Opinion

Justice delayed is justice denied

19 Oct 2015 - {{hitsCtrl.values.hits}}

Crimes have become just headlines in newspapers today. For one to commit a crime it may take a couple of seconds or a few months. But for a suspect to go behind bars, it would take many years. How easy or difficult is it to identify suspects? Are punishments necessary after all? In a candid interview with the Daily Mirror Udayakumara Amarasinghe, Senior Lecturer in Criminology at the University of Sri Jayewardenepura spoke about these issues in detail.

he incidents of Seya Sadewmi and Sivaloganadan Vidya alerted the public on issues that call for justice against perpetrators,” Amarasinghe said.

“A majority of the public therefore agreed on enacting capital punishment in order to see a reduction in these crimes. But the country’s criminal justice system cannot take decisions based on public opinion.

“In Sri Lanka and every other country there should be a statutory procedure that needs to be followed. But the public believes that the perpetrator needs to be punished as and when a crime happens.

“This is not practical. The idea of re-establishing capital punishment didn’t arise at the onset of either Seya’s or Vidhya’s incidents. Even in the past there have been similar incidents. Another important fact is that many cases of rape and sexual abuse go unreported, but this is not the case for murders. Ten years ago there was an incident when one Sadeepa Lakshan from Mathugama was murdered and thereafter the rape and murder of Rita Jones, the Sarath Ambepitiya murder case, which did alert the public to take to the streets and call for the implementation of capital punishment.

In the Sarath Ambepitiya murder case it was the lawyers and other professionals who took to the streets calling for justice. But in every other case it was the general public, who voiced out loud. When taking incidents where children or women were raped and murdered, there are instances when the public try to take the law in to their hands and become unruly. Therefore they also sometimes try to assault the suspects. This is a violation of human rights and natural justice.”

A suspect doesn’t become a perpetrator in an instant
“According to law, when a suspect is taken in to custody, a case is called for and until that person is identified as the perpetrator out of fair suspicion, he is considered to be innocent.

"We see that many public representatives who are now in Parliament have also voiced out aloud in support of enacting capital punishment It is not these public representatives who should speak about the death penalty but researchers who have studied its pros and cons for a while."

“Therefore just because an individual is identified as a suspect there is no way that he could be punished. The role of Courts should not only be to claim that every suspect is a criminal; courts should also be able to justify, why a person is innocent as well.

“The best example is the 17-year-old schoolboy who was taken in to custody over the Seya Sadewmi’s murder. The arrest created a huge uproar among the public and by any chance if he got caught to the public at that time he would have been assaulted. This would have also been the case if Dunesh Priyashantha alias Kondaya, was caught by the public.

“Yet, during investigations it was scientifically proven that they were not the perpetrators. Therefore if the public, the Police or the media take a centre stage in frowning upon a suspect and assaulting, it becomes a serious crime because every suspect is not a perpetrator in the end.
“At times they could be innocent. Therefore members of the public too needs to act wisely when taking action against this type incidents,” Amarasinghe said.

Delays in getting hold of suspects

“Another fact is that when a crime is reported, chances of taking suspects in to custody don’t happen instantly in some cases.
“Especially, the more a crime has been well-planned the longer it takes to get hold of the suspect/s. The best example for this is little Seya’s murder; because the perpetrator(s) are still unknown. What’s important to note is that most cases of murder that take place in Sri Lanka are done without a plan or on impulse.

“Cases of homicide occur mainly due to quarrels over property and due to people having multiple sexual affairs. Murders that take place due to these reasons are not planned and therefore the suspects can be caught soon. In most cases, perpetrators surrender to the law enforcement.“But there have been instances when suspects of well-planned cases of crimes, have been caught in a short period of time. When a suspect is caught the Police have a responsibility to carry out further investigations to gather evidence and prove that the particular suspect is guilty.

