“If the Attorney General as an advisor to the government acts on the target of achieving the target of having all trials finalised within the period of one year from the date of the incident the stronger criminal justice system would result in Sri Lanka.”
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By Basil Fernando
(December 29, Hong Kong. Sri Lanka Guardian) A news report published in the Lankapuvath entitled ‘A stronger law is needed’ which reported a speech by the Attorney General, Mohan Peiris, raises some serious concerns as to whether the already seriously damaged criminal justice system in Sri Lanka is to suffer even greater setbacks in the near future. The thrust of the report under a stronger criminal seems to be not about assimilation of the developments of the criminal law which have been achieved throughout the world but rather in the possibility of abandoning some of the basics of criminal justice under the pretext of making the system stronger.
Presently the criminal justice system in Sri Lanka suffers great weaknesses in the following areas: Sri Lanka does not have a witness protection law. Despite of a bill being placed before parliament this law has been swept under the carpet. Any stronger criminal law in a real sense would require the strongest possible protection for the witnesses. If the witnesses do not come forward to give evidence no reforms in criminal law can ensure that proper prosecutions can take place.
If proper prosecutions do not take place the only other way of getting convictions is to prevent any possibility of fair trial thereby virtually assuring that anyone accused of a crime could somehow end up as a convicted prisoner. The tendency in recent times goes beyond this, to allow assassination of the alleged criminals after arrest, while they are in detention on various pretexts such as them having tried to attack the police officers. The other way to of dealing with criminals demonstrated by the manner that the Bambilipitya Police dealt with Balavavaran Sivakumar when the police pursued him into the sea.
Besides strengthening protection for the witnesses the foremost need is for the trials to be held speedily. Now trials can take up to ten years judging by the trials that are pending before the courts in recent years. The abandonment of the jury trial has provided opportunities for the postponement of trials at High Courts and sometimes the trials are postponed after taking some of the evidence as quickly as 20-30 minutes from a witness.
In one of the cases that went before the Human Rights Committee, the committee held that delays in that particular case for about three years amounted to undue delay and thus violating the rights of the complainant. Any rational attempt to have a stronger criminal law need serious reforms to be undertaken in order to ensure speedy trial and also to stop the practice of postponing trials once they have started, particularly before the High Courts which hear cases of serious crimes.
The simplest way of ensuring a stronger criminal justice system which is efficient and fair, is to ensure that proper funding is provided for the matters relating to criminal justice. This would mean proper funding be provided to ensure competent investigations into crimes, funding to be provided to the Attorney General's Department itself to have a sufficient number of state counsels so that there will be no delays in the filing of indictments by the department and that sufficient funding is provided to courts to ensure a sufficient number of courts so that speedy trials can take place.
In many jurisdictions now a criminal trial can finish within six months from the date of the filing of the indictment. The filing of indictments in most cases can be done in a period of less than six months from the date of the incident. In totality criminal trials can be heard and finalised within a short period of one year and any appeal thereafter could also be done within a period of less than one further year.
By Basil Fernando
(December 29, Hong Kong. Sri Lanka Guardian) A news report published in the Lankapuvath entitled ‘A stronger law is needed’ which reported a speech by the Attorney General, Mohan Peiris, raises some serious concerns as to whether the already seriously damaged criminal justice system in Sri Lanka is to suffer even greater setbacks in the near future. The thrust of the report under a stronger criminal seems to be not about assimilation of the developments of the criminal law which have been achieved throughout the world but rather in the possibility of abandoning some of the basics of criminal justice under the pretext of making the system stronger.
Presently the criminal justice system in Sri Lanka suffers great weaknesses in the following areas: Sri Lanka does not have a witness protection law. Despite of a bill being placed before parliament this law has been swept under the carpet. Any stronger criminal law in a real sense would require the strongest possible protection for the witnesses. If the witnesses do not come forward to give evidence no reforms in criminal law can ensure that proper prosecutions can take place.
