Seya Sadewmi’s Death and What it Teaches Us

With the dead body of five year old Seya Sadewmi being discovered in a patch of bushes near a small stream in Kotadeniyawa, several social discourses have come to limelight. Primarily, there seems to be a push from the society for the reimplementation of the death penalty. Secondarily, there is the issue of the media, pardon the expression, overstepping the boundaries of their freedom of expression. Thirdly, there is the usual scenario of those attempting to fish in troubled waters. In addition to these three issues, I have also observed in numerous videos, how the crime scene is being contaminated by those who rush in without any care in the world as to whether they will be destroying valuable evidence pertaining to the crime. These issues demand analysis and in the following passages, I express my opinions of the same. This piece is not about the innocent dead child, but about the problems arising from the social discourse pertaining to her death.

Judging by the fact that a lot of controversy has arisen on and around Article 9 of the Sri Lankan constitution, which gives ‘foremost place’ to ‘protect’ and ‘foster’ Buddha Sasana, it is surprising to see how many are willing to easily depart from the first precept of the five precepts by advocating the reimplementation of the death penalty. As was aptly and sarcastically stated by Mr. Thishya Weragoda (young, dynamic Attorney – at – Law) for the protection of the ‘dharmadweepaya‘ we seem to be in need of a hangman and a noose. According to what little I know of Buddhism, one needs to inculcate in oneself ‘sīla’ as a foundation to follow dhamma. The moment that one strays beyond the five basic precepts, it is Buddhaquestionable whether their so-called devotion to Buddhism is one of ‘shraddā’ or of ‘amulikā shraddā’. Moreover, it is necessary to ascertain whether the taking of a life, which is to do with the ‘an eye for an eye’ approach, or what we call lex talionis in Roman law, can really help to deter, rehabilitate the society and is of any utilitarian value. I am of the view that it only amounts to revenge. If it is of utilitarian value as one can gain a pleasure out of the revengeful happiness that one gains from the murderer being put to death, then we have to reassess where we stand as ‘decent’ human beings.

NooseAs there is a social dialogue in relation to the reimplementation of the death penalty, it is important that one refers to countries with such laws to ascertain whether their crime rates are lower. Some expressing views on social media argued that crime rates can be reduced by the introduction of stricter penalties as in Saudi Arabia. While it is true that certain countries such as Saudi Arabia, Afghanistan, Iran and China have strict penalties against rapists, these countries seem to be avoiding the maintenance of an official database containing statistics of such crimes. However, other sources indicate that rapes go unreported in these countries due to various reasons such as honour killings, victim shaming and strict requirements of burden of proof (see thisthis, and this). This poses the question whether stricter laws necessarily reduce crime rates.

According to Article 1 of Law of Criminal Procedure in Saudi Arabia, ‘court shall apply Shari’ah principles, as derived from the Qur’an and Sunnah’. The interpretation of Shari’ah principles pertaining to rape in Saudi Arabia is that the perpetrator be executed through the act of throwing stones at him (See Elizabeth Peiffer, ‘The Death Penalty in Traditional Islamic Law as Interpreted in Saudi Arabia and Nigeria’ [2005] William and Mary Journal of Women and the Law 507). However, it is questionable whether women and children are protected from this punishment as traditionally perpetrator’s evidence is used to ascertain his guilt and the rape victim is expected to bring in testimonies of four witnesses in order to fulfil the requirements of her burden of proof. It is amusing to think that a perpetrator would first invite four witnesses to observe his crime so that it later becomes easier for the victim to satisfy requirements of burden of proof. However, some argue that this is a common misconception pertaining to An-Nur 24:5 of the Qur’an which states that those who accuse chaste women of unfaithfulness are required to bring four witnesses to prove their claim or else suffer eighty lashes for the immorality that they have performed. The argument is that this requirement has no connection whatsoever to do with rape.

Irrespective of the legal situation in Saudi Arabia, attention needs to be paid to the practical implementation of their laws as well. There was an equally powerful social discourse regarding the Saudi Arabian court which sentenced the 19 year old gang rape victim to receive 200 lashes for violating the norm of being accompanied by a male at all times in public. It is hence possible to state that the mere existence of stricter laws would not bring about justice.