“The suspect then gives a statement to the Police. But during court hearing sometimes the suspects tell different ‘stories’ claiming that they had given the statement under duress. This discrepancy can also delay as it takes more time to get facts verified.”
“There are more individuals who are involved in an investigation other than the Police including the Judicial Medical Officer (JMO), Government Analyst, scientists who carry out DNA tests and officials, who examine fingerprints, whose reports are more advanced than those of the Police and there is a delay until these reports too are finalised.

“It is also important to note that before a case is called for serious crimes they are placed on a non-summary trial. This trial checks if the evidence collected by the Police and other investigators is adequate to prove that the perpetrator was guilty. This too takes some time. If the Magistrate felt that there was enough evidence to prove that the suspect is guilty, he then sends the reports to the Attorney-General’s Department. Thereafter the AG’s Department will send an indictment to commence court hearings. Thereafter the Police and all investigators give evidence.

Ineffectiveness of eye-witness testimonies

“One important aspect of a criminal case is that the suspect should be proven guilty out of fair suspicion or beyond reasonable doubt.
“For example if we take Seya’s case, there is a mismatch between the statement given by the 17-year-old boy and the report of the JMO and therefore the JMO was called by the Human Rights Commission.

“This kind of situations may also arise. Those who are giving evidence for the same incident might tell different versions. Everybody would say that they saw person X being murdered, while one of them would remember the perpetrator as wearing a black shirt while another would remember him as wearing a white.
“People now believe that eye-witness testimonies are not acceptable in a court hearing due to many reasons. At the time of the incident the witness would have been in a state of shock, or he would perceive the incident differently or would forget certain important scenes of the incident, thus making his statements vague and confusing. In worst scenarios these eye-witnesses would also be threatened or would be bribed to tell lies.

Physical circumstantial evidence is a must

“However, physical circumstantial evidence is very important in a court hearing. These include DNA, fingerprints and other specimen such as tyre tracks,

bullets fired at a person that could be collected at a scene of crime. Such evidence doesn’t vanish like the memories of an eye-witness nor can they bribed.

“According to news that was published in media regarding Thajudeen’s incident it was clearly seen that there was a mismatch between the reports of the JMO and the Government Analyst. When all these reports come to courts the lawyer who is appearing on behalf of the suspect starts questioning and tries to show a fair suspicion even if the lawyer is aware that the suspect is guilty.

“If I was a lawyer I would have tried to prove that the suspect is innocent out of fair suspicion. I met some individuals who are on death row and on studying one of their cases I came to know that he had assaulted another with an axe. But in the indictment it has been mentioned that he had committed the crime with a knife.

“The JMO report states that the injuries of the victim were caused by an axe-like weapon but in the list of productions it is mentioned as a knife. Just because there is some evidence you cannot prove that a suspect is guilty. Therefore this process is lengthy.

How fair are lawyers?

“Another fact that we have observed is that these suspects who get caught to these criminal offences do not belong to middle or high income families. A majority of them come from low income families and are mostly illiterate. Due to this situation they can’t reach high profile lawyers. Sometimes these people even have to mortgage their houses and pawn jewellery to pay lawyers’ fees. While speaking to certain perpetrators of murders one thing I found out was that certain lawyers seem to prefer their cases to be dragged on forever.

“I can give a good example. While studying convicts, who are on death row, one prisoner mentioned how he committed the crime. According to his version, while the court proceedings were taking place, the Magistrate had advised the suspect to accept he was guilty and go behind bars for 10 years, and he would be released afterwards.

“But the lawyer had advised him not to accept that he was guilty and had advised him that he would release him of all charges. But the court hearings had continued and finally he had been given the death penalty,” Amarasinghe said.

From Magistrate’s Court to Supreme Court

“There have been certain incidents where prompt action was taken to find the perpetrators of crimes such as the Sarath Ambepitiya murder case and the Royal Park incident. But there are times when cases get dragged for 4-5 years, when all evidence is collected, statements get verified and the Magistrate gives the final verdict.

“Also there was a chance for a suspect to make an appeal to the Supreme Court if he felt that the verdict given by the Magistrate’s Court was unfair.
“So, the Supreme Court takes some more time to study the case again. There is no use of taking action in a case that has long being forgotten. Seya’s case was always in the headlines but if it takes another 10 years to get hold of the suspects, the case will be forgotten by those who are protesting and all other interested parties.

Why punish criminals?

“People think that when capital punishment is enacted and when people are assaulted in public the rate of crimes would be reduced.
“We see that many public representatives who are now in Parliament have also voiced out aloud in support of enacting capital punishment. It is not these public representatives who should speak about the death penalty but researchers who have studied its pros and cons for a while.

"In Sri Lanka and every other country there should be a statutory procedure that needs to be followed. But the public believes that the perpetrator needs to be punished as and when a crime happens."

“But those in our country don’t consult the opinions of professionals when it comes to taking decisions. They often voice out their opinions for publicity only but do not know the targets of punishing the perpetrators. It is not only a matter of punishing them but it is also a matter of catching them immediately. Then only would there be a message conveyed to the society.

“People don’t remember, who Rita Jones was, nor do they remember who Sadeepa Lakshan was. Similarly in a few years time they will forget Seya and Vidhya as well.

Crime prevention is the need of the hour

“Many people believe that punishing criminals would put an end to crimes. But this is only a temporary measure. As a society, our responsibility should be to minimise or wipe out the circumstances that lead to commit crimes.

“This is 100 times more effective than punishing criminals. Therefore we need to change something else. We need to find out reasons behind child abuse, sexual harassment, rape and murder. Also it is important to make a note of the background of the people who are likely to get involved in these crimes, their socioeconomic status, norms and values. It is only if we identify them could we find out their motivated factors to commit crimes. We can change the social settings that they are in.

“There are limited investments on these issues. At least those in parliament don’t speak about crime prevention or whether we are spreading awareness. Seya’s incident clearly shows social insecurity and the irresponsibility of parents. When children are abused they are unaware of the fact that they have been abused, relatives often have a high tendency to abuse these children.

Take an example from developed countries

“When looking at those who are being imprisoned they are of low income status and are illiterate. We are not trying to give them a hand in either employment or education. If they are educated they will be more disciplined. We can’t expect these people to act like a Magistrate or a doctor.

“I saw one individual in Parliament stating that the virility of these rapists should be taken off. But there may be enough and more people who would have raped women and are now set free. Our people are trying to implement laws which were included in the Code of Hammurabi but this is not acceptable in today’s society.

The Code of Hammurabi is a well-preserved Babylonian law code of ancient Mesopotamia, dating back to about 1754 BC. It is one of the oldest deciphered writings of significant length in the world. The sixth Babylonian king, Hammurabi, enacted the code, and partial copies exist on a man-sized stone stele and various clay tablets.

“We need to invest more in preventing the circumstances that lead to crimes. In developed countries there are concepts such as urban planning and crime prevention. These concepts try to construct buildings, office spaces, parking spaces, shopping malls and educational institutes in ways that would prevent opportunities for people to commit crimes.

“But our country is still at square one. What we ultimately need to look at is to improve social security and finally give a boost to the quality of life,” Amarasinghe said.

Opinion

Justice delayed is justice denied

"We see that many public representatives who are now in Parliament have also voiced out aloud in support of enacting capital punishment It is not these public representatives who should speak about the death penalty but researchers who have studied its pros and cons for a while."

Delays in getting hold of suspects

Ineffectiveness of eye-witness testimonies

Physical circumstantial evidence is a must

How fair are lawyers?

From Magistrate’s Court to Supreme Court

"In Sri Lanka and every other country there should be a statutory procedure that needs to be followed. But the public believes that the perpetrator needs to be punished as and when a crime happens."

Take an example from developed countries

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