22 May, 2022


Sense & Nonsense On Judicial Matters

By Basil Fernando

Basil Fernando

Basil Fernando

A comment on the approved UN Human Rights Council Resolution on Sri Lanka

Now that the UN Resolution on promoting Reconciliation, Accountability and Human Rights in Sri Lanka has been approved by the Human Rights Council, a new page opens up with possibilities of looking into and dealing with grave problems that have crippled the entire justice system in Sri Lanka for several decades. What is meant by the ‘entire justice system’ includes the investigative branches into crimes, the prosecuting agency which is the Attorney General’s Department and also the judiciary. The crisis enveloping these institutions has a direct bearing on the successful implementation of the Resolution.

From that overall point of view, the challenges that the implementation of the Resolution will face within the Sri Lankan context are many – even if we take for granted, that the present Government may have the political will to implement the Resolution which it co-sponsored. One of the major areas of challenge is that the Sri Lankan justice system has been subverted in such a manner as would appear to be nonsensical to anyone who has a serious interest in justice. We may enumerate few such instances to illustrate this problem.

An average judge at any level, a prosecutor, a lawyer, and a criminal investigator in Sri Lanka is seldom outraged by the nonsensical if not absurd delays that inevitably attends the hearing of a case, even if this involves a grave crime. A Psychiatrist who has been attending Courts, to give evidence in many cases, sarcastically mentioned in a televised interview recently, that in one of the child sexual abuse cases, in which he is an expert witness that the incident happened when the child was an 8-year-old. Now this child is a 20-year-old adult, but the case is still being heard in the Courts. There are other cases where a rape incident which took place some 14 years ago is still being heard in the High Court. When the trial is finally scheduled to be over, if the accused is convicted, there will certainly be an appeal against the verdict, which will also take many more years to complete. In such a sea of apathy and absurdity, how could the trials for extremely serious crimes mentioned in the Investigative Report of the Office of the High Commissioner for Human Rights, be tried? Will a local judge, who may sit with other judges to hear such a trial, have a serious interest in speedy justice? When speedy justice is a concept that does not exist within the local judicial culture, what basis is there to expect that things will be different regarding these trials? Of course, one way out is, to have a farce, like the Criminal Justice Commission on Sri Lanka which heard the case relating to the 1971 JVP ( JanathaVimukthiPeramuna) uprising. Though judges sat on that Commission, the Commission was not a Court of law, and was not bound to follow due process under the legal procedure of Sri Lanka. Naturally, the Commission was severely condemned internationally. The purpose of that Commission was to arrive at some kind of a political solution, by the appearance of a trial.

If all the trials relating to allegations put forward by the OHCHR Report is to be examined merely by some special courts, how many such special courts would be needed to hear all these cases? In any case, would not the rest of the litigants in Sri Lanka who have to move in a sea of delay, have a right to protest against such special courts which will guarantee a different speed? This certainly is an area that the local and international experts talking about the implementation of this resolution would have to deal with.

Another example of an absurdity would be, the issue relating to torture and ill-treatment, extra judicial executions, and arbitrary deprivation of liberties, under which headings many of the allegations in the OCHR reports are listed. And what about the crimes under these same headings, but which fall outside specific incidents listed in the report? For example there is the CAT (Convention against Torture) Act No 22 of 1994, which has defined the offence of torture and ill-treatment, as a crime. Complaints made by ordinary citizens, of torture and ill-treatment have to be counted in thousands. Torture takes place every day, at every police station, and many officers vow that they cannot do without it. When such a widespread practice goes on, will not the victims of those crimes, have a right to complain that in fact, no justice is being done to them, while there are special trials for these special cases? Their anger will not be for the victims of these special cases being granted justice. Their grievance will be that they are not being treated equally.

The same argument would go regarding endless cases of rape and sexual abuse, child sexual abuse, and extra judicial executions. I have not mentioned here the question of enforced disappearances that have taken place on a very large scale in the past as enforced disappearances is not yet an offence in Sri Lanka. However once it will be made an offence, the family members who have lost their loved ones in previous cases of disappearances, are likely to be aggrieved of their inability to receive justice. The argument against them would be that about the inability to prosecute retrospectively. That in any case, would be the situation even regarding the cases mentioned in the OHCHR Report.

A much longer list of such absurdities could be enumerated and would certainly come up in the years to come when the Resolution is being implemented.

A further issue is regarding, the selections of outsiders to the proposed Hybrid Courts. There have been some Sri Lankan judges who in the recent times have been sitting in international tribunals hearing war crimes. These judges are not reputed as being impartial in their own country. In fact, some of them were as politically compromised as many others during the sad period when the executive presidential system determined the scope of justice in Sri Lanka. Naturally, Sri Lankans would want to have a guarantee that no such persons would be appointed from outside, to sit in their Courts.

If we are to take for granted that those who would come as expert investigators, prosecutors, and judges, would be those of integrity, and competence then still, there will be further problems. For example, how would a judge who does not tolerate scandalous delays sit together with a local judge who sees no problems with such delay?

