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