The newspapers reported a request by the Judicial Service Association (JSA) to “implement the death penalty to halt the loss of public confidence in the judiciary.” This, according to the report was done at the Annual General Meeting of the association which comprises of judicial officers from High Courts, District Courts and Magistrate’s Courts around the country.
The meeting (resolved) to inform the president that the public had begun to loose confidence in the judicial system as criminals, on whom severe sentences were passed after conviction, went unpunished.
This report tries to connect two issues; those being the loss of the confidence of the people in the judiciary, and the non-implementation of the death sentence, which in fact need not have any connection at all. There is a common Sri Lankan saying, “Where are you going? Malle pol (I have a coconut in my bag). The question posed and the answer given has no connection and therefore evokes either sarcasm or humour.
That the JSA, said to be consisting of judges from High Courts and below, have come to the view that the judiciary is loosing public confidence is to be welcomed. However, this criticism has already been made by the public, research organisations, lawyers groups, human rights groups, and in fact, even some senior retired judges of the Supreme Court. That those in active judicial service have come to recognise the fact that they are loosing public confidence could have been a very positive step if an attempt was made to critically and frankly analyse the reasons for such loss of public confidence. Since the best spokesman to explain the reasons for the loss of public confidence in the judiciary is the public itself, its members could have referred to many documents, all of which record the reasons given by the public for this occurrence. The judges could also have referred to the report entitled “Eradication of Laws Delays – Committee Appointed to Recommend Amendments to the Practice and Procedure in Investigations and Court” in its final report published in April 2004. (We will refer to this report as the ‘Committee Report’).
The judges would have found that the following are among the prominent reasons given by the public itself on this issue:
- Delays in adjudication On this the view of the whole nation is unanimous. The Committee Report recognises this problem and devotes a great part of the report to the issue. Cases, which in many countries now could end in three to six months take many years in Sri Lanka. Often people come to court many times only to hear that their cases have been postponed to another date. Many courts do not sit on time even though the people are expected to attend court punctually. Some courts are delayed for several hours each day. Also there is hardly any respect for the ordinary citizen who comes before the court (in Magistrate’s courts, often people have to pay fees to lawyers who has time only to say ‘I appear sir’, before the next date is announced). No amount of excuses on this issue will help to improve public confidence which has been lost due to the standard of the performance of the courts, which is highly inefficient. It is beyond controversy that without resolving these issues neither the performance nor the public’s views on the matter will improve.
- The absence of witness protection On this matter too there is unanimity. The Committee Report recognises this as a serious problem. The country’s Attorney General himself has gone on record during a public speech frankly admitting the problem. The UN agencies have made recommendations to Sri Lanka to address this problem. The country’s representatives have made promises at international gatherings to deal with the problem. The Committee Report recognised that the successful conviction rate in criminal prosecutions is only four percent. The foremost reason for this is the fear of the witnesses to come to court. Those who have been killed while waiting to give evidence are many and the best known case is that of the torture victim Gerard Perera, who was assassinated a few days before he was to give evidence against some police officers who he had accused of torturing him. Despite of unanimity in admitting the problem nothing has been done to correct it.
- The failure of the criminal investigations by the police The Committee Report recognises this as one of the major reasons for the increase of crime. Most of the worst crimes have not been resolved. On this matter too there is unanimity; that the system of criminal investigations has collapsed. Many reasons are attributed to such a collapse among which more recognised causes are the complete politicisation of the policing system, loss of discipline within the policing system in which many policemen themselves including some high rankers are said to be involved in crimes, and the collapse of the command responsibility system from within. The absence of a constitutionally constituted National Police Commission (NPC), which is the highest body having control over appointments, transfers, promotions and disciplinary control of the police also leaves this severely damaged institution without the means to repair itself.
- The failure of the police to attend courts The Committee Report admits this problem and made the following recommendations: “The Committee makes the following additional recommendations pertaining to the Police in the context of advancing best practice:
a) Compulsory attendance: The Committee recognises the need to introduce administrative measures requiring Police Officers to attend Court on a compulsory basis, in view of the frequency with which Police Officers obtain leave and abstaining from Court sighting inappropriate grounds, which has been observed to result in unnecessary disruption of Court proceedings in the recent past.”
How could the public respect the courts if even the law enforcement officers don’t even care to attend court when it is their duty to do so?
- The perception of corruption in the judiciary There have been reports published by research organisations and even comments by retired Supreme Court judges on this issue. The talk on this issue is very much more common now than it was a few decades ago. The cleansing of the reputation of the judiciary will very much depend on transparency on this matter. The very fact that two of the three-member Judicial Service Commission, which is supposed to deal with such issues resigned complaining of ‘matters of conscience’ was a matter that the JSA should have taken seriously. The appearance of the misuse of contempt of court powers has also contributed to this loss of confidence. The implementation of recommendations by the UN Human Rights Committee in their views expressed in several communications from Sri Lanka would be a useful measure to help correct the excesses in this issue. The silence of the JSA on such issues is perceived in the public as complicity.
Many more issues relating to the public loss can be listed and in fact, the Asian Human Rights Commission has constantly pointed out these problems. The simple question that is relevant to the present discussion is as to how the implementation of the death sentence is going to resolve any of these problems. The people who are sentenced to death are in prisons. How could their being dead of alive help to resolve the problems which have lead to the alienation of the people from their judicial system? The old saying about trying to stop diarrhoea by tightening the underwear is unfortunately appropriate to the manner in which the JSA has analysed the problem. This type of public pronouncement will not add to public confidence.
The AHRC recommends that the Judicial Service Association takes up serious research into the reasons for the loss of public confidence and after appropriate study further improves on the Committee Report and pursues its recommendations.
