By Upatissa Pethiyagoda –

Dr. Upatissa Pethiyagoda

As one example, a man found guilty of murder happening in the latter part of 1999, was sentenced sometime in early 2025. Far be it for a mere layman as myself, to venture into fields that must have already been well trodden by vastly better qualified professionals.

“Justice delayed is justice denied,” is an oft quoted legal maxim, credited to William Gladstone, Prime Minister of England in the late 1800’s.

This is of the greatest relevance to us. Among all the extreme realities that confront us today, the nearly sole consolation is that there is a robust and reliable relief, offered by a fearless judiciary.

Any departure from this lofty stature, accorded to our Courts, ranging from the “lowest” legislature, to the all-powerful Supreme Court, is a grievous assault to all that we rely upon. Any departure from the trust that the Courts have earned through the ages, allows no compromise. In particular, in an era of increasing incidents of bullying by the political and administrative establishments, the judiciary offers victims their only refuge. If this bastion of protection of the citizens is breached, a hapless public will lose their entire lifeline of defense against an unkind and even criminally disorderly government.

There are many incidents where inefficient and inadequate entities, seek refuge in an arrogant impunity. That impunity (if deserved), is best exercised by not allowing the conditions that warrants its exercise. It is the bounden duty of the judiciary, to always ensure that the sacred trust reposed in it, will not ever be betrayed.

We are happy that there are several recent examples of heroism by members of our Supreme Court, in reminding the administration of where their boundaries of authority lie. It is satisfying that the Supreme Court faithfully, remains a worthy final instrument of justice available, since resort to the British Privy Council has ceased when we declared ourselves as a “republic.” This removed appeals to the UK’s Privy Council, as the final Court of resort. If I am not mistaken, the “Coup Trial” of 1971, (where the judgment of out apex court was reversed and the accused set free). It is unfair, (and perhaps not accurate), to blame the Courts for all delays. However, one may be excused for deploring the inordinate delay in the dispensation of justice.

As an example, one may have noticed that a few weeks ago, an accused was sentenced (to life imprisonment?), for a murder committed in 1999, that is (technically), in the last century. It is reported that inquiries regarding the suspicious circumstances surrounding the death of a prominent businessman occurred, no less than a year ago, have not yet been concluded.

The “Easter Sunday Tragedy” shook our collective conscience as never before. The nation emitted a sigh of relief when the Supreme Court, in a perhaps rare judgement, lived up to their truly significant stature. The Court imposed record fines, including upon the then President, who secured the jackpot for a heavy fine of a hundred million, and prescribed jail for non-payment, within a specified time. Has this been observed? If not, is this not recognizable as a “Contempt of Court”? If paid, would it be impolite to inquire how a life-time of a politician could generate such a treasure (or a stink)?

One cannot help but be amused by the procedure at the delivery of a positive death sentence, by turning off the fans in the Courthouse, and the judge donning black headgear, to pronounce with due solemnity, that the guilty “be hanged until death……………”, knowing full well that no death sentence has been carried out (I deliberately avoid the word “executed”), during past decades. Maybe the “system” demands such, but the process does seem somewhat like pantomime.

The laws delays have drawn the attention of both participants and the concerned authorities, who both must feel the need for drastic change/reform of this wasteful process. It is clear that more Courthouses, staff and typewriters, are not the likely remedy.

It seems that the legal systems practiced in different countries fall broadly into one of two types – the “inquisitorial” and the “adversarial. In my limited understanding, ours belongs to the “adversarial.” Here the Court has the role of a football referee, while the counsel for the parties argue on behalf of their respective clients. In the “inquisitorial,” the judge/s are spared the need to participate directly at all stages, some being somewhat mere formalities or rituals. It has to be for the experts to device the system best suited for our needs and customs. It could even be a “hybrid“, which combines the best of both systems.

It is not for the layman, (even if they imagine royal ancestry histories or omniscience) to suggest but not to ordain, what suits us as best. It is probable that the ‘pros and cons’ will then be identified by competent persons, to help advise on the best option. We would be deceiving ourselves to believe, that all is well with the existing arrangements. The present situation is atrociously wasteful of time and effort. Many could recall instances, where procedural needs have led to seemingly ridiculous delays. Thus, the relevant need is a system that is speedy but fair. Some of the archaic systems and practices (rituals) may be suitably trimmed, whilst retaining the two aims referred to above.

Another factor that needs attention, is the inconvenience caused to witnesses, who are required to attend on routine pre-trial dates, at which there presence is possibly not needed. Many postponements and delays are due to the multitude of documents required. This applies especially in civil actions, related to land or property disputes. When a judge goes on leaves, retires or transfers, part heard cases might necessitate a tedious repetition of pertinent actions. A system must be designed to overcome this, possibly by the trial judge being freed of other duties and distractions, to dispose of pending cases, and to ensure that his replacement colleague can perform substantive duties, with a clean slate.

It would not be within the competence of laymen (such as the writer), to go beyond penning some points, which with little doubt, would have already engaged the attention of competent professionals.

It is certain that ongoing re-trials and rectifying of old sins, will result in heavy congestion. Urgent reforms are necessary. Would trials-at-bar or court-martials as in the armed forces deserve to be evaluated as possible models.