Laws delays, rule of law and good governance

Justice delayed is justice denied 

William Gladstone said in the frequently-used adage in legal circles that “justice delayed is justice denied,” which is applicable to the justice system worldwide. 

We inherited English legal principles of presumption of innocence and application of Rule of Law which means to act according to the existing law, expected to be just and fair, and equality before law are some of the main guiding principles of our legal system, which the world has rated high despite isolated black marks common to the world in all jurisdictions.

The criminal procedure, civil procedure, evidence ordinance and most of the legislation in practice in Sri Lanka are imported from the British and applied with subsequent amendments which are alien, archaic and complicated to us in use in a foreign language. In addition we are muddled with the Sinhala, Tamil and Muslim personal laws and Roman Dutch Law on property matters. 

The citizen has been suffering from the time the foreign legal system was introduced in which one of the classic examples of miscarriage of justice is the story of “Sinudu” in the story “Baddagama” by the historian Lenard wolf about a case in deep down south “Walasmulla” in which the justice was meted with the foreign language at the cost of the innocent villagers life and freedom which is continuing in everyday in the maze of litigation every day. 

Laws delays are worldwide and common to any jurisdiction. Law Society Gazette in the UK complaints of a backlog of 63000 appeals pending and Vinod’s case in India of the rape and killing of the 5 year child took 22 years with 36 witnesses with ample similar examples in Sri Lanka. In Sri Lanka there are land/partition cases that run to decades and generations. In Sri Lanka the hearing of a rape victim and the murder sometimes take 15 to 20 year’s average. In the history of Bribery cases only few have been successful so far despite the enormous funds pumped and it is hardly heard in the media. Laws delays are frequent in western jurisdictions despite modern trends and sophisticated equipment’s with sufficient funds to the mechanism on delivery of justice. Best mechanism was introduced to Sri Lanka by the act No 44 of Administration of Justice Act introduced by Hon Felix Dias Bandaraneike who was unpopular among the legal profession for the ground breaking reforms to expedite the justice system that was thrown away by the legal profession headed by the eminent lawyer Dr. H. W. Jayawardna Q. C. brother and the advisor to then  President J.R.Jayawardena continuing the system to benefit the privileged legal profession for exploitation of the litigant directly responsible for laws delays, with other parties concerned mentioned in this article. No short cuts as the solution. The Nation needs drastic legal reforms with honest and genuine legislators. Or perish together. 

Bribery and corruption has engulfed the legal system and all other branches of governance as a major cancer 

Bribery and corruption is cancerous rampant and all over as breath and air in the system more deep rooted in the administration of justice and the court system where anything is possible with bribe. 10% citizens are litigants who experience is as a daily routine who has no faith the in the legal system and resolved to take law into hands in resolving disputes. Oxford defines Bribery as fraudulent conduct by those in power typically involving in bribery and the action or effect of making someone something morally deprived. Corruption involves more than two or more people enters into secret agreement to pay an inducement for an official for securing for a favour or some deception in return, Bribery is an offence punishable under penal code as far back as 1882 now incorporated as the briary act 11 of 1954 amended up to 2012. Bribery according to the act is punishable In addition to many other reasons of injustice and laws delays which are common all over the world the main course for breakdown of law order and justice is Bribery, corruption and inefficiency spreading fast as air. Civil procedure and the system are complicated and needs complete overhaul of the law, procedure and the outlook. Criminal procedure and the system is still complicated with the dependence of Peace Officers, statutory bodies such as the departments assisting technical support, Attorney General Department is overloaded with work with lack of staff and facilities. It is a known fact that some partition/land/criminal with appeal cases has taken generations despite taking steps to speedy completion. Some murder and rape cases have taken decades when a child rape victim gives evidence after 15 years and murder cases take sometimes 20 years when the witnesses are dead and the productions have gone missing. These are not isolated cases as it is the order of the day in day to day which is in the public domain. As a test Bribery Commission was rejuvenated by appointing Mrs “Dilrukshi Wickramasinge” - an energetic personality with lot of hopes and enthusiasm, and a Commission was appointed to inquire into corruption by the previous government with an