21 September, 2020

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Justice System As A Threat To Democracy & Rule Of Law

By Basil Fernando

Basil Fernando

Basil Fernando

Deterioration Of The Legal Intellect (10): ‘Justice System’ as a threat to democracy and rule of law

In this article, the “justice system” refers to the police, the prosecution (Attorney General’s Department), and the judicial institutions, as separate entities and as a collective in their interactions with each other.

That these institutions suffered a great set back due to the operation of 1972 and 1978 Constitutions is unanimously acknowledged. The latest Constitutional Amendment, 19 A, is an attempt to address some aspects of this impasse by trying to depoliticise the appointments, promotions, transfers, and dismissals of officers in these institutions.

However, there are many other matters that are ailing the justice system, for which the 19th Amendment cannot provide answers.

For example, take the most important problem of Sri Lanka’s justice system: extreme delays in the delivery of services by each of these institutions. These delays result in the delivering of negative services instead of positive ones. Thus, the system contributes to creating injustices rather than justice.

Without resolving the problem of undue delay, no other efforts can remove the negative impact of the justice system. However, everyone seems to consider this as a problem that is impossible to undo. “Delays will always be there”, seems to the unwritten rule underlying Sri Lanka’s justice system. Mere verbal statements condemning delays, often made in response to public criticism, are purely ritualistic in nature and are not meant to be taken seriously.

Justice System remains within the primitive colonial mode

In the outside world, ideas of policing, prosecution, and judicial interventions, particularly in terms of criminal justice, have undergone enormous changes. The driving force of change has been the absorption of modern science and technology into justice functions.

A most significant change has been the manner in which evidence is gathered by the use of science and technology. From this point of view, the Sri Lankan system still remains in the bullock cart age.

The manner in which untrained policemen beat up suspects, day in day out, in all police station in Sri Lanka, with the view to collect oral evidence, and the way prosecutors and judges turn a blind eye to this obsolete and inhumane practice, is an adequate demonstration of the primitive nature of our entire system of criminal justice.

The result is the increase in crime across society and the spread of vigilante justice. The justice system has thus become a major cause for the demoralization of the people. Murderers, rapists, money swindlers, and other criminals, are quite happy and grateful to the justice system. The system is also good for the bad politicians.

The bad aspects of the system could constitute a litany. There is no need to reiterate the list, as everyone, including officials in the three branches of justice are fully aware of them. In fact, there is no one who says anything good about this system any more. Someone wrote recently that this is a “jack ass system”.

Mr. Eran Wickramaratne, currently Deputy Minister of High Ways and Investment Promotion, made the following observations last month during an interview with AHRC TV:

“… Going to the broader issue of the average person who goes into police station, the police then have to resolve some issues. And, historically, the police have been underfunded, and have not been properly remunerated. That’s true of public service generally, including the police. And the investigators are even less motivated. There is the whole issue of lack of training, because there is a lack of investment in training, a lack of investment in technology, in solving crimes and so forth. They would then resolve to means, which police forces in poorly funded situations all over to world resort to: try to solve crime by fabricating some charge—arresting the people who may or may not to be connected to the crime—and often using physical force and torture to get confessions. Now this has been documented for a period of time in Sri Lanka as a problem. It has been documented in the rest of the region, and this is something we need to change. While the immediate focus is on big issues of corruption, I think that this problem needs to be sorted once and for all.

This culture of treating people using torture or even psychological torture should come to a stop here. In a civilized society, every human being has dignity, every human being should be treated equally irrespective of their social background, irrespective of the educational status, irrespective their wealth, irrespective of whether they have political powers or not. Every individual must be that equal before the law. That’s the idea. That’s the goal, the direction that we should be travelling in. To do that, I don’t think there is one method or one solution. The law is one area, the budget and funding another major area. Earlier, I could give it as a suggestion; now I am part of government. Therefore I will certainly keep pressing for investment not just only for the police, but also for the judiciary process.”

Now, let us consider the way forward for the Sri Lankan justice system.

