By Basil Fernando –
This article is about the manner in which unscrupulous lawyers could manipulate delays in the law to their personal advantage. This type of behavior is now a permanent feature in Sri Lanka’s legal system. Analysis of the methods used for such manipulation are based on experiences from actual cases. Reflections on the behavior show that, rather than insisting on correcting wrongs litigants have experienced, unscrupulous persons work out a methodology of manipulation for personal economic advantage.
In cases of serious crimes, trials which take place in the High Courts. The most obvious method of taking advantage is to delay the case through different means (sometimes just to accumulate fees over time). It is done to such an extent that, when the case is concluded years later, it is likely that the final prosecutor or judge has not participated throughout the entire process of that trial. In observed cases, there have often been transfers and changes over the years leading to around six different judges presiding over the case at different times. This includes instances where the final trial judge (delivering the verdict) has not heard any part of the evidence.
The result is this: the judges and the prosecutors involved have to depend on the printed word from recorded evidence. They do not have the opportunity to see the witness, and to form an informed opinion about the truthfulness of the evidence given by particular witnesses. There is not enough time or ability to deliberate about what witnesses say, how witnesses face cross examination and how issues that arise are being handled. Normally, if a trial is held before a single judge throughout, the judge has enough time to make his or her own personal observations. The judge can also apply their own critical mind and be in a position to assess what they have heard and seen in the course of the trial. However, if the trial Judge has to go through most of the evidence by reading through the records, he or she, like any other human being, is likely to miss vital aspects in the evidence.
In such prolonged trials, six or seven judges hear the case before its final conclusion. Even worse is the many transfers and changes of prosecutors during this period. Needless to say, unscrupulous defence lawyers can take considerable advantage of the situation. For example, there are cases in which the defence lawyer, to his benefit, misrepresents the evidence that was laid out in the case. He will either not reveal the evidence laid out by the prosecution that is disadvantageous to the interests of the defence, or, what is worse, he could misrepresent the evidence laid out and claim that such matters are essential to prove the case. For example, there can be false claims that no evidence was presented on a particular matter. These tactics can be used to scupper even the rare prosecutions that do take place on serious violations. In a torture case under the Convention Against Torture Act No. 22 of 1994, the following evidence was laid out by the prosecution: the victim, who alleged torture, was in fact beaten at different places on his body, particularly on the leg. The prosecution presented evidence from the Judicial Medical Officers. It demonstrated that there were marks observed during the medical observation that were supportive of the victim’s claims. However, the particular judge before whom this evidence was laid out had been transferred. The final submissions took place after several judges had presided over the case. The defence lawyer claimed that the victim had claimed to have been beaten on the leg but that no evidence was produced in court about any marks or injuries on the leg during the medical examination. The prosecutor, like the judge, had not been there when the evidence of the medical officer was given and was not aware that such evidence had been laid out, and that the medical evidence had confirmed the victim’s claims. The prosecutor failed to point out to the judge that the submission made by the defence lawyer was inaccurate and that there was in fact medical evidence to support the victim’s claim. The judge, in rendering her judgement, came to a finding on the basis of the defence lawyer’s claim that there was no evidence regarding the injuries on the leg and that this implied that the victim’s claim was false. On that basis, the judge acquitted the police officers accused in this case.
Similar misrepresentations of the evidence are possible because the judges and the prosecutors have not observed the testimonies presented in the case over the years. In another instance, also a case of the torture of a young boy, the initial leading prosecutor showed evidence of the victim’s bodily injuries found during a medical examination by two doctors. Furthermore, 5 eyewitnesses had given evidence on the event of torture. Thus, there was overwhelming corroborating evidence for the victim’s version before the court. It included medical and eye-witness evidence. However, sadly, the judge that gave the verdict did so many years after such evidence was laid out. The defence lawyer claimed before the final judge that there was only the victim’s allegations without corroboration of what the victim had claimed. Given the seriousness of possible punishment, he claimed that such corroborating evidence was an essential element to prove the case. The prosecutor had come to the case at a much later stage, quite close to its conclusion. He either lacked knowledge about the corroborative evidence that was available or had other reasons, but in any case did not object to the false claims made by the defence lawyer. As a result, the judge, believing perhaps that the senior defence lawyer would not lie to the court, accepted his version of the evidence. The accused was acquitted on the basis that the victim’s version of the evidence had not been corroborated by any one.