If proper prosecutions do not take place the only other way of getting convictions is to prevent any possibility of fair trial thereby virtually assuring that anyone accused of a crime could somehow end up as a convicted prisoner. The tendency in recent times goes beyond this, to allow assassination of the alleged criminals after arrest, while they are in detention on various pretexts such as them having tried to attack the police officers. The other way to of dealing with criminals demonstrated by the manner that the Bambilipitya Police dealt with Balavavaran Sivakumar when the police pursued him into the sea.
Besides strengthening protection for the witnesses the foremost need is for the trials to be held speedily. Now trials can take up to ten years judging by the trials that are pending before the courts in recent years. The abandonment of the jury trial has provided opportunities for the postponement of trials at High Courts and sometimes the trials are postponed after taking some of the evidence as quickly as 20-30 minutes from a witness.
In one of the cases that went before the Human Rights Committee, the committee held that delays in that particular case for about three years amounted to undue delay and thus violating the rights of the complainant. Any rational attempt to have a stronger criminal law need serious reforms to be undertaken in order to ensure speedy trial and also to stop the practice of postponing trials once they have started, particularly before the High Courts which hear cases of serious crimes.
The simplest way of ensuring a stronger criminal justice system which is efficient and fair, is to ensure that proper funding is provided for the matters relating to criminal justice. This would mean proper funding be provided to ensure competent investigations into crimes, funding to be provided to the Attorney General's Department itself to have a sufficient number of state counsels so that there will be no delays in the filing of indictments by the department and that sufficient funding is provided to courts to ensure a sufficient number of courts so that speedy trials can take place.
In many jurisdictions now a criminal trial can finish within six months from the date of the filing of the indictment. The filing of indictments in most cases can be done in a period of less than six months from the date of the incident. In totality criminal trials can be heard and finalised within a short period of one year and any appeal thereafter could also be done within a period of less than one further year.
If the Attorney General as an advisor to the government acts on the target of achieving the target of having all trials finalised within the period of one year from the date of the incident the stronger criminal justice system would result in Sri Lanka.
If instead of doing this, the suggestions similar to the one forwarded sometime back by the infamous Malimath Committee in India suggesting the doing away with the criminal justice system such as the issue of the burden of proof without reasonable doubt, and the denial of the right to remain silent to the accused and even dealing with the issue of the presumption of innocence were to be adopted in Sri Lanka that would not ensure a criminal justice system, it would only ensure the diminishment of even the existing system of criminal trials in Sri Lanka.
Unfortunately, the Attorney General in his speech does not seem to have dealt with any of the issues of the witness protection law or any suggestions to ensure speedy trial in Sri Lanka. From this point of view the last of the Attorney Generals that pursued a more rational form of thinking in order to improve the criminal justice system in Sri Lanka was K.C. Kamalasabeyson. He argued for a better law relating to witness protection and for investments of funds for the improvement of justice.
If instead of doing this, the suggestions similar to the one forwarded sometime back by the infamous Malimath Committee in India suggesting the doing away with the criminal justice system such as the issue of the burden of proof without reasonable doubt, and the denial of the right to remain silent to the accused and even dealing with the issue of the presumption of innocence were to be adopted in Sri Lanka that would not ensure a criminal justice system, it would only ensure the diminishment of even the existing system of criminal trials in Sri Lanka.
Unfortunately, the Attorney General in his speech does not seem to have dealt with any of the issues of the witness protection law or any suggestions to ensure speedy trial in Sri Lanka. From this point of view the last of the Attorney Generals that pursued a more rational form of thinking in order to improve the criminal justice system in Sri Lanka was K.C. Kamalasabeyson. He argued for a better law relating to witness protection and for investments of funds for the improvement of justice.
Mr Kamalasabeyson raised the question as to whether it was not important to invest money in justice than same way as putting money into the construction of of roads. “I will only pose a simple question. Is it more important for civilized society to build roads to match international standards, spending literally millions of dollars, rather than to have peaceful and law abiding society where rule of law prevails?” ( 13th Kanchana abhayapala memorial lecture, on 2nd December 2003).
If the present Attorney General abandons that path and insists on undoing some of the basic rights of the accused, the results would be the replacement of summary justice and not the improvement of criminal justice within a framework of fair trial.
