By 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.