A large number of actual events from actual cases can be cited. The key issue is the manner in which some unscrupulous lawyers manipulate and falsify actual evidence laid out in court, and how this is not adequately countered by the other persons responsible (including those responsible for overseeing legal ethics violations). This is possible, as was mentioned earlier, because of the length of time taken to hear and conclude these cases. According to a Parliamentary Committee, a case could take up to 17 years or more. In fact, there are cases that have taken even longer.
The heart of the matter
In Sri Lanka, the jury system is no longer practiced although the possibility theoretically exists. In the past, all serious crimes, including murder, rape and other serious offences, were tried by jury. In that situation, the jury is the ultimate judge of the facts of a case. When jury trials were held, they had regular starting and ending times, and jurors in coming to conclusions regarding the facts of the case did have the opportunity to see the demeanor of the witnesses so that they could judge for themselves whether the witnesses were telling the truth or not. At present, trial judge is the sole authority in judging facts as well as the law for each case. However, when several judges hear parts of cases, the last judge, who delivers the verdict, does not have the opportunity to decide on the credibility of witnesses, which is a central issue in making any judgment.
Therefore, all laws permitting judges to hear parts of a case only should be abolished in order to have the possibility of fair trial. Essentially, a judgment written on the basis of evidence not led before the judge who writes the judgment is the result of an unfair trial. An unfair trial is no trial at all.
The abolition of laws permitting the present practice will be resisted on the basis that, given the present state of affairs, long delays in trials are inevitable. If this argument is to be accepted, then it is not possible to avoid the conclusion that, due to the impossibility of ensuring speedy justice, unfair trials are permissible. That is an absurd situation.
A Parliamentary subcommittee has already admitted the ridiculousness of delays in justice and made recommendations for the increase of the number of judges, prosecutors, courthouses and the like for the purposes of ensuring the requirements of a fair trial, including eliminating unnecessary delays. Besides this, in expressing their views on the delays that prevent speedy justice, the United Nations Human Rights Committee has also repeatedly recommended to Sri Lanka as a state party not to violate people’s rights by denying them their right to a speedy trial.
Although it is not openly expressed, one of the underlying reasons for the prevalence of this situation is the fact that Sri Lanka is a heavily indebted nation. The underlying argument is that, since we cannot in fact afford anything, as we have to pay our debts and interest, we cannot be bothered about the rights of people. This implies that unfair trials are a product of our destiny as a result of the economic conditions we face. If this situation brings about absurdities, there is nothing that the state can do about it. It is this that should be seriously addressed if the whole system is not to become a paradise for unscrupulous persons to make profit out of.
nalmen / February 26, 2020
lawyers like arabs live on dates
how can you deprive them of their food
only dictators like prabhakaran can fix a time limit for cases
perera / February 26, 2020
The economic argument trapped as a reason for the delays in disposal of justice is not an acceptable point in totto given that the administration of justice is meant to be achieved regardless of economic impact/ implications. The author’s reliance on the point is perhaps based upon the notion that there is absence of upholding the cherished rule of law in Sri Lanka. Dicey’s rule of law had three pillars (executive, legislature and judiciary) that should remain separate and the problem in Sri Lanka is that they do not remain separate hence the result of which is the absence of the rule of law.
I am sure everyone would agree with the author that unwillingness to embrace technology is one of the greatest reasons for delays in the disposal of justice by the courts. There is no system of proper case management and the cases are postponed for trivial reasons of a small sick note of the representing lawyer or someone’s someone had died etc. The lawyers themselves and me being one in fact refuse to accept speedy trial processes, adoption of video conferencing and adducing of witness evidence in digital format. I think a change of the mind-set is paramount because the way how we operate today is to approach the legal profession as an occupation with profit maximization in focus rather than, as a vocation to help administer justice in the society.
The West adopts in the legal profession a business man like approach with business models. It is a business to make money rather than a vocation to help parties to achieve justice and facilitate the operating arms to this endeavour. When legal profession is a business and profit is the ultimate goal no wonder the outcome is a delay in justice.
Craig / February 26, 2020
A very interesting article that provides vital information on how flawed judgments are handed out.
And Lawyers! What a horrible profession of men and women..
Rev Medalankara de Choppe / March 2, 2020
Craig, Please correct yourself. It is not only lawyers but also specialist doctors, safron clad monks all love DATES.
