a thought for judicial REFORM

15 May 2013 06:30 pm - 0 - {{hitsCtrl.values.hits}}

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By K . Godage

A little child caught taking a few coconuts from an estate to pay for a school activity is remanded - a poor woman caught selling some Ganja to feed her children is in remand (the mudalali who gave her the Ganja to sell in never touched) - young men only suspected of having been LTTE sympathizers arrested in a bus in Colombo, rot for years in Jail without being tried.

Now, what do we have - a group of criminals dressed as monks, never practising Seela, Samaadhi, Bhavana - leave alone having Pangna, who are caught on camera indulging in a violent attack on two shops and causing severe damage and absolute fear and bringing the Sangha into disrepute. They are merely warned and discharged after they have committed a non bailable offence in terms of the Penal Code and most important of all disgraced Buddhism, the Sangha and us.
Executive President Mahinda Rajapaksa, Minister of Justice Rauff Hakeem and the new Chief Justice must act now to save the Judiciary and the Justice system for we the people have suffered enough. We cannot let the Judiciary be humiliated.

The Judiciary continues to be very much the centre of debate and very much in the news still after the removal of the last Chief Justice, that issue has even been mentioned in Geneva and I thought I should recall the past to remind ourselves of what went before. It is indeed a very sad situation for us the people when Justice in our country becomes a matter of public debate both here and overseas.

However, the situation with regard to the Judiciary here is nothing new; I recall a statement by a former Justice of the Supreme Court which speaks for itself; Justice K.M.M.B. Kulatunge said, and I quote: “ The entire criminal justice system, perhaps with minor exceptions, is enveloped in corruption. It is corrupt at every level; if there is corruption at the pinnacle there can be no justice at the lower levels. Witnesses are afraid to give evidence lest they are murdered. Judges are so intimidated that they would fix anything to win favour with the party in power. Lawyers will arrange to have a case brought up on a Poya holiday so that the influential person involved can obtain bail.”

What a damning indictment on the Judiciary by a former Justice of the Supreme Court. Yes, the situation has been bad for many years and needs to be addressed on an urgent basis in our country’s interest.

I recall that a Commission of Inquiry – the Wadugodapitiya Commission with senior public servant Chandra Wickremasinghe and former IGP Frank Silva prepared a comprehensive report on the law and order situation and made reference to the criminal justice system and as is the practice in this country the report was never implemented (White ants who only benefitted from it). This was during Chandrika Kumaratunge’s Presidency but before that it was, during Mrs. Sirimavo Bandaranaike’s period as Prime Minister that Felix Dias Bandaranaike brought the new Administration of Justice Law.

Yes, let us bring back the Administration of Justice law of 1973, suitably revised in the light of the experiences gained in the past forty years after that law was first proposed. That Law addressed issues that are relevant even today. We must seek to attract the best possible talent to the Judiciary and offer those who sacrifice the opportunities available to ‘practitioners’, to join the Judiciary, the most attractive of terms comparable with terms offered to the Judiciary in India and Pakistan; their training must also be intense and exhaustive.

The Administration of Justice Law was intended: “To provide for the establishment and constitution of a new system of courts for the administration of Justice within the Republic of Sri Lanka, to define the jurisdiction of the courts, to regulate the procedures in and before such courts, including special procedures in respect of testamentary matters, to repeal certain written laws and to make provision for all other matters connected therewith and incidental thereto.”
The Act was indeed comprehensive, it covered five Chapters: Chapter 1 was “The Judiciary” and covers the Institutions for the Administration of Justice, the division of Sri Lanka for Judicial purposes and ‘Sittings of every court to be public”.

The next section is on the Supreme Court. The second section: ‘On the establishment of Subordinate Courts’, the third on ‘High Courts’ the fourth on ‘District Courts’, the fifth on Magistrate’s Courts and next on the ‘Attorney General’ and likewise; Chapter 2 covers ‘Criminal Procedure’ is absolutely extensive (120 pages of the Act). Chapter 3 is on Testamentary Procedure (20 pages), Chapter 4 covers ‘Appeals Procedure’ and finally Chapter 5 which is on the Destruction of Court Records”.
As stated earlier it was indeed a most comprehensive piece of legislation and it is said that certain leading lawyers were opposed to it as it affected their earning and it had been the first piece of legislation that had been repealed shortly after the (then Prime Minister) J.R. Jayawardena came into office, even before the new Constitution which created the Presidential form of government, was introduced.

" Yes, let us bring back the Administration of Justice law of 1973, suitably revised in the light of the experiences gained in the past forty years after that law was first proposed. "

There is no doubt that this Act which was inspired and led by the late Felix Dias Bandaranaike would have required a tremendous effort by all those who crafted it. It was a piece of enlightened legal reform that was meant to achieve and enhance social justice and also in the process enthrone the Rule of Law in our country. It was said at the time that the legislation was in favour of the client and that it did away with the then existing process where cases went on for years and years.

Is it not the time Minister for you to convince the Cabinet that this piece of legislation is in their interest and re-introduce this with perhaps added necessary features in consultation with BASL, which happily for us, is conscious of their social responsibility, you will go down in our history as the one man who made a lasting contribution towards restoring real and meaningful Justice to our country. Yes, you will no doubt be remembered with gratitude by the public long after you are not the Minister of Justice.

(The writer is a former senior diplomat)

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a thought for judicial REFORM

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