| by Basil Fernando
( December 28, 2012, Hong Kong, Sri Lanka Guardian) “The court system is skewed against ordinary folk,” says Malinda Seneviratne, writing a comment on my last article. His argument is that the people will not defend the courts as the court system is skewed against the people. However, people do have a reason to defend even the highly inadequate and problem ridden justice system as it stands now, rather than having a system that is totally controlled by the executive.
During the last twenty years, I have written almost daily about the defects of the existing judicial system in Sri Lanka and repeatedly demonstrated that the system is mostly dysfunctional. I have also reported on literally thousands of cases of torture and ill-treatment to demonstrate how deeply flawed our system of justice is. Such argument was made not for the purpose of having the system abolished, but rather to have it improved. What the people demand is an improved system which fearlessly defends the people against the powerful forces and against the authoritarian assaults to their dignity and their liberties. Why the system has been defective is due to very many reasons, but the most important reason is heavy interference of the government against the independent functioning of the system.
This may be illustrated by one of the cases we have supported. This is the case of the torture and the murder of Gerald Perera. After his arrest on a mistaken identity, he was severely assaulted, which caused kidney failure. On the basis of his complaint, two cases were filed against the police officers who tortured him. In the fundamental rights case, the Supreme Court held that the police have in fact tortured him and violated his fundamental rights. The Supreme Court awarded the highest compensation to date, both for medical expenses in a private hospital and as compensation for injuries.
The Attorney General thereafter filed a criminal case against the police officers under CAT Act No. 22 of 1994. A week before Gerald Perera was to give evidence at the Negombo High Court, he was shot dead on a public bus. The first accused in a torture case and another person were indicted by the Attorney General’s Department for the murder of Gerald Perera and this case is still pending before the Negombo High Court.
In the criminal case for torture, the Negombo High Court made its judgment after several years and acquitted all the six police officers, despite its finding that these officers arrested Gerald and that torture had taken place inside the police station. This verdict of the court was challenged by way of an appeal and the Court of Appeal gave its verdict on October 2012, altogether ten years after the incident, holding that the High Court judge has erred in acquitting four of the accused as there was adequate evidence against them for conviction. The Court of Appeal ordered retrial. Now these officers have filed an appeal in the Supreme Court against the Appeal Court verdict.
Looking from any reasonable point of view, it is obvious that the torture, murder and prolonged and undue delay are serious defects of the justice system. There is enough data gathered through this case to criticize very many fundamental flaws in the system.
In almost every other case, in the more than thousand cases we have reported, similar and even more glaring problems can be pointed out.
However, does that call for the annihilation of the system? That is what the executive controlled system means. That is not what the widow of Gerald Perera and all who supported him are demanding. They demand a more efficient system of justice.
The contrast can be explained by way of examples from countries where the court system is under the control of the executive.
Around 1992, the United Nations Transitional Authority for Cambodia opened, among other things, a human rights office where people could come and make their complaints about human rights abuses. As a senior officer, I had occasion to record many such complaints.
One complaint was from a man of about forty, who said that his father, mother and two other family members had been kept in prison for about six years. When asked for the reason for their incarceration, he said that his wife had committed suicide but the commune police had taken the entire family under the suspicion of having murdered this lady. When asked why he, as the husband, was not taken by the police, he said that he was out of town that day and the police took only the persons who were in the house on suspicion. When asked whether anybody had investigated into the matter, he said yes, and mentioned that the person who did the investigation is now the prosecutor of a neighboring court.
I visited this court the next day and met this prosecutor, and explained to him the purpose of my visit, which was to look into the complaint made by this man. He put his hands together in the form of traditional greeting and told me, “Please help this family and if you can get them out you will go to heaven”. I replied to him saying, “You are the prosecutor, so why don’t you take the steps to release them, since you have come to the finding that this was a suicide and not a murder?”
The prosecutor replied politely, “Sir, you do not understand and you have no idea about our system at all. In our system, I do not have the power to recommend the release of prisoners once the police or military bring them and put them in jail. Not just me; even if you go to the judge, there is nothing that even the judge can do to release them. The police and the military control this whole system”.
Then I asked him for his advice on the way to get this family released. He said that perhaps we could go to the governor of the province and make a request. We accordingly went to the governor’s house and discussed the matter with him. He said he was fully aware of the case and that the prosecutor we talked to was his uncle. But there was nothing that he could do. After much discussion, he was persuaded to take the matter up with the head of the state himself. After about six months, the head of the state made an order for their release.
That is an illustration of a system controlled by the executive. Judges in such a system do not enjoy judicial power. They are just servants of the executive and all power belongs to the executive. Many such examples can be cited from what we came across in Cambodia.
A similar situation of total control of the judiciary took place in Myanmar after General Ne Win in 1962, and for most part this system is intact even up to now. It is only during the last few months that there has been some loosening of the rigor of the system. However, even now, as far as the courts are concerned, they are controlled by the military administration.
Within the last few months, I have had occasion to meet with and have discussions with many lawyers and human rights activists from Myanmar. In a weeklong meeting we had with a group of twelve persons, there were persons who had been in prison purely due to things that we would not consider criminal acts at all. For an example, one senior lawyer’s proxy was withdrawn by a client on the ground that the client had lost faith in the court. The lawyer was imprisoned and his license to practice as a lawyer was removed for allowing the client to withdraw the proxy on that ground. There was a young lady who had been sentenced to prison for 65 years for sending some emails in support of some protest. She was released after four years due to a general amnesty given due to some political changes. On all such matters of arrest, detention, imprisonment and torture, there was nothing that the courts could do to help anyone. The idea of fair trial has disappeared altogether.
It is true that the torture, murder and serious delays in Sri Lanka’s court system, as manifested in Gerald Perera’s case and others, are extremely bad. However, that is not to say the situation is the same as in Cambodia or Myanmar as explained through the incidents cited above. The distinction is between a defective system where judicial power is still enjoyed by judges and another kind of system where the judges are mere agents of the executive.
The people in Sri Lanka do want a better system of justice; they naturally do not want a worse system. The demand of the people is not for the executive to take the judicial system under its thumb, but for the executive to provide the necessary funds and other resources so as to enable the judicial system to function better. What people of any democracy want is not a less independent judiciary but a more independent judiciary.
In Hong Kong, where I live, it is not even possible to imagine a situation similar to Gerald Perera’s case or other instances mentioned from Myanmar and Cambodia happening at all. The independent judiciary is one of the systems that is highest valued and appreciated by the people. This has made the judiciary capable of playing a supervisory role over all other institutions, such as the police, the corruption control agency – which enjoys the confidence of the people – and the civil service. In the recent decades, Hong Kong has earned the reputation of a place where bribery has virtually been eliminated. The functioning of the rule of law system heavily depends on the role played by the judiciary.
The reason why there is resistance against the impeachment move is because of the manner in which it was done, which undermines the independence of judiciary. The aim of the impeachment is, as senior lawyer S L Gunasekara has said, to create a stooge judiciary. This is not what people want.
People want a judiciary that can protect them against illegal arrest, illegal detention, torture and ill-treatment, and which can assure them a fair trial. People also want the judiciary to be able to protect their property from those who wish to grab their lands or to profit by way of corrupt means. They would certainly want a judiciary that is able to stop abduction and forced disappearances. Naturally they would want a judiciary that is able to prevent undue interference of any sort against their basic freedoms.
Thus, to use the frustration that people have against the flaws in the judicial system now to justify further interference with the independence of the judiciary is distorted logic and certainly not an attempt to promote the interests of the people.