By Upatissa Pethiyagoda –

Dr. Upatissa Pethiyagoda

“Where ignorance is bliss, ‘tis folly to be wise”, “it is better to keep one’s mouth shut and be thought a fool, than to open it and provide the proof” “Fools rush in where angels fear to tread.” Despite being thus thrice warned, a TV programme that I have just watched, prompts me to comment on the subject of  “The Laws Delays.”

The number of cases being heard or awaiting attention in our Judicial System, is frighteningly huge, (more than 20,000?) and the number of accused in detention is also scandalous. And many we hear, are in for failure to find sureties for bail determinations. Similarly, many are in for drug related offenses (minor peddlers or addicts). Drug addicts deserve counselling and rehabilitation more than incarceration.

In addition to the inconvenience inflicted on the inmates, the State also spends much in feeding, guarding and housing detainees. The need for reform of the judicial system to obviate procedural delays all along the line, is an urgent need. The mere appointment of more judges, increasing court rooms and strengthening infrastructure facilities, alone will not suffice. The processes will need to be speeded up. It goes without saying that any changes or reforms should not compromise the dispensation of justice. In fact, changes must improve the quality of judicial process, and re-inforce the sanctity and respect for it. Some months ago, it was reported that sentence was for a murder committed in 1999 – one may cynically say “in the last century”! One can only hope that age has not dulled the accused’s recall of his ghastly misdeed. As the cliché goes, “Justice delayed is justice denied”.

The major sticking points against speedy process, stem from seemingly ritualistic formalities. Before a case actually proceeds to trial, much time (of officials, counsel, litigants and witnesses) is needlessly spent on presenting peripherally concerned documents and records – all of which could be procured pre-trial. Long dates (suggestive of crowded diaries), not seldom, straddle political events (e.g Elections) which demonstrably impinge on process and fate. Suspicion of ulterior considerations or influences are to be expected.

There are at least two respects by which the integrity and spirit of the Law could be challenged. Firstly, the outcome of a trial can be distorted either by contrived ambiguity in framing of the law, clumsy wording or fabrication of evidence, to result in either escape of a culprit or penalizing of an innocent. The forensic skill of counsel may determine which outcome. The financial ability to secure such service, is inordinately influential in formulating the verdict.

There are apparently, two major systems followed in different contexts – the “adversarial” and the “inquisitorial.” In the adversarial system, each step in adjudication is subject to the Court’s overview and satisfaction. Supporting documents, evidence from witnesses (where required), cross examinations, arguments, search of relevant jurisprudence, case priorities, addresses of Counsel, judge’s directions to the jury and finally (?) the verdict. All of this process, punctuated by interventions of Court recesses, medical status of the key figures, transfers of judges and “Acts of God” could, as in the case mentioned above, well absorb a quarter of a century of diligent effort. In the “inquisitorial” system, the Court or part of it is concerned with examining the facts of the case, while in the “adversarial” the Court acts as a referee between the contending Counsel. By definition, ours would be the “adversarial” system.

It has to be up to the professionals to determine what suits us best. Perhaps a “hybrid” system that embodies the better features of both, would be the ideal – a ’win-win’ situation or provide ‘the best of both Worlds’. Simply increasing the number of judges, court houses, clerks and stenographers alone may not provide the sought- after, speedier dispensation of the Law. Radical changes rather than mere palliatives, should be the order of the day.