The problem of the deep collapse of the justice institutions in Sri Lanka, would need to be addressed if a credible outcome is to emerge, from implementation of this Resolution. Mere arrival of experts alone would not suffice.

The purpose of this article is to raise the type of discussions on fundamentals and deeper questions of justice that beset Sri Lanka, such discussions should accompany any serious discourse on justice, as envisaged in the co-sponsored Resolution.

What the co-sponsored Resolution offers to Sri Lanka, is a great opportunity to deal with the ‘justice impasse’ that is troubling all people of Sri Lanka. However, that great opportunity would be missed if a serious discourse on the problems besetting the totality of the justice system is not seriously and thoroughly discussed at this early stage. On the other hand, if these matters are discussed and addressed, much of the future criticisms that may arise, regarding the actual implementation of the recommendations in this UN Resolution could be avoided.

Print Friendly, PDF & Email

Latest comments

  • 3

    Some travel long distance with great difficulty. The case is heard for 5 mins and then adjourned for another week. There must be a way to expedite things.

    There has to be a process that completely overturns the system and implant it with a better one.

    Gota has done it twice turning around the defense and the Colombo city. As a systems man he can make a difference here too Im sure.

    • 6

      “”As a systems man he can””

      Computer Jilmart!!

      You mean hambantota polmudda system like the rice godown?

      All systems are managed by software and your godfather Hindian are the suppliers of this service to the service sector of many European nations and america in particular.

      Baldie, learn to live on Hindian poo seepage

  • 5

    Sir, You have presented a clear mind reading of us…the issue here is that policy makers and politicians are one side and intellectuals and concerns are another side ..when these meet together and work only for nation and future generation the good things will happen ….let pray Allah…

  • 4

    This is a big racket involving lawyers and judges. They get postponements after charging the person on whom they appear and judges given in without a hum because he is also lawyer. In the USA, cases are disposed after three months maximum. Since the majority in the parliament are also lawyers they do not talk about it. Those accused in Chandrika’s bomb case got convicted after 18 years! Today the judicial system is rotten to the core and no one is doing anything about it. How can the international community accept such a corrupt and utterly inefficient system? Justice delayed and justice not done! yet how many worry about this.

    • 3

      “”In the USA, cases are disposed after three months maximum. “”

      so they shoot folk like dear in a park?? and yesterday’s random shooting of 14.

      3 months is not true not feasible in murder cases which take 2 years even in the UK.Even tribunals for the poor take nothing less than an year.

      Just because you now wear suit pant like Ken_kakka You can never implant western system into the sarema system while you are holding sarema ba**s.
      Yakkos need to learn `reasonableness` in practice and deed in the west to be human before stepping on to the gas.

      Passa got over 50% of Sinhalese vote so you must like his style of dictatorship where he makes slaves of the people he does not like- totally lefty culture not western. Neither do the majority of the Sinhalese want the IC intervention but want just to export to IC.

      Learn hindi your master will whisper what to do.

  • 4

    We want justice for the Aluthgama/Beruwela incidents and its victims with all what happened, what caused it and those behind it exposed for the world to read just as in this case, otherwise we will carry with us the hurt and anger for the rest of our lives.

  • 1

    Here comes another vulture.

    • 0

      Why? Is Muslim life so cheap that everything that happened must just be forgotten and swept under the carpet, and the criminals allowed to go Scott free? Just to remind you, this is not a case of vultures and carrion, but accountability and justice. If the Tamils are finally going to have justice served, then why not the same for Muslims, for all that they went through at the hands of those monks gone mad. The Sinhalese government did not lift a finger to help the Muslims instead aided and abetted the wanton destruction just similar to those unlawful actions they committed, now referred to as HR violations at the last stages of the LTTE conflict. We all know for fact that actions of Sinhala biased governments were the main causes to create all of the Tamil political parties to fight for Ealam or separate land.

      • 2

        “”If the Tamils are finally going to have justice served, then why not the same for Muslims, for all that they went through at the hands of those monks gone mad. “”

        Whats up toot and hoot??

        Domino Effect is a fallacy in human affairs!
        The greatest wisdom seems like stupidity.

        You can’t nick any stones to cross the river as it was a made by hindia affair all along therefore the calamity- limbo rock.

  • 0

    The war was over and the kind was elated, more so that he would be the unchallenged emperor till he dies. In the euphoria, he did pay attention or was not bothered to listen to his own words, his own committment. That was more than enough for SG Ban to hold him by the balls.

    The narrative was superfluous but Mahinda Samarasinghe was ecstatic as if he had an orgasm. He had briefed, aka lied to the UNHRC by giving a shopping list that the stakeholders can purchase. When the stakeholders wanted to effect their purchase, the shelves were empty. It was then they realised that the good were never there to deliver in the first place.

    Had Ranil and Maithiri unwittingly shot themselves in the foot when they insisted on a local investigation, merely to placate the majority Sinhalese? The intent of a man cannot be tried because even the devil knows not the intent of a man. Are the Americans smiling that they have strapped Sri lanka to a corner?

