By Mass L. Usuf –
President Mandela, referring to the South African legal system had said, “God’s Mill grinds slow they say, the pace of the South African Legal System puts even the God’s Mill to shame.” Is Sri Lanka any better?
All lawyers are aware that a party in default in a tenancy case can remain in possession of the house by prolonging the case for various reasons. This is between two individuals. It is also known that it takes on an average ten years for a criminal case to be concluded. That our legal system grind slowly is not a new discovery. This is a phenomenon that the Hon. Minister of Justice is aware of from his days in the Law College and as a legal practitioner.
Actions which are not normal like embezzlement of enormous amounts of State funds, money laundering, unjust personal enrichment, white collar crime, kidnapping, murder, organized and other sophisticated crimes are special situations. The government should marshal the resources necessary to implement and execute special situation transactions quickly, effectively and smoothly.
Common sense dictates that it is not prudent to burden an already overloaded court with crimes falling into these categories. It becomes the responsibility of the Minister of Justice to effectively and efficaciously respond to this exceptional circumstance.
At the ceremonial sitting of the Supreme Court to welcome the new Chief Justice Priyasath Dep, His Lordship said, among other things, “There is a need to increase the number of judges and develop the infrastructure by constructing more court houses. There is a backlog of cases in the Supreme Court and in the High Court. There is an urgent need to increase the number of Supreme Court and High Court Judges.
The court management system could be improved using modern technology. Computerisation, office automation and adopting electronic filing system will improve the court management. New methods should be adopted for court and case management. Countries like Singapore and Malaysia were able to reduce the backlog of cases by using modern technology and management systems. The judges should divest the administration functions to registrars or designated officers so that they will have more time for court work. The courts cannot function without an efficient and a competent staff. Supporting staff plays an important role in management of the courts. The quality and the standards of the supporting staff should be improved.”
The Attorney General’s department is no different. If they are short of staff and expertise provide these cadres. Why has the Justice Minister not taken steps expeditiously to remedy this situation? If he claims to have done something over the past two years, then it is clearly inadequate. Without gentlemanly admitting the inadequacy, he seems to evade responsibility by politicising the issue. He speaks about not taking political revenge or not interfering with the independence of the judiciary. Mr. Minister the public never asked you to take political revenge or interfere with the judiciary. What they clearly want is for you to do your job as Minister of Justice. What has improving the efficiency of the court system got to do with taking political revenge or with interference with the judiciary?
As a consequence of this failure, the people who are seeking justice for the atrocities, corruption and misappropriation of public funds by certain suspects are becoming restless. Is the government waiting until the people come out to the streets and cause havoc? Why is the Minister of Justice dilly dallying without creating or facilitating the environment for the justice system to work smoothly?
One of the Four Universal Principles of the rule of law as defined by the World Justice Project is :
“Accessible and Impartial Dispute Resolution: Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve”.
The alternatives are clear. The cases can be handled by:
- the present regular courts or,
- by exclusive courts within the existing structure or,
- by special courts.
It is very clear that the present regular courts cannot manage because of the backlog. To wait until facilities in the regular courts are improved and then handle these cases will kill more time. The public fears that during this period there could be a change of government and everything will go back to square one. This country will never rid itself of corruption. The first option is therefore not suitable. The possibility of exclusive courts within the existing hierarchy is also practical solution. Retired judges of high repute and independence can be mobilised along with all the necessary facilities.
Specialised Anti-Corruption Courts
Also, the establishment of a special court is an option. This is not an unknown path. If amendment to the Constitution is required so be it. Many countries around the world have established special courts to try cases of this nature. Countries that had specialised anti-corruption courts are: Afghanistan, Bangladesh, Botswana, Bulgaria, Burundi, Cameroon, Croatia, Indonesia, Kenya, Malaysia, Nepal, Pakistan, Palestine, the Philippines, Senegal, Slovakia, Uganda, Mexico, Tanzania, and Thailand. Even in neighbouring in the wake of Dalit agitation in Gujarat, the state government had announced setting up of 16 special courts across the state for the speedy trial of cases under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
With regard to the establishment of special courts, Nigerian Senator Emmanuel Anosike (Ex-federal legislator) made this valuable statement:
“Seriously, setting up special courts to try corruption-related cases is the only solution to the senseless level of corruption in Nigeria. We need to also ensure that anybody, who will serve as a judge in such courts, is seriously scrutinised. The judges must be people who are upright and can dispense justice without fear or favour”.
“All developed countries survive through the judiciary. When you know that you are corrupt and that if you are caught with evidence, you will go to prison, whether you are in the judiciary, the executive or the legislature, you will be forced to sit up. But when you know that you can manipulate your way through the judiciary, corruption of a more brazen kind will not only continue, but will thrive. We cannot forget the recent revelation that took place in the judiciary not too long ago. If we have a special court, it will go a long way to restore confidence to the system and whistle blowers will be emboldened to step up.”
It is immoral to continue accusing a person but not try him. He should be tried and either be exonerated or convicted by due process of law. The allegations of course relate to misappropriation of colossal amounts of state funds which belongs to the tax payer. That money includes the morsel of rice that a starving child has been deprived of. Recovering the misappropriated monies is a must as Sri Lanka needs cash. There are also the several crimes committed against persons. The families of these victims are waiting for justice. The prosecutorial process should not be politicised. This has nothing to do with political revenge but everything to do with justice and the fight against corruption.
The call to save the nation is being heard louder than ever, now.