Law's de­lays af­fect the poor and the marginalised the most

Sunday Times (Sri Lanka) - - COMMENT/NEWS - By Javid Yusuf

Last week, civil so­ci­ety com­mem­o­rated ten years since the bru­tal mur­der of Las­an­tha Wick­reme­tunge. There is lit­tle doubt his death was due to his work in the me­dia field and his for­ays into in­ves­tiga­tive jour­nal­ism, which ex­posed the mis­deeds of those in po­si­tions of au­thor­ity.

Las­an­tha’s death was orig­i­nally at­trib­uted to gun­shot in­juries. A sub­se­quent post­mortem af­ter ex­huma­tion of the body on an ap­pli­ca­tion by the CID re­vealed that he was in fact killed by a sharp in­stru­ment. This, to­gether with other ev­i­dence, un­cov­ered by the CID clearly es­tab­lishes that there were at­tempts to cover up the mur­der.

Rugby player Wa sim Tha­judeen’s mur­der, too, was orig­i­nally de­clared an ac­ci­dent, but sub­se­quent ev­i­dence was suf­fi­cient for the Court to hold that he was in fact not killed by an ac­ci­dent but was mur­dered.

The fact that even af­ter 10 years no one has been in­dicted in Court in re­spect of Las­an­tha’s mur­der is a damn­ing in­dict­ment on the ad­min­is­tra­tion of jus­tice in the coun­try. Even if an in­dict­ment is filed in the near fu­ture (al­though not likely) it will prob­a­bly take at least an­other five years for the trial to con­clude.

Sim­i­larly, there are sev­eral high- pro­file cases re­lat­ing to Pradeep Ekneligoda, D Si­varam, 5 youths in Trin­co­ma­lee, 13 aid work­ers in Mut­tur and a host of oth­ers that re­main un­re­solved. An­other case in point is the We­likada Prison mas­sacre in 2012. One is un­aware whether in­ves­ti­ga­tions have even com­menced seven years af­ter this das­tardly act took place, de­spite the avail­abil­ity of an in­quiry re­port on the in­ci­dent.

The Prison mas­sacre raises sev­eral is­sues, in ad­di­tion to the mur­der of the pris­on­ers. Here was an in­stance of pris­on­ers in the cus­tody and care of the State, where their lives should have been safe and se­cure, be­ing gunned down in what was clearly a pre-planned at­tack. Apart from the cul­pa­bil­ity of those who car­ried out the killings, the State too is ac­count­able for fail­ing to pro­tect and se­cure the lives of those in its cus­tody.

This is a case that should have seen com­ple­tion by now, be­cause un­like in some of the cases men­tioned above, the in­ves­ti­ga­tions would have to be con­fined to a lim­ited space like the Prison premises and the sus­pects in­volved in the in­ci­dent. There would have been hardly any time-con­sum­ing out­side in­ves­ti­ga­tions to be done. Yet there is hardly any in­for­ma­tion in the pub­lic do­main as to whether these in­ves­ti­ga­tions are be­ing pur­sued.

De­spite Las­an­tha Wick­reme­tunge’s mur­der be­ing re­lated to his role as a me­dia per­son­al­ity, the fact that he was an at­tor ney- at- law can­not be ig­nored. One would have ex­pected the Bar As­so­ci­a­tion of Sri Lanka to have paid greater at­ten­tion to in­ves­ti­ga­tions re­lat­ing to one of its mem­bers, more so be­cause of the larger is­sues sur­round­ing his death. The BASL is well po­si­tioned to mon­i­tor and en­sure the com­ple­tion of these in­ves­ti­ga­tions be­cause the work of its mem­bers are in­ex­tri­ca­bly in­ter­twined with the ad­min­is­tra­tion of jus­tice.

The BASL has in the past taken proac­tive ac­tion as in the cases of Wi­jedasa Liya­naratchi, Kan­chana Abey­pala and oth­ers who met their death due to vi­o­lence. Even now it is not too late for the BASL to ap­point a per­ma­nent com­mit­tee to mon­i­tor and en­sure the com­ple­tion of the in­ves­ti­ga­tions into the death of Las­an­tha Wick­reme­tunge.

The ad­min­is­tra­tion of jus­tice in Sri Lanka moves at a tardy pace and the sub­ject of the law's de­lay is a peren­nial topic of dis­cus­sion among so­cial ac­tivists. The slow pace at which the wheels of jus­tice move, also leaves room for the pow­er­ful in so­ci­ety to ma­nip­u­late the sys­tem in their favour. Those who suf­fer most are the poor and down-trod­den who are often not aware that the sys­tem is be­ing abused, and re­sign them­selves to suf­fer the con­se­quences.

