10 September 2014

Thilini versus Selva and the justice-deficit

Nimalka Fernando asked an interesting question when Thilini was arrested by the Police.  Thilini is the woman who responded to alleged lewd remarks by a person called Selva by slapping him repeatedly (all caught on camera).  Nimalka asked if the police arrests all men who beat up women. 

Now a situation of domestic abuse is more complicated that an insulted woman turning around and slapping someone.  The perpetrator and victim not just live under the same roof but are ‘tied’ by the fact that they are parents to the same children, have histories which in all likelihood contained happy and sweet moments and so on.  The victims don’t always go to the Police and the act of violence is hardly ever caught on camera. 

Nimalka’s question points to certain skewed elements in gender-based violence, but nevertheless doesn’t rise above cheap rhetoric.  The equivalence implied remains at best dubious.   The Police cannot act unless there’s complaint or else wrongdoing is apparent and warrants intervention.  In this instance, this side of a case for self-defence, Thilini acted as judge and enforcer of judgment.  That’s wrong, it can be argued.    Since it is all on camera, since the physical assault did not follow physical assault or drag the other protagonist into fisticuffs, there is a solid case for arrest.  This of course does not mean Selva was innocent or that his remarks were ‘okay’.  But that’s a separate case; linked, but separate. 

And yet, there’s something in the question that Nimalka has posed that goes beyond incident, embraces the entire gamut of issues pertaining to gender-based violence and most pertinently (and disturbingly) the entire corpus of the law. 

First of all, inadequate social, cultural and legal safeguards have created so many gaps through which the likes of Selva (and worse) thrust their dirty hands to touch, grope and worse.  The same loopholes are used to spout verbal abuse.  Therefore, citing strict caveats such as ‘evidence’ and ‘complaint’ are inherently problematic.  If the law is silent on other transgressions, if society in general is ready to look away when the Selvas can’t keep hands and tongue under check, then society and the law cannot intervene in event of other transgressions.  If ‘evidence’ and ‘complaint’ are what count, then what of tying people to trees (recorded and relayed on television), one might ask.

These are all issues that are currently being widely debated in social media.  Thilini is a hero to some while others feel Selva got a raw deal.  ‘Punishment should fit the crime,’ some argue while others add ‘Thilini took the law into her hands’.  Some are happy that the law is taking its course while others are livid that the victim was arrested.  It is clear, though, that Thilini’s response, as many argue, is larger than Thilini and Selva, a lewd remark and a perhaps over-zealous reaction.  

For every Thilini there are hundreds of thousands who have had to suffer in silence similar or worse acts of transgressions from hundreds and thousands of Selvas.  Thilini’s response, therefore, has to be read as a kind of ‘this is it, we will not take this anymore’ articulation, even if Thilini never once thought she was representing all the Thilinis who came before and who will come after the Wariyapola incident. 

The key word that is the crux of the larger problem is ‘selectivity’.  The law is selective.  The judicial process favors the powerful.  Redress, often, hangs on affordability of skilled legal representation.  The perpetrators are as protected by these realities as by convention, a manifest reluctance to object to transgressions by the general public and the helplessness of victims.  It must be mentioned that if someone is seen picking a pocket, it is quite likely that someone would raise objection and that others would support the objector, but sexual harassment is largely responded to with silence and inaction which, we have to conclude, adds up to consent on the part of each and every witness. 

The incident has certainly served to bring up these issues for discussion in various forums, especially social media and that’s a positive outcome.  It has also provided project-starved NGO personalities and NGOs a lifeline is indicative of other social problems but that’s another issue altogether.  Nimalka’s question is dodgy, speaking strictly in a legal context, but it does invite discussion on a range of issues pertaining to gender relations, sexual harassment, violence and most importantly the selectivity and therefore the loopholes inherent in the apparatus of justice in this country. 

In short, the Selvas of this country are not just using apathy and legal-lax to insult a woman but are abusing these very facilities to pick pockets, throw punches, cheat taxpayers and plunder state resources.  In this context, i.e. where the law is made of holes, it is inevitable that there will be Thilinis.  This time it was Selva.  One man, one woman.  If things don’t change we will have an army of Thilinis taking on an army of Selvas and as things stand it is hard to say if that is necessarily an unhappy situation.   It is, sadly, about ‘Law vs Justice’, and that’s typically an invitation to either revolution or anarchy.