According to Section 427 (2) of the Afghan Penal Code, in cases of aggravated forms of sexual violence, the perpetrator may be sentenced to death or long imprisonments. Amnesty International records that 240 cases of honour killings have been reported in Afghanistan despite the existence of strict laws. Moreover, the number of rapes reported is considered to be much lower than the actual incidents just as in Saudi Arabia due to the honour killings to which victims are subjected.

Iran and China are also nations where the death penalty is imposed on those convicted of rape. China, as per Article 139 of its Criminal Law, contains punishments varying from an imprisonment of three years to death penalty depending on the gravity of the crime that has been committed on the victim. Iran shares certain similarities with the facts that have already been recorded in this piece in relation to Saudi Arabia and Afghanistan.

It is not surprising to note that sites comparing rape statistics of the world do not often contain statistics of countries in question due to the sole reason of such statistics being officially unavailable. In that light, there is no wonder that these countries with higher penalties and higher non-reporting rates of rapes do not make the list of nations with the highest rapes of the world. It is hence clear that a mere reimplementation of the death penalty will have no bearing on the reduction of rapes in Sri Lanka. If crime and deterrence went hand in hand, there should be no crimes at all in Saudi Arabia where there are brutal, inhumane punishments against offenders.

Even if one does support the death penalty in relation to serious crimes, it is also necessary to think of instances of injustices that can be so brought about. It was reported in December 2014 in Mail Online that a Chinese man who was executed on a conviction of rape and murder nearly two decades ago has later been declared innocent. The irreversibility of death penalty poses this problem especially because justice does not always take place merely due to the existence of law. I beg to ask those who propose the death penalty whether they are willing to take on the responsibility of the death of an innocent individual in case an executed prisoner is later found to be innocent. All I know is that I do not want blood on my hands and therefore that I abstain from proposing that the death penalty being reinforced.

The second issue pertaining to the 5 year old girl’s death is the proliferation of sitesMedia Freedom and media outlets posting pictures and videos of her dead body. It is also ironical that the National Child Protection Authority of Sri Lanka which has been incapable of preventing crimes against children, cautioned the public against posting such videos and pictures. According to currently available data, in 2011, a total of 1463 rapes committed against children have been reported in Sri Lanka. In that light, I am not exactly certain as to how prevention of publication of crime victims’ photos and videos alone is expected to do justice to Seya and other victims although I agree that the media has overstepped its boundaries in using her pictures, perhaps to gain more views. This calls in to question the extent of media freedom that should exist in a country. While the media should publish news of crimes with the expectation of having an impact on the society whereby people are made aware of both how to abstain from committing crimes and also to educate them of how to be safe from crimes, it is questionable whether it is necessary to publish pictures of a sexually abused infant in order to do that. This is one aspect of fishing in troubled waters.

Secondly, a dialogue that I observed on social media also indicated that bringing of Shari’ah legal penalties for those who commit such barbaric crimes would deter perpetrators and put an end to crimes against women and children. I personally observed this soon escalating to a dialogue on whether Islamic law is superior or the penalties that existed during the ‘ time of the Sinhalese Kings’ are superior. This is the second aspect of seeing opportunity in calamity. According to the facts that I have portraPunishmentsyed above regarding nations with severe penalties for crimes, there does not appear to be a correlation between the increase of penalty and the decrease of crimes. In fact, there is no official data even suggesting that crimes are lower in nations with higher penalties or the death penalty. Accordingly, I am only left with a feeling of bitterness in my head against those who want to exploit this tragic incident to bring to the core a conversation as regards which extremist interpretation of law is superior.

