By Basil Fernando –
This week there were a few public discussions on the issue of delayed justice. The ‘Satana’ Programme of Sirasa TV on 1st August 2017 was mainly focused on the issue of delay in justice.
On the other hand in another video broadcast on YouTube, a reputed lawyer Nagananda Kodituwakku, raised series of serious questions of the actual independence of the judiciary in Sri Lanka and on how the entire issue of corruption is associated with inability of the courts to deal with cases which are coming before them – due to the control exercised by the Executive and the Legislature.
At the debate in the ‘Satana’ Programme, answering a direct question posed to the Deputy Minister of Power and Renewable Energy Ajith P Perera, as to why some of the well-known cases of corruption pending in courts are not dealt with by a speedy process, the Deputy Minister answered that the Minister of Justice Wijeyadasa Rajapakshe was not willing to do so. He went on to say, that he has raised this issue at relevant forums of the Government, and that this is a serious issue, he is concerned with. He further said that some of the more prominent cases against the leading figures of the past regime could be heard before a Trial at Bar, in which case there was no possibility of postponements. He complained that the lawyers presently appearing in these cases asked for postponements for five or six months and this way these cases are being dragged on. According to him, it was the Minister of Justice who does not want to adopt a speedy method.
The questions were raised on the responsibility of the entire Cabinet for resolving the issue of delay of justice. The Deputy Minister, who said that both the President and the Prime Minister are concerned about the issue, however admitted that there is a serious problem. Other speakers pointed out to him that it is the will to take action on this matters, that is lacking. On other instances where the Government really wants to do certain things, these have been done irrespective of the objections of the relevant Ministers.
The very fact that the question of delay in justice being raised in a prominent public debate is a welcome change. It demonstrates that there is an acute dissatisfaction about delayed justice among the people in the country. It has become necessary for the politicians to respond to the issues despite of the fact that such responses still are weak and inadequate.
Meanwhile, the Minister of Justice has announced that steps are being taken to increase the number of High Court Judges from 75 to 85. While even such small change is to be appreciated, it must be said that increase of just ten members of the High Court is grossly inadequate.
In a previous article we have pointed out that if, the number of High Court Judges is doubled, delays could be significantly reduced. What is even more important is that the crime rate in Sri Lanka will go down very significantly. Of course, it is not only a matter of increasing the number of High Court judges but this would also require the increase of prosecutors and also criminal investigators.
Dealing with the problem of delay could be the single most radical step in Sri Lanka to resolve many of its problems such as the improvement of the security of the people and creation of an economic environment conducive to greater investment and developments.
The real issue is that there are some very fundamental reasons encouraging quite a significant section for the political leadership for not wanting such a change. It is this, that needs to be probed and understood, if this most required change is to be achieved.
Lawyer Nagananda Kodituwakku’s speech points to those who are opposed to the independence of the judiciary and against having a well-functioning judicial system. Those are the people, who are benefitting from extraordinary forms of corruption, that is possible in a country where the judicial system is ineffective; and others who oppose such a change are those who wish to abuse power and to benefit from such abuse. He referred to cases relating to the unwillingness of the Commission against Bribery and Corruption to investigate into allegations of engagement in corrupt practice among Members of Parliament who illegally sell the car permits given to them as MPs.
The Commission’s position earlier had been, that since these cars have been distributed as Government policy, the Commission will not investigate into such matters. However, later after a fundamental rights application has been filed, the Commission has promised to investigate into this matter. It has been discovered later that no such investigation has been initiated. Now a case calling for the courts to take action against the commission for the contempt of court has been filed.
He also points out to a serious constitutional issue arising from President J R Jayewardena obtaining approval from the judiciary for a law permitting defeated candidates at an election to be eligible for appointment as Members of Parliament. Whereas, the actual Bill voted in the Parliament had no provision for such appointments. This critique amounts to a serious revelation of corruption involving the former President and the judges who have signed that document.
He points out the real objection to the independence of the judiciary comes from the idea that the judiciary must act under the Executive and the Legislature. This implies that the judiciary should not be an independent arm of the state having the power to take action even against the Executive and the Legislature when there are violations of law.
That fact that debates on this issue have surfaced is quite a positive sign. Much of the future of the country will depend on how these debates are pursued and how ways can be found to defeat the forces that obstructs the independence of the judiciary. The delay of justice is merely a byproduct of the suppression of the independence of the judiciary in Sri Lanka.