The Is­land news­pa­per of Jan­uary 12, 2019 in its ed­i­to­rial refers to the con­vic­tion of a 69- year- old who has been sen­tenced to death for a mur­der he com­mit­ted 32 years ago in Ham­ban­tota. An­other in­stance of the prover­bial de­lays in the sys­tem was a par­ti­tion case that was be­ing heard in the Dis­trict Court of Ku­rune­gala sev­eral years ago which was still in its early stages de­spite 20 years hav­ing lapsed since it was filed.

There may be many other cases away from the pub­lic eye which are de­layed to vary­ing de­grees due to the de­lays in the ad­min­is­tra­tion of jus­tice. Speedy ac­tion is nec­es­sary to rem­edy the sit­u­a­tion if the word jus­tice is to have any mean­ing.

Prob­a­bly the most rad­i­cal re­forms in the ad­min­is­tra­tion of jus­tice af­ter in­de­pen­dence was seen in the 1970s un­der the stew­ard­ship of the con­tro­ver­sial Min­is­ter of Jus­tice Felix R Dias Ban­daranaike. Not­with­stand­ing his be­lief that ‘a lit­tle bit of to­tal­i­tar­i­an­ism’ was good for gov­er­nance, Ban­daranaike ef­fected a se­ries of re­forms which over­all had the ef­fect of speed­ing up jus­tice, as well as bring­ing the sys­tem of jus­tice closer to the peo­ple.

He set up High Courts in all parts of the coun­try which re­placed the sys­tems of Azzizes where judges, and even lawyers, would travel from Colombo to hold ses­sions where crim­i­nal cases in­volv­ing the big­ger of­fences would be heard. Wit­nesses would have to travel long dis­tances to give ev­i­dence. For in­stance the Cen­tral Azzizes would be held in Kandy and wit­nesses from far off lo­ca­tions would have to travel to Kandy to give ev­i­dence. The ac­cused would have to pay con­sid­er­able sums as fees for the lawyers who would in­vari­ably be from Colombo.

How­ever, with the High Courts be­ing es­tab­lished in al­most ev­ery Dis­trict, the wit­nesses were spared the dif­fi­culty of trav­el­ling great dis­tances to give ev­i­dence. Ad­di­tion­ally, groups of lawyers be­gan es­tab­lish­ing their prac­tices around the spe­cific new Courts, thus re­duc­ing the cost of lit­i­ga­tion while at the same time en­abling young lawyers to build up their prac­tices more quickly.

The same was true of the lower Courts. Ban­daranaike es­tab­lished Mag­is­trate's and Dis­trict Courts in al­most all parts of the coun­try which helped the pub­lic a great deal.

Among the other changes that he in­tro­duced was pro­ce­dural changes in the Crim­i­nal as well as Civil Law. The non-sum­mary pro­ceed­ings were abol­ished and the process of di­rect in­dict­ment was in­tro­duced to speed up crim­i­nal tri­als.

Amend­ments were in­tro­duced to the Civil Pro­ce­dure by in­tro­duc­ing pre- trial pro­ce­dures as well as the con­cept of two ju­di­cial days in one cal­en­dar day. These pro­ce­dures were abol­ished by the suc­ceed­ing Gov­ern­ment, but for­tu­nately the cur­rent Gov­ern­ment has re- in­tro­duced pre- trial pro­ce­dures in civil cases.

An­other fac­tor that is slow­ing down the ad­min­is­tra­tion of jus­tice is the heavy work­load han­dled by the dif­fer­ent seg­ments of the sys­tem. There is a real need to re­cruit more judges at all lev­els. The re­cent in­crease in the cadre of the At­tor­ney Gen­eral’s Depart­ment by over 100 is a step in the right di­rec­tion.

The in­ves­tiga­tive arm of the Po­lice too needs to be strength­ened by more hu­man and ma­te­rial re­sources.

The ur­gent need to min­imise the law's de­lays can­not be overem­pha­sised. In­jus­tices and frus­tra­tions caused by such de­lays can con­trib­ute to so­cial un­rest and a dis­con­tented so­ci­ety.

There is a great onus on the prac­ti­tion­ers in the ad­min­is­tra­tion of jus­tice - the BASL, the AGs Depart­ment, the Ju­di­ciary and the Po­lice, to­gether with the Min­istry of Jus­tice - to put their heads to­gether and ad­dress this is­sue.

Such re­forms should be wellthought out and im­ple­mented in a man­ner that will not in any way com­pro­mise the qual­ity of jus­tice that is de­liv­ered to the peo­ple.

( [email protected])

Newspapers in English

Newspapers from Sri Lanka

© PressReader. All rights reserved.