The other issue of importance with regard to all crimes, that do not however seem to initiate sufficient dialogue in social media, is the importance of preventing crime scene Crime Scenecontamination. It needs no mentioning that evidence is of great importance in a criminal matter and every piece of evidence that can be gained from the body of the victim, the crime scene and the surrounding areas of the crime scene are of utmost importance. Section 114 of the Code of Criminal Procedure of Sri Lanka states that the accused should be released if there is an insufficiency of evidence, and the relevant authority fails to justify the accused being produced in a court of law. Moreover, Section 370 requires an inquirer to proceed to the place of crime when the person has died of unknown causes. This requirement is in place to allow finding of more pieces of evidence from the crime scene. If not for this law, it would be convenient to demand that the dead body be brought to the inquirer in order to carry out the investigation. This highlights the importance of not contaminating the crime scene and keeping it as untouched as possible until it is subject to the inquirer’s investigation. It is important to not move or change the position of the dead body as the posture may also contain evidences as regards the cause of death. For instance, in most cases of asphyxia the cause of death is easily ascertainable if the posture of the corpse is not subsequently changed by someone who comes to the crime scene. Cordoning off of the crime scene is extremely important. However, in Seya Sadewmini’s incident, anyone who watched news videos could have observed how crowds of people came to the crime scene, thus, perhaps destroying a multitude of valuable evidence that could have been gained from the scene of the crime. Such contamination could erase traces of foot prints etc belonging to the perpetrator which could be of extreme importance in identifying the culprit.

While the impact of social media on law, governance, justice and freedom is commendable, incidents of this nature may also indicate a negative aspect. Overpublicizing certain news elements merely for personal gains, prove to be extremely harmful to the cause at hand and may also cause unspeakable misery to those connected with the incident. It is time to rethink whether the introduction of harsher laws in the absence of mechanisms to raise awareness in the society is useful and effective as a tool of crime prevention. It is also time for people to learn to abstain from crime scene contamination. Moreover, those who are good at promoting self-serving agendas using any and every platform better rethink and reformulate their notion of decency.

Boston Bomber, ‘Collateral Damage’ and Clarke’s Strategy

When I first heard of the Boston bombing and that 3 people have died, I was not shocked. Not because I was not a sensitive human being but because my sensitivity in terms of being shocked by bomb blasts had by then been greatly numbed by the thirty year Sri Lankan war during which the brutal Liberation Tigers of Tamil Eelam (more commonly known as LTTE) killed civilians in tens and hundreds. However, when I recover my wits, I always get traumatized by the level of brutality that a human being is capable of showing against another. In this case, it was the same. Little did I know back then that I would be living in Boston when the trial of Tsarnaev was ongoing in the United States District Court of Massachusetts. This post is not meant to be a tribute to those who lost their lives or suffered injuries. Nothing can be a tribute to such a horror. The extent of brutality of bombs should shame humanity as a whole. There are no words to make up for the losses that people have suffered. That is all I could say except for watching in awe those who, like Jeff Bauman and Kaitlyn Cates, stand up stronger than before.

If this post is not a tribute to those who lost their lives or who are rising up stronger than before, then what is it about? This is about collateral damage. The con220px-BostonSuspect2cept which has been stretched too far by all warring states. This is about techniques employed by Attorneys – at – Law whose previous successes at various courts feed into their non-inflatable egos. In layman’s terms collateral damage refers to ‘deaths, injuries, and damage to the property of people who are not in the military that happens as a result of the fighting in a war’ (Merriam Webster Dictionary).  But for Tsarnaev, the deaths of the three individuals were collateral injuries. For what? For the killings of Muslims in Iraq and Afghanistan. (An analysis of the legality of the attacks in Iraq and AfghaAP Inistan are saved for a future post). The distorted notion of collateral damage is something that one hears on day – to – day conversations perhaps due to the unfamiliarity of what actually constitutes of collateral damage. Anything that directly targets and attacks civilians is not collateral damage. It never was. It never will be. A reference to the Additional Protocol I (AP I) to the Geneva Conventions of 1977 seems to be relevant in this regard. According to Article 57 AP I (The AP I is applicable to international armed conflicts.) even in an international armed conflict, precautionary measures have to be adopted in order to achieve the relevant military objective. The deliberate attack on civilians for any purpose (including the purpose of demoralizing the enemy forces, or to teach a government a lesson) is against accepted rules and principles of International Humanitarian Law. However, it is alleged that Tsarnaev had written a note stating that the deaths that occurred at the Marathon Bomb amount to ‘collateral damage.’ Well, they do not. While nobody would accept this lame attempt at justifying the horrible act, what some  – the kind which prefer to appear intellectual by clinging to claims of justice – would say is that it is acceptable as a legal defense or worse yet a reasonable act of retaliation for the deaths of the Muslims in other regions.