Three critical steps to create a modern justice system:

  1. Education and training of all stakeholders, police investigators, prosecutors, and judges on modern scientific methods of evidence collection and provision of technologies required for this purpose. This way, modern scientific out look can be engraved into everyone’s minds. This can be done in quite a short time, with the assistance of a few foreign experts if they are thought necessary. This will reduce costs, by cutting down heavy costs spent on unskilled labour at all levels. This can be made a permanent factor by changing legal education in all law faculties and law colleges, as well as in police and judicial training institutes.
  2. Some legal and procedural changes to remove existing practices that are primitive and obsolete, such as the use of torture and the reliance entirely on oral evidence.
  3. Basis day to hearings in criminal trials. This way a trial can usually be completed within a week. On some instances it may take a few days more.

In short, what is needed is to introduce the modern legal imagination and the intellect to Sri Lanka by taking a few practical steps and allocating the necessary funds. Such an investment will pay back a thousand fold, both in the areas of economic development and social development, thus providing a solid base for sustainable democracy and the rule of law. It will also remove the widespread basis day to daydemoralization among populations and instead implant pride about their functioning institutions of justice. Above all, women will benefit; they will finally be able to move about freely and without fear.

Completion of a criminal trial within a year within reach

In countries where modern justice systems are established, completion of a criminal trial within a year is now the rule. In Sri Lanka, when victims of crimes are strong enough not to discontinue their participation, a trial can go on even after 14 years.

The tactic of criminals that face victims who refuse to abandon participation is to get as many postponements as possible. Often, they do this on legal advice. When examining reasons for postponements, we find many instances where the lawyer for the accused is absent or is seeking a date on personal grounds. There are also references to judges being absent.

One of the terrible consequences of a delayed trial is that several judges hear parts of the same case, and the last one that writes the judgement hears only very little of the evidence or nothing at all. As a result, judges make errors about factual matters. In one case, the judge wrote that although the complainant says that the accused policemen hit him on the chin with his pistol, there is no evidence of any such injury, when, in fact, the JMO’s report clearly mentions the injury. Sometimes retrials are ordered by the court of appeal due to such errors by the trial judge, which means the whole process begins once again after 12 to 14 or more years.

If the few steps suggested in this article are followed, completion of a criminal trial within a year will be a reality in Sri Lanka soon.

Advantages of completing a criminal trial into serious crimes within a year

Some of the advantages of completing a criminal trial within a year are as follows:

  1. Bringing criminal justice from the arena of the absurd — where it operates presently — to the area of the rational.
  2. Bringing a sense of meaning and social relevance to the work of all stakeholders: complainants, accused, police investigators, judges, and the community at large.
  3. Creating the strongest deterrence against crime by providing sure and speedy punishment — a far superior deterrent in comparison to harsh punishment.
  4. Ending abusive practices arising out of delay in adjudication, currently widespread.
  5. Ushering radical limitations to corruption.
  6. Restoring and enhancing faith in the justice process and in reason.
  7. Creating greater social stability and social mobility.
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Latest comments

  • 1
    0

    It would make no difference as police have been manipulated by generations of corrupt politicians.
    Can you imagine the statue of the blind folded lady outside the old Bailey in London standing outside our high court?

  • 2
    1

    Writer speaking from a dream world.

  • 1
    0

    If litigants in court cases are allowed to conduct their own ‘prosecution’ and ‘defence’ arguments, many cases could be heard and verdict given in a fraction of the time it takes now, for the process.
    The judge can assist by directing the arguments, in accordance with the law.
    There is no law against this procedure.

  • 1
    0

    Do you all remember when one time Minister of Justice, Late Mr. Felix Dias Bandaranayeke tried to address this issue and wanted to bring in legislation to make it mandatory to dispose of the cases pending for decades, how all the “Black Coat” sahibs rose up against that move. That Minister being a lawyer knew how the “Black Coated Gentlemen” contract to appear in several courts at the same time on the same day and get a junior to appear and get postponements even without the knowledge of the clients. This is a remaining big problem even today. On top of it most of the “Black Coated Gentlemen” do not prepare for the cases coming up in courts, but simply appear or send a “Junior” to get a postponement. This is where the Judge has to step in and prevent any case going for postponement on several occasions. If the case is not being properly handled by the prosecution or the defense, just give a “warning” and an “ultimatum” and dispose of it forthwith. That is how the Justice Delayed became Justice Denied. If this “Functioning Mode” is put into motion by the Judges, we will see proper delivery of Justice to all concerned. So more than the Politician the very Commandants of the Justice System must act faithfully, professionally and sincerely to deliver the functions entrusted to them. This applies to any functioning system.

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