Kishali Pinto Jayawardene
The Concluding Observations of the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) issued in regard to Sri Lanka on March 3rd this year is illuminating in several respects.
It was significant that the Observations were released just a few days before the world marked the International Day of Women. In Sri Lanka, this customarily signifies an empty parade of speeches and social events with no actual impact on gender rights.
Direct focus on the Witness Protection Authority
In recent years, it has also come to mean that the country’s politicians pontificate on the ‘achievements’ of women in sublimely ridiculous outpourings. And to be frank if not brutal, we have not seen any discernible difference in such absurdities when female Heads of State and Government have been in office either.
But as enormously tempting as it may be to dwell on that at satirical length, there are important and substantive issues that need to be discussed. CEDAW’s recommendations this month hone in on some of these most vital steps that need to be taken by the Sri Lankan state in that regard.
The Committee has stated that the integrity and independence of the accountability processes for women war victims be secured and that the judiciary and the legal system need to be fundamentally reformed. One crucial recommendation is that the Government expedites the review and amendment of the Assistance to and Protection of Victims of Crimes and Witnesses Act.
Women persisting in their struggles for justice
Stressing their profound concern, the Committee has asked Sri Lanka to incorporate better safeguards for the independence and effectiveness of the judiciary and witness protection programmes, in line with international standards. As discussed in these column spaces last week, the holding out of this Witness Protection Authority as a major achievement of the Government’s progress since 2015 was a farce in the worst sense of the word.
This body has not demonstrated any capacity, commitment or willingness to practically address the extremely dire situation of victims and witnesses who are being threatened as a continuous facet of life in the legal process.
Certainly women rape victims are at the frontlines of these threats. This is seen very well even in cases that have come to some successful conclusions in courts of law. For example, the Jaffna High Court’s October 2015 decision in the Vishwamadu rape case exemplifies this.
Intimidation not limited to women of the North
True, the prosecution ultimately resulted in the conviction of four soldiers for raping one woman and sexually assaulting another in 2010. But this was due to the extraordinary bravery and persistence of the women at the centre of the trial who persisted in the face of direct threats and intimidation. This ranged from being asked to destroy evidence of the rape very early on to being offered bribes to ‘stay quiet’ to being subjected to a second ordeal in court when they were asked the most searching questions in relation to their trauma.
All this was moreover in the context of continued threats by both the police and the military in the region. In many similar cases, the women have fled the country, unable to bear the vicious retaliation meted out to them and their family members for daring to invoke the sri Lankan legal system in their aid.
And to be very clear, this is not a pattern limited to the North and East or to victims of one ethnicity. Under the Rajapaksa Presidency, the women of Kahawatta and Deraniyagala stand symbol to the destructive link between local-level thug-politicians and state systems that prevent effective investigation of appalling incidents of rape.
A complex failure of justice
Ideally a Witness Protection Authority should be the primary source of relief to which these women, whose bravery exceeds their male counterparts, should be able to appeal to without a doubt. Yet can any one of us, with a conscience, declare that such victims even in the future can actually look for succor to this state institution? That is the ultimate question.
The Authority counts in its ranks, individuals who have been best known (as documented in detail) for using the authority of the State to threaten witnesses themselves during the past decades when ordinary Sri Lankans were compelled to undergo gross human rights abuses. Its so-called Protection Division is situated within the command structure of the police itself. If this is how the Government proves the credibility of these institutions, one can only rest one’s profoundly skeptical case. This exemplifies certain truths.
As observed in the book (co-edited by this columnist, The Search for Justice, the Sri Lanka Papers, Sage India 2016), the framing of sexual violence in Sri Lanka should not be seen as a pure by-product of war. The over simplification of what remains a pervasive and complex failure of justice directly linked to the complete breakdown of the Rule of Law indeed makes dealing with the issue far more difficult as it obscures the real power dynamic at play. The crisis is informed and enabled by fiendishly clever minds at play, intent on entrenching impunity where it matters most; the law and the legal system.
Reform of customary laws
Meanwhile, the CEDAW also observes that though a Cabinet Sub-Committee was appointed in 2016 to amend the Muslim Marriage and Divorce Act and a Committee was appointed by the Minister of Justice in 2009 to consider and propose reforms to Muslim Personal law and the Quazi courts, no substantive recommendations have been forthcoming.
Particular concerns of the Committee included the fact that though the Muslim Marriage and Divorce Act does not specify a minimum age of marriage. Consequently girls under 12 years of age are permitted to marry. Further legal and judicial officers (Quazis et al) are restricted to male Muslims only. Moreover, the law on statutory rape is not applicable to girls under 16 years of age legally married under Muslim law. All in all, these are valid concerns that need to be addressed.
Innumerable committees and forums on women and for women which this Government apparently delights in bringing into being really do not address the heart of the matter where all these failures of justice are concerned. Let us hear less of lofty speeches and see more of actual structural reforms in that regard. Surely it is high time and more for this?