While one should not be quick to judge or jump into conclusions about someone’s guilt, it is necessary to understand that there is a limit to which legal defenses can be stretched to save a defendant. While lawyer Judy Clarke should be praised for her talent in law and her ability of obtaining life sentences for those who she defends, her strategy in the current case is questionable. The three notable convicts she defended – Jared Lee Loughner, Susan Smith and Ted Kaczynski (who is more commonly known as Unambomber) pleaded guilty and were sentenced to life imprisonment. However, in the present case, Tsarnaev has not pleaded guilty although he has not expressly refused responsibility for the charges against him as well. While Clarke attempted to raise the insanity defense in the trial against Ted Kaczynski who was at a previous stage subject to some psychological experiments which are claimed to have unsettled his mentality, she was unsuccessful in doing so as Kaczynski refused to accept the defense and instead pleaded guilty. In the case at hand, Clarke was reported as having told the court that Tsarnaev is responsible for the acts and also that those acts were the results of being misguided. This new strategy may play an important role in how the Jury perceives the suspect. Earlier today Katherine Q. Seelye explained in New York Times, the impact that such an approach can have on the members of the Jury.

What is interesting in the way that Clarke has characterized the alleged suspect is that he seems innocent not because he is not responsible for the acts but because his Judy Clarkeresponsibility cannot be considered to be purely attributable to him when there are implications that he was misguided. In other words, although he is physically responsible, he remains morally innocent as he was corrupted by some other person who instilled anger in this young man’s mind. The defense gets even more interesting in the sense that the lack of an express guilty plea paves way for Tsarnaev to lodge an appeal if the verdict happens to be unfavorable to him. This was not an option available to all the other famous defendants defended by Clarke. It is widely reported that Clarke is capable of seeing the good side of every human being – even in the one’s that the world generally tend to despise. Would she succeed in protecting Tsarnaev like she protected the other defendants? Would this mark a more glorious victory for justice?  We have to wait for the verdict to know whether justice would prevail.  Is it just to take the life of a man who took another’s life? Is it just to let him serve a life sentence and be supported by public funds? What is justice anyway???

(All images used in the posts unless otherwise mentioned are drawn from https://images.google.com/ and the author does not hold copyright over the photos used.)

Related Posts

https://believervsnonbelievers.wordpress.com/2015/03/11/tsarnaevs-blood-streaked-messages-shown-to-jury-in-boston-bombing-trial/

https://willyloman.wordpress.com/2015/03/04/dzhokhar-tsarnaevs-defense-attorney-judy-clarke-sold-him-out-punching-her-ticket-to-a-justice-department-career/

Rape of Law

The controversy pertaiimagesning to the ban of  BBC’s recent documentary on the Delhi Gang Rape, titled ‘India’s Daughter’ led me to rethink my position of decency and justice. The reasons given to justify the ban were that it: 1.   violated Four Indian Statutes (despite my attempts, I have not been able to recover the said statutes except a very general idea of the same) 2. has the potential of inciting public outrage 3. gives overarching importance to freedom of expression 4. gives a  platform to Mukesh Singh (convicted of rape and murder and currently on death row) 5. reveals the identity of the victim and violates privacy.

