28 October, 2021

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That Nonsense Called Criminal Justice

By Basil Fernando

Basil Fernando

A guy enters into two prisons with a gang of his friends. In one of the prisons he threatens a group of prisoners undergoing trial by placing his pistol on the forehead of one. He tells them what they should do about their case. Inside another prison he wants his friends and himself to take a look at the gallows, to please his appetite for fun in the evening….

The prison guards facilitate his entrance and watch this drama unfold with no attempt at to stop him or protect the prisoners.

Despite a national outcry about this incident (which has generated shock and anger), this guy is still quite free. He goes about without any hindrance attending to the affairs of State. He circulates in the company of the elite  who rule the country.

This guy’s behavior violates everything in the Penal Code, the Criminal Procedure Code and the many other laws for the administration of prisons and protection of prisoners.

These acts also affront the basic legal norm which is a foundation of all Law, including Criminal Law. Note, that the Courts are the guardians of the rights of people, particularly people in prison by Order of the Courts.

Why do all these law books matter? This is a far more disturbing question than even the acts of this guy. The Criminal Law of the Country is governed by the Penal Code and other statutes which create various offenses. The Criminal Procedure Code laid down rules about the investigations into these crimes and the manner in which those who are alleged to have committed crimes should be dealt with. In particular when there is sufficient evidence to demonstrate that the allegations against them appear to be true.

The entire Criminal Law Administration is an exercise in which certain acts are treated as punishable offenses. A crime therefore becomes a meaningless word if it is not followed by the necessary actions that the Law has laid down to be enforced when such a crime is reported. If a crime is committed, and it is reported, and the alleged criminal is left outside the Law, then that is not merely an abuse of power. It makes the whole process of declaring certain acts as crimes, a meaningless affair.

The above-mentioned incident is just one of such happenings. The Laws in the statute books relating to crimes are demonstratively being relegated into matters that are irrelevant. The list of such cases which have taken place in the not so distant past could fill up volumes. In all instances, the declarations of acts as crimes and the enforcement of those declarations or statutes have an enormous gap between them. It virtually conveys the message that under normal circumstances these Statutes do not matter. The appearance that these declarations about crimes through various statutes matter, is shown by a random example. It keeps up the show rather than create any convincing argument that there is a legal system that one needs to respect and fear. Each reader can imagine for his or herself the long list of things from among those matters that are reported in the public arena. The impression that the Criminal Law need not always be enforced is illustrated.

The question that is really worthwhile to ask is why such a situation has come about in Sri Lanka? There are various ways of approaching that question. One argument could be that defining crimes and punishing crimes is not really a worthwhile exercise. And, we Sri Lankans can develop a very unique method of not having any crimes being recognized within our country. That is not a question of a crime-free country! Rather, it is a country where nothing is considered a crime. Is that the ideal that the nation is pursuing?

Although, from the theoretical standpoint, such a situation can be described as absurd and ridiculous, the actual situation of the country comes very close to that. The only difference is that there are books which declare certain things as crimes. Therefore, abstractly speaking, Sri Lanka has not come to the point of openly declaring what its actual policy is regarding crimes. The gap between the concerted manner in which the crimes are not considered crimes and the declarations found through various Statutes, are going in two completely different directions.

This situation is like a new kind of philosophical form. What it says is:  ignore what is in the written laws as they are not the way by which we govern ourselves. Continuing, it says that we have, by our concrete practices, developed another set of principles. Our actual practices are based on those unwritten practices. It says that if you break these unwritten practices, you may be punished!

Thus the unwritten laws and unwritten practices have created another set of unwritten laws. BUT, these unwritten laws are rigorously enforced while the written laws are virtually ignored.

One may go on to ask, why has such a situation arisen? The answer once again is judged by the factual ways these problems are dealt with. These written laws are an obstacle to the manner in which we think progress should be achieved in the country. In other words, strict practice of Criminal Law and the laws of Criminal Procedure are seen as obstacles to the manner in which the exercise of power is being envisaged. That lawlessness is a better situation to achieve than that those in power want to achieve. Abiding by the written laws of the country, is in fact, a way of getting oneself undermined in the proper exercise of power. Power then virtually becomes the predominant philosophy relating to the Criminal Law in the land.

If one goes one step further and asks what justifies that kind of philosophy, then one gets a clearer view of many things that are practically taking place in the country. Obviously, the Law is an obstacle to corruption. But the prevailing underlying philosophy seems to be that allowing corruption is the way to accumulate wealth and create a group of wealthy people in the country. If the Law is strictly enforced, it will obstruct the merging of a group of very wealthy people. And, any obstruction to the emergence of a wealthy group of people by whatever means, is an obstruction against the development of an entrepreneur class in the country.