The safron clad guys really enjoy it
K.Anaga / February 26, 2020
Almost all the lawyers, when elevated to the ‘BENCH’ say that they will take measures to expedite matters. But the moment the sit on the bench their promises are forgotten like the politicians to their voters. After all, the Judges too were lawyers and they lived on ‘dates’. RecentllyJustice AHMD. Nawaz, during his ceremonial sitting, stated, as reported in the Sunday Times ” It is my resolve that the Bar must regain its pristine glory and I will take every step possible to encourage and preserve these traditions”. A sincere statement perhaps, but implementing it will be rather difficult, especially in today’s context, where JUDGES ARE BEING JUDGED BY TH PUBLIC, Thanks to Ranjan.
JD / February 26, 2020
I heard, there are 200, 000 cases lagging behind. I say, the govt should take steps to counter this. that is traffic offences, minor cases etc., should be fined and should be given times to pay. when they do not pay in time the fine should increase. They must have the option of challenging in courts. small offences, they should be asked to do community work such as helping renovating tanks and canals in the country or helping in a big army or specifically set up farm like place where they can earn the fine to pay.
Poor people need not be incarcerated instead they should be helped as they are doing wrong things because of lack of education and lack of resources.
Divorce cases like things, they can be send to counseling with buddhsit bhikkus as money can be a problem.
but, domestic violence, alcoholism and adultery like cases should be considered differently.
I do not think we can expect much from lawyers..
When lawyers join NGOs that is a different case.
Douglas / February 26, 2020
“MANIPULATION” is the name of the “GAME” both the “Prosecution” and the “Defence” deploy to subvert the Justice System as well as to deny “Justice”. Why go far? Just read through the proceedings of the latest case of “Mig Deal” involving the ex Ambassador to Russia, Udyanga Weeratunga. That inquiry proceedings showed how “Manipulations” are done by both the prosecution and the defence. In one of the recent cases of “Bribery” filed by the Bribery Commission, did not file the case with the required “Certificate” . Even in the case where the present President was charged for “Misappropriation” of funds of RDA to build a memorial for his parents, were “Dragged” from court to court by Lawyers, until the conclusion of the elections, after which the “Prosecution” cited a Section in the Constitution and “FREED” him. These are few of the latest “High Profile” cases where “Manipulations” are working and worked well in the discharge of Justice System. In yesterdays’s “SATANA” TV programe, Mr. Dew Gunasekera , taking personal responsibility, stated how an accused was “Convicted” even without the “Written” Judgement. He said, even after a long period of the conviction, STILL the judgement has not been written. In some cases, the prolonged period of conclusion has gone to such an extents beyond “Decades”, where even the “Accused” and the “Complainants” are no more among the living. Then how many cases are “PENDING” in Courts and for HOW LONG? This whole “Judiciary System” is in such a”MESS”, all authorities (Ministry, Law Enforcement Agencies, JSC, Bar etc) have conveniently let it “ROT and ROT”. No solution is found even now and in future.
K.Anaga / February 27, 2020
Recently one of my friends asked me as to why judges are supposed to be ‘On the Bench’? when in fact they sit in the chair and the litigants sit on the bench in the courtrooms. Can somebody clarify, please?
Dr. Errol Wirasinghe / February 27, 2020
Even honest young folk who enter the legal profession are corrupted by the Sr. lawyers, who tell them otherwise.
We are fighting a land case; now in its 24th yr. Friends shrug their shoulders and say… “this is normal”.
Don’t forget it is these same lawyers who become judges.
The fix is the moral upbringing of our babies.
But how can that happen…?
We tell a 5 yr. old to lie: “Tell everyone you live at your uncle’s home” (so we can get you into Royal College”)
Irrespective of your faith.. there will be a day of reckoning.
There is a judgment day!
rbh / February 27, 2020
When in law school, learning is about justice and equal rights, Amendment does not give you the right to commit a crime. When in practice the wining party is to change the law judge must be independent to interpret the law, not make the law. manipulate and falsify actual evidence. to delay the judgement
Spring Koha / March 1, 2020
The law has evolved to be a disgrace in Sri Lanka. Lawyers in Sri Lanka learn at a law college with an illustrious history, qualify, then promptly get infected with every unethical practice devised by those practising. None understand that ‘justice delayed is justice denied’. Judges play along happy to be part of the disgraceful practice. The reputation of Sri Lankan lawyers has travelled far and wide – a disgraceful bunch with few exceptions.