I was subject to the torture of sitting through the intellectual academic circles arguing in a very divided manner on the issue which was indeed a surprise. My surprise was primarily caused due to many reasons. The assumption that underlies the argument that the documentary can cause public outrage is that such an outrage did not occur when the incident took place in 2012. However, this is an erroneous notion as the rape and murder of the young lady did cause an outrage in India in 2012. (For instance, see http://www.dawn.com/news/772717/outrage-over-delhi-gang-rape-swells-across-india-2). The contention that the documentary gives overarching importance to freedom of expression is unacceptable on many different levels. Primarily, there was already many different articles, blog posts, community talks and the like on the issue where the details of the rape had been revealed. Secondarily, the documentary (at least in my personal point of view) does not seem to impede the judicial process. Thirdly, freedom of expression should only be restricted if it affects other rights. Unless it can validly be shown in this situation that the documentary does in fact impede the judicial process or that it violates other rights of the community, there does not appear to be a valid reason for the ban.

Some further argued that the documentary gives a platform to Mukesh Singh. This perhaps is caused due to sentimental reasons and emotions that are evoked in those who watch the documentary. Nonetheless, I am incapable of conceiving how it could be perceived as a platform for Mukesh Singh unless it can be considered as providing him an opportunity to portray himself as an innocent person which I don’t think is the case in this documentary. Although he attempts to argue that he was merely driving the vehicle, his remorseless attitude and misogyny makes a reasonable person doubt his innocencimagese beyond a reasonable doubt. Perhaps, those who argue that the documentary gives Mukesh Singh a platform base their views on what the Defense (so-called)Attorney states. An accused, irrespective of how gruesome his conduct has been, has a legal right to be defended and has the right to fair trial. However, that does not mean that the Defense Attorney’s arguments should be based on morality and general advise to the women-kind on how not to get raped, what to wear and what time to come home. There is a reason why the lawyer’s job is referred to as an Attorney – at – Law and not an Attorney – at – Morality. Mr. M.L. Sharma, does not bring up any LEGAL justification for the acts that have been committed and fails to prove his capacity as an Attorney – at – Law.

images

Mukesh Singh does try to provide his (rather pathetic) justifications by making (quite outrageous) statements such as ‘You can’t clap with one hand, it takes two hands to clap’, ‘a decent girl won’t roam around at nine o’clock at night’ (judging by that standard, I admit I am not decent. I am proudly indecent. On certain days, after having remained in the Faculty of Law until seven o’clock in the evening judging student presentations, I reach home past nine. Hence, I am indecent. I travel alone some nights when my husband is incapable of picking me up. Hence I suppose I am extending a hand to clap with.), ‘a girl is far more responsible for rape than a boy’, and in relation to another rapist he says that ‘he was capable of anything’ (so the girls on the street should have telepathy to ascertain what the passersby are capable of), ‘out of shame they would learn a lesson’ (from the rapist school of discipline, I suppose), ‘the death penalty will make things even more worse for girls’ (pray, explain how!), ‘now when they rape, they won’t leave the girl like we did. They will kill her’ (fact: they DID kill her. Her intestines were pulled out. An iron rod was inserted into her vagina). I beg those who consider this a platform for Mukesh Singh to explain how in fact, it becomes one.

The next issue is the identity of the victim which was revealed in the BBC Documentary. However, this is not the first instance in which it was revealed. (See http://tvaraj.com/2013/03/13/news-main-delhi-gang-rapist-dead-was-it-suicide-or-murder/) (Note its date of publication. There may have been even prior revelations of the victim’s name which I will not be digging into in this post) . The link provided herein gives more detail than just stating the name of the victim and it states that her father wished to reveal the victim’s name. Moreover, prior to the documentary begins, it states that the film was made with the cooperation of Asha and Badhri Singh, the rape victim’s parents. In light of these, it amazes me that some argue on lines of privacy. Are we talking of the privacy of the girl? I am sorry to say that it was violated the moment that the bus that she was traveling in, deviated from the usual route. Her privacy was violated by those who favor the idea that women should not be out on the streets after a particular time of the night. Her privacy was violated by those who demand that women should dress one way or the other. I do not wish to venture into the issue of the parents’ privacy as it is not a concern that arises as they have voluntarily consented to the facts of the matter being released to media – which I personally believe is a good decision although I cannot imagine the trauma the parents might be going through…

In short, I am shocked. You should be too… What has the world come to?

(All images used in the posts unless otherwise mentioned are drawn from https://images.google.com/ and the author does not hold copyright over the photos used.)