster Perera story has far greater lessons in it.

Here is a brief run down of the Elster Perera story: Retired Assistant Superintendent of Police Elster Perera, was accused by his 15-year-old domestic Sandhareka, of raping her on no less than four occasions. She told police that her vaginal area was sutured due to the severity of the assault. The Attorney General's Department advised the police (in June 1993 ) not to proceed with the prosecution due to insufficient and unsatisfactory evidence.

The newspapers and generally the chic intelligentsia were scandalised. They wanted the AG to proceed against Elster Perera because of the "severity of the alleged crime'' and on the presumption that a 15-year-old girl will not lie. Upawansa Yapa acting in the absence of the AG desisted, but the newspapers, or at least some of them, attacked him mercilessly, backed by a coterie of perhaps well meaning human rights activists who had nevertheless made a hasty assessment of the case.

The case was finally given over to the CID, but in the meantime Elster Perera died of brain stem haemorrhage. That was that, we all thought. But this year, the victim Sandhareka confessed that it was her father who had raped her, adding the gory details about how blood from a wart on her foot was used to daub her underwear to make out a sexual assault.

So far no newspaper or human rights activist who was associated in heaping calumny on Elster Perera on that occasion has come forward to apologise to the family. Deepika Udugama, an academic and a human rights activist has been quoted in a local daily as saying that she "cannot speak on behalf of hundreds of others but my main concern was that of process."

Ms. Udugama or any other academic should think of the fact that perhaps the family of the late Elster Perera deserve to be dignified by at least a clarified statement on the case. The Attorney General's Department was satisfied that there was a lack of evidence, or that whatever evidence available was unsatisfactory. For example, it was explained at an unprecedented press conference held by Upawansa Yapa (in the absence of Tilak Marapone in 1993) that no scars were found or sutures near her vaginal area, and that there was no corroboration. The state had to rely merely on her statement that "the other servant told her that the suspect had sex with her three times.''

The AG's Department does not "observe process'' by filing indictments on somebody's whim. It is the prerogative of the AG's Department to refrain from filing indictment if there is an obvious lack of evidence. The AG can also enter into nolle prosecui and withdraw the prosecution in a continuing trial.

A columnist dealt adequately on the legal aspects of the Elster Perera case in these pages. But what this column wants to focus on is the larger issue of the responsibility of the media and the intelligentsia.

Newspapers collectively (not just the tabloids) cannot get carried away with the notion that the newspapers are on a public action crusade and are therefore competent to judge a considered decision made by the then Attorney General.

Apart from the newspapers, Professor Savithri Goonesekera has said that the "benefit of the presumption was with the suspect, and that since he was not convicted, there is no question of his being exonerated!"

This presupposes that no damage could have been done to this man by the mere fact that he was hauled up before court, that he was believed to be the accused in a child-rape case.

Alright, everybody makes mistakes. But shouldn't there be a clarification by the intelligentsia that they should not have been so hasty about condemning the AG's dept. decision not to prosecute? Wouldn't it be the humane thing to do, considering the plight of the late ASP's family, and the fact that Elster Perera may have been driven to his death because he was the accused in a case of this type?

This is not to say the AG's Department is taken to be above board in all cases. The fact is that in this case there was no indication that the AG's Department had a hidden agenda; hence there was no need for the media to be overzealous because it had been made clear by the AG's department that there was a lack of satisfactory evidence — such as the fact that there was no indication of sutures in the vaginal area, as the girl had claimed.

The facts should have been seen in this light, and the press collectively should have acted more responsibly. The core issue that could be forgotten in this argument about the press etc., is that an innocent man may have been driven to his death by an overzealous press and a do-good activist lobby. Why should anybody fight shy of being accountable for that?

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