A country needs entrepreneurs. People who aspire to be entrepreneurs but who do not have adequate funding to exercise that capacity should be allowed to engage in whatever activities they wish. This is so they may accumulate wealth and become a wealthy class within the country. For example, those who are engaged in the drug trade quickly become extraordinarily rich. Being rich in that way cannot be engaged through normal enterprises of running a business and making a profit out of that business. But, the illegal drug trade and other businesses engaging in different fraudulent activities are breaking the rules relating to the operation of the Monetary System. They could create an extremely rich group of people within no time. Why then waste time? Why a strict enforcement of all these laws, when an absence of laws could create a richer class, who may become the entrepreneur’s in the country? That explains why the various offenses, created to prevent the abuse of the regular financial framework,  should be ignored. Rather, an approach where breaking of these regulations could better facilitate the enrichment of people. Of course, the benefit goes only to a few. Note bene, the very nature of those who access the facilities enable them to access financial resources belonging to the State.

Continuing in this vein, the Criminal Law depends on evidence. And evidence regarding financial and related matters are maintained through rigorous forms of legally enforceable regulations. Existence of such regulations or observance of such regulations creates the same obstacle to a quick accumulation of wealth. Therefore, there are means developed to ensure that either the records are not maintained or they could be tampered with. With the coming of computers and technological means of creating and maintaining records, there are new problems for easily erasing records. For that reason, the creation of these technological means of record keeping should be discouraged as much as possible. Recently, a former Health Minister and President of the country, Maithripala Sirisena in a televised interview stated the following. In his time as Minister of Health, foreign donations were received to create mechanisms of virtual facilities. To create such a record keeping system could support everyone dealing with making decisions regarding the purchase of pharmaceutical items et al. He stated that those working in collaboration with some pharmaceutical enterprises obstructed the creation of such a system. Now, in recent times, the public debate is about erasing already existing reports particularly related to the Covid-19 issues regarding various aspects of trade of medical items.

These things are discussed as scandals, whether it be the guy breaking into jails, threatening prisoners, or other matters.  It includes dealing with the sophisticated, computerized system of maintaining  records. It is the same reasoning that runs throughout. The whole idea of creating crimes in order to prevent certain acts is not a suitable method for the country pursuing certain economic models at the present time.

Nevertheless, the facade of Criminal Law will continue unabated. Now and then a few cases will be highlighted. And in that process there will be all sorts of ways to get out of criminal liability even after it has become viable. For example, inducements that have been served on an accused could be withdrawn purely for political or similar reasons, not considered valid under normal laws. Consider this! Very bad investigations could be carried out. Even if the case is brought to Court, ultimately the wording could be set that the case was not proved due to lack of evidence. Evidence that has not been professionally collected and presented to the Courts then becomes the justification for exonerating the alleged criminals. It could even go further. Even when there is evidence, pressure could be put on the Prosecutors to drop the charges. If worse comes to worse, and the Court convicts the person, the President could intervene at that stage and pardon the person.

AT THE END, CRIMINAL JUSTICE HAS BECOME A ZERO-GAME.

Despite the media reporting scandals over and over and over again, the same process goes on because this is not an accident. It is the pursuit of a particular form of Governance that has become the bedrock foundation of Criminal Justice in Sri Lanka.

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Latest comments

  • 3
    4

    Aanduwa is saying Aava Kuzhu is responsible the unlimited crimes committed against women and children in North. About two years ago the gang membership was estimated by media to be 2000. No one from this gang is prosecuted. It was said a year ago a grand birthday party was celebrated by the gang in a isolated island. UNP Aanduwa forced Vijayakala Maheswaran to lose her children and woman welfare state minister post because of her comment on Aanduwa’s attitude of not prosecuting the criminals. In missing persons cases and Ezhilan’s case, judges many times asked to hand over the list of arrested and rehabilitated Tamil youths’ list. Aanduwa said it does not have one like that. But without explanation many times it arrested many youths. Then it declared that they all are arrested and rehabilitated persons. Yesterday Rapist Police arrested four youths in Gampaha. It immediately declared they all are Aava Kuzhu members and at the same time, arrested and rehabilitated youths. Yet the oldest in this is 27!. Interestingly the rapist police never arrest anyone of these Aava members in the north but caught them as soon as they came to Gampaha. It is same the case in the hospital bombing framing case. Thus Aanduwa is denying the youth working outside of North. It is an unbearable pain and torture for Tamils to stay with the Genocide Aanduwa’s government, without any law-and-order ruling.

  • 4
    0

    See the interview by “Justice” Minister on Page 25 of the DM today. He condones two “injustices”.
    1. Pardon for Duminda. On his basis of argument that judges were apparently corrupt, then it follows that Ranjan R was correct in calling the judiciary as corrupt and he should have been pardoned at the same time.
    2. Ratwatte. He talks of various ‘inquiries’ by HRC & VWP Authority but gives minimum coverage to real Law Enforcement by Police and says CIID is “investigating” but says nothing that the perpetrator ha not been interrogated by the CID as yet. (Waiting for accusers to say something first so as to formulate R’s reply.) He further says R was the first to resign (really half resign as he still is a Minister) but forgets very good examples of Gamini Jayasuriya, MDH Jayawardena & Dr.Neville Fernando, even resigning as MP.
    This shows how weak our Media Investigative Journos are in follow up questions – they come with standard questions presumably even leaked to one being interviewed. Otherwise these rascal politicos will not face an interview or a person like Shakur or Tim Sebastian.

  • 3
    0

    Considering all that the writer has showcased, where crimes have not been investigated or evidence properly gathered or cases properly heard in court or appropriate judgments delivered, one can begin to realize that this is an environment deliberately created to “normalise” injustice. No internal mechanisms, be it the courts, the criminal justice system, law enforcement etc can deliver proper justice. Therefore, the people must make representations to external parties to compel the ruling class to comply with the law of the land or be punished. Sanctions against the people will not work. Direct force should be applied to protect the people from their oppressors.

  • 6
    0

    I think in both Duminda Silva case and Ranjan Ramanayake case our judiciary went wrong, showing that in political matters perception distorts them like most common people.

    IN the Duminda matter it was obvious that the guy was a bad man and on that day he was behaving very badly armed, drunk, violent etc.
    But the question is ,did he have the motive to kill Baratha, who himself was not an ideal man.The confrontation was not planned.
    At the time of the violent confrontation, Duminda was already down with injuries , when Baratha was shot. A case must be proved beyond reasonable doubt.
    I think this is a case for manslaughter and not murder. Perhaps because of his bad reputation and bad behaviour Duminda went in for murder.

    In Ranjan Ramanayke matter again a foolish , uneducated but a outspoken man was punished too harshly.
    In a democracy the right to criticize ( even unfairly) is fundamental. A warning , or a fine would have been sufficient, would have enhanced the reputation of the judiciary
    . Judges whom he criticized punished him !
    It seems no institution in this country can rise above the under-development, pettiness and the limitations of the larger society.

  • 1
    0

    Dear Author.
    You mention nonsense – and in matters of Law and Justice.
    Read the frolics of AG and Ch/PSC. Sri Lanka “Justice” at its best in DM TODAY..
    https://www.dailymirror.lk/expose/333
    Of course the above will remain an expose and nothing more.
    Has the Opposition, Justice Minister, Media and Corruption watchdogs EVER taken up this type of abuse of power – no they only wait for their turn for the spoon to serve themselves.

  • 0
    0

    Do they really neede a penal code to SL. This penal code is an obstruction to out democrazy and delays dispensation of justice. Law should be reformed fo that president has a panel where he listens to the case and pass judgement on the spot and no appeal allowed.

  • 2
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    In Ranjan Ramanayake case, it is admitted that the utterances were by a naivet’e and expressed in good faith but in not so discrete language and circumstance. However the general public and the enlightened members of the society approved and applauded Ranjan’s reference to the flaws in our justice system specially when it comes to the aspect of integrity of judges. Then we witnessed the proverbial “empire strikes back” theory when the Supreme court slapped a four year sentence on the man. Right thinking people were shocked at the disproportionate sentence meted out on Ranjan R. This was mainly owing to a Judge in that panel which heard the contempt of court case (now retired) who thinks that he was carrying the entire burden of safeguarding the ” good name” of the judiciary. It was a travesty of justice. Does anyone think that judges in Srilanka are paragons of virtue that they are above criticism? Standards in the judiciary have come down so drastically that no one gives a tuppence for judges’ opinions. That is because it is public secret judges pull for the Rajapaksa regime. Summoning all judges in the country on zoom device and intimidating them to give orders in favour of the State is the latest feather in the cap of the judiciary.

  • 0
    0

    When Adolf Hitler became Chancellor in 1933 he ruled absolutely until his death in 1945. The signature hallmark of his executive office was a power that usurped the Parliament and the Judiciary. No one dared to question him. Is that situation now mirrored in Sri Lanka? Does Executive power now transcend the powers of the Parliament and the Judiciary. If the answer is yes then the country has a Fascist system of government where fear and intimidation has crept into every facet of life. Such governments don’t end well as was the case with Hitler, Mussolini, Pol Pot, Ceaușescu, Idi Amin and so many others but while they remain in power corruption reigns supreme. They amass fortunes and hide the money overseas. They surround themselves with thugs and assassins who do their bidding. Is this Sri Lanka today? Only the people can remove such a government and only the people can restore and strengthen the true democratic fabric of government.

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