14 August, 2020

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The Laws Delays & Judicial Reform

By Upatissa Pethiyagoda

Dr. Upatissa Pethiyagoda

The fact that our legal apparatus is in need of radical reform, is universally accepted. I was astonished to read recently, that in a case of a murder committed in 1999, the accused was sentenced in 2019! This, was in a criminal case. The situation In respect of civil suits is much, much worse. In the case of the assassination of Hon. Lakshman Kadirgamar, a man alleged to been very intimately connected to this brutal murder was reported to have been tracked and tried, and that too in Germany, a few weeks ago. The murder was in August 2005, and felled one of our greatest sons in recent history! What then can poor Punchi Singho expect? We are told that “the sins of the father cannot be visited upon the son”. If the text is modified to “grand- son,” we could still be in breach.

Mere construction of more Law Courts, appointing more judges, PC’s, stenographers, peons  and Court- House gardeners is not going to help much. The whole system has to be radically changed.  I understand that there are two types of legal process – inquisitorial and adversarial. In the former, the Court or its nominees are empowered to investigate the facts of the case, while in the latter, the Court functions as an impartial referee while the Counsel  of the two sides present their respective cases. We follow the latter (Deriving from Roman Dutch Law), while some others, (e.g France, Italy etc.) have evolved their own systems. This option may be considered, as we are now an independent Republic and thus empowered to do so in the Public Interest. The astonishing postponement of proceedings for the most trivial reasons, establishes the reality of avoidable delay. In one of our good-natured chats with Hon. Lakshman Kadiri, I observed (cleverly, I assumed) that our Courts are not dispensing justice but are selling Law. This drew the typical response “My dear chap, whatever gave you the impression that the Courts are in the business of dispensing justice?” This, delivered with that impressive drawl and the charming “rolling” of words closed that particular chapter.

The Courts must spend a lot of time adjudicating on matters arising from an inability (or unwillingness) to understand English (or Sinhala) by even the highest of the land. If the job of the Courts is merely to see whether a particular action is in accord with the words rather than the spirit, then a good Computer Programme is all that is needed. Why one asks, are the Judges so-called if there is no need for a “human” and therefore, subjective element? Each time that some skullduggery is to be covered, ridiculous “damages” to be awarded, a sentence of death passed, knowing full well that it will never be carried out, looks like theatre. Several recent occurrences threaten the public esteem in which the apparatus of justice is still held. 

There are still more incidents which are worrying. The speed (or lack thereof ) of justice does not reflect well. The poor percentage of successful prosecution in criminal cases, worryingly suggests that this sector too is corrupted. It is no secret that bribes and deliberately falsified ”evidence”, long dates, privileged judgements, disproportionate  sentences, unwise pardons and many other instances  challenge any claim that “all are equal before the law”  Where else in the World can a Chief Justice (now retired) admit partiality, another sit beside a Presidential candidate  on election night, a judge leaping  off a balcony when accused of rape, a Magistrate demanding and getting sexual bribes from poor litigants and desecrating his “Chambers” for such purpose, Presidential pardon for the wife of no less  than a “Minister of Christian Affairs” while serving a death sentence for murder, a Chief Justice impeached by Parliament for a judgment politically unpalatable, doubtful “recusements” by Judges, the list could go on and on. Maybe that some of these happenings are no more than malicious and unsubstantiated allegations. Even if so, they make one uneasy as abuses of judicial impunity and call for robust rejection by the authorities empowered to do so. While at it, maybe the stench emanating from gossip surrounding the fate of the three dozen or so top-flight Jaguars imported during the tenure of the Government, pre-Yahapalana may also warrant scrutiny.

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Latest comments

  • 3
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    as lk said courts dispense law not justice

  • 2
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    We have only 80 High Court judges and 250 Magistrates. The numbers should be increased together support staff.

    Very little technology has been embraced over the years and needs a radical transformation. In fact primitive.

    There should be specific time periods to conclude cases such as 3-5 years depending on circumstances.

    Enough lawyers in the country with almost 700 passing out every year.

  • 1
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    I do not know with what mindset Dr. Pethiagoda is writing this. At Present, I heard, some Judges are very unmotivated in what they do. They have lot of files on their tables, probably which they did not attend for months. I think that is something common in the whole govt system. More Courts and Judges are needed to alleviate the sufferings of those litigants who attended the courts once a year or so for decades.
    It says, the media criticizing the Judiciary is part of the HYBRID WAR. It looks probably, the other side engages in the war implement this policy in every country that they wage war in.
    I think, Sri Lanka had a good court system long ago, SWRD Bandaranaike assassination was the point where it made the change. Two Bhikkus were accused for it. It is public knowledge that One Bhikku while in the prison threatened the authority saying HE WOULD EXPOSE EVERY THING IF HE WAS NOT RELEASED. I l heard, one GAMINI KOREA, Ozzi korwa’s brother, was the killer. It is again public knowledge that Ozzi korea had a party inthat night because of this assasination. No one questions these things.
    So, the repairs to the system is some thing that must be carried out with lot of Caution.

  • 0
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    Something to ponder, Prabaharan was very efficient in maintaining law and order. There was lot of speed in dispensing justice. The people approved it. May be worth studying them.

  • 0
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    Justice delayed is justice denied. Court cases drag on because lawyers and judges work in unison to postpone cases for flimsy reasons. Lawyers want the cases drag on to get their share of the loot from the litigants. AS one judge said “lawyers are like arabs, they love dates”

    Another reason is the inordinate delays at the attorney generals department where thousands of files are gathering dust to be attended. At least I know of a ragging case at Peradeniya where the AG has still to file the indictments after nearly four years after the incident. Politically hot cases are their priority.

  • 0
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    A judicial process set up by the victor cannot deliver justice for all. As international supporters of human rights and humanitarian law, and in solidarity with all the communities of Sri Lanka, we call on the international community to ensure that Sri Lanka is on a trajectory towards genuine justice and reconciliation.

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