    In the short term, the govt may feel the burden is off their back but the vengeance with which it will surface to be the nagging thorn is something they should have learned from their predecessor. The missiles came non-stop and whatever tricks MR tried to ward them off did not materialise. He, in fact, tried every trick in his bag but has been left a grudging man with his fortunes devastated even earlier than anticipated by his own astrologer.

    The justice and enforcement agencies in SL have long been reputed to face the brunt of accusations of plenty. I wonder how the present govt is going to achieve the herculean task of reforming the structure. Again, if if the structure problems are addressed, then what about the people who man them? It will be wishful thinking that everything will fall in place and that it will able to meet the task. The culture and history does not support such an endeavour. Is it a curse that the dirty linen in which SL has bedded itself on will follow forever?

  • 1

    This is a big racket involving lawyers and judges.
    Oh no. Basil Fernando is also a lawyer………….

    Where is he and what is he doing and what & where?
    Instead of preaching he must put things right as the YAHAPALANAYA has arrived.

    Where is he ??????? In the Vatican closet?

    • 1

      thondamanny, you don’t need to ask these questions. Basil is living in his ivory tower, safe and sound in Hong Kong. If he was really committed to Sri Lanka he would give up all his benefits and return. Oh, wait, I forgot, he’s still on the UNP hit list…….

  • 3

    Judges in Sri Lanka have been legal eunuchs. Under the law, a judge can take cognizance of any legality on his own. Thousands were being killed and no judge stirred. 70,000 young Sinhalese were brutally murdered without a murmur from the judges asking why no coroners reports were not made as to these killings. How come these legal eunuchs sit on international courts? Their credibility has been lost. This domestic tribunal is a farce that will pull the wool over the eyes of people. But, the Tamil diaspora will go on shouting, this time around hopefully to ask for an inquiry into the killing of the Sinhalese youth as well as it was an army that had trained in brutality by killing them that was unleashed on the Tamils. There must be a revamp of the judiciary but to be peopled by whom? Those trained in the Law College, itself a den of corruption? This is the problem for the country. There is so much to be washed away but we do not have anyone to do that task as one corrupt administration has been replaced by another. The chance for a hybrid tribunal that could have made a beginning also has now been stifled. It is truly depressing for the country.

    • 4

      its all planned like the donkey do.
      So the chief justice is now a tamil for them to harp on- cart before the horse (very english in practice; bad logic)
      Even in the UK the judges are appointed by the elected chancellor.
      When Blair went for the stupid war no judge said anything.

      The question: getting a paycheck or getting results?

      The Boss is always right and they have a family to feed too.
      You fight because you have no idea of `reasonableness` – that is the root cause.
      In the UK reasonablness (law) was lost once because of a stupid aristocrat and judges wife (barrister) (who ruled against a rich person who was technically right in favour of public) but they did the patches and its there once again. That is democracy at its vibrant best.

      Don’t hope for much and get nothing.
      Equality of opportunity is utopia even in the west

  • 1

    Do you remember what happened when Late Minister of Justice Mr. Felix Dias Bandaranayake attempted to introduce legislation to regularize the process of court cases to expedite hearings and make conclusions? All the “Black Coat” men and women making a living on those cases stood up against it and that attempt was nipped in the bud. This is another area no “Authority” dare step in; if even an attempt is made it would flare up a “Huge Fire”.

  • 4

    “”The purpose of this article is to raise the type of discussions on fundamentals and deeper questions of justice that beset Sri Lanka, such discussions should accompany any serious discourse on justice, as envisaged in the co-sponsored Resolution.””

    Even the western public want war efforts to be more logical but human affairs have never been such except when forced by dictatorships.

    Its still a half and half world-
    The presenters of resolution from `pirate stock` have bad logic to their credit for over 200 years. the islands inhabitants too come from piracy.
    The other half is the parasite dictators who enslave the population.

    So there is nothing much to choose from except the `Buruva` will have his way over again leaving an unbearable stench.

    Even in the west folk don’t like order as it is for ants but the double speak english pirates like it and that is the irony.

  • 0

    The International Judges and Technical Experts are going to have a comedy fest when they quickly realise how everybody in Sri Lankan institutions can be bought.

    They will further crack their ribs laughing at the laziness and outright stupidity of Sri Lankan Lawyers and Judges and the absolute shambles that is our Justice system.

    We Sri Lankans are going to have to get used to (especially in the next couple of years) Highly educated foreigners laughing at us!

    And who can blame them 1948 until now, and we still make a pigs ear of Governing ourselves. No wonder we need foreign experts.

  • 1

    Sri Lanka knows, Many other countries in the world knows, US acknowledges it that there many NGOs who are doing the job that the west wants.

    So, Basil Fernando is one such NGO.

    Highway robbers ear money in a more accountable, honest and responsible way. They have lot of integrity.

    • 0

      Very seriously,
      You are suffering from
      Obnoxious Personality Disorder.
      please admit self at Angoda soon.

Leave A Comment

Comments should not exceed 200 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically disabled after 5 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.