Amongst the few great achievements of human kind, the establishment of the idea and the practice of fair trial is one of the best examples of civilisation’s struggle against barbarism. Centuries of the practice of the contempt that power has against justice was defeated by the developments relating to fair trial. Absolute rulers and ruthless religious organisations had earlier used the pretext of trials merely to suppress dissent. By the establishment of basic norms and standards of fair trial human kind has demonstrated that human wisdom can overcome some of the ugly aspects of humanity itself.
Whatever might be said of colonial powers, one of the better aspects introduced during colonial times was the meting out of justice by means of fair trial. If there is anything that is modern in contemporary Sri Lanka, fair trial is certainly the most prominent aspect of it all. Devoid of this aspect Sri Lankan life would be most primitive and barbarous indeed.
It must be admitted that even from the time of the introduction of fair trial in Sri Lanka, there were many factors that inhibited the full realisation of its principles and practices. It took a long time for the development of judges, lawyers, prosecutors, defenders and others to be created. The old feudal ‘justice’ was based on ruthless, absolute power concepts and ingrained habits of inequality entrenched in a caste based society where equality was an alien factor. Even after a long period of education the old habits of inequality and prejudice were not completely erased.
Besides this there were also other limitations based, perhaps, on insufficient allocation of resources into the development of a justice tradition. As a result there were enormous delays in the administration of the justice process, there were huge deficits in the people’s access to justice and there were severe limitations in the development of discipline in the policing service, which operates as the investigator into crimes within this system.
Despite of these and other factors it can be said that a basic system of justice, which is ultimately founded on the cornerstone of fair trial, has been adequately introduced to Sri Lanka.
The essential of fair trial is that the decisions are made by independent and impartial courts that evaluate evidence purely on the basis of norms and standards of justice and upholds the highest standards of rationality. In criminal trials this means that the guilt of any person is decided entirely on the basis of crimes defined on the basis of law and on the evaluation of evidence based on the principles of law and justice only.
It is now acknowledged that in the recent decades Sri Lanka has ultimately entered into a period of tragedy known as the politicisation of all aspects of governance and social life. The national consensus on this age of tragedy was reflected when the 17th Amendment was almost unanimously passed in order to bring about some basic constitutional reforms in order to get over this national ailment called politicisation.
This attempt to cure the ailment has failed or at least has been abandoned and Sri Lankans today live in an age where all things are politicised. Everyone has acknowledged this aspect of the nation’s tragedy.
The question now is will such politicisation also affect fair trial? Some may argue that fair trial has already been undermined for some time now. However, will there be a dramatic change from fair trial practices to naked political trials? This should be a serious enough question to be pondered upon.
It is possible to point out the major factor that distinguishes a political trial from a fair trial. There have been masters who have formulated the basic notions of political trial and among such masters, a prominent place is held by Andrei Vyshinky, Joseph Stalin’s prosecutor. He defined the purpose of trials as a means to send messages to the people. The individuals charged were a matter of no importance at all. Whether a person had committed a crime for which he could be charged or whether the charge can be proved at all, was a matter of no consequence. The person charged was merely a symbol to send a message to others so that they will be discouraged from having any opinions or doing anything that might be considered in a negative light by the regime in power. In the course of a trial reducing the accused to despair by the use of blackmail, threats and physical intimidation was allowed. The accused were even encouraged to contribute to the good of the nation by cooperating with the prosecutors and judges in admitting their own guilt. The accused were brought to such pressure that several of Lenin’s closest collaborators, who fought for the Russian Revolution, confessed that they were traitors to the socialist nation. Such trials gave the impression as being all important, while in fact remaining insubstantial.
In such political trials the people could be ‘tried’ for holding opinions. In fact, the ‘trial’ was more directed towards the outlawing and elimination of certain opinions and strongly re-imposing certain other opinions.
Will the next stage of the spread of the disease of politicisation in Sri Lanka be the introduction of political trials and the complete displacement of fair trial? To ignore this question is to remain blind and passive before one of the greatest threats to civilisation itself and one of the few great achievements of humankind introduced to Sri Lanka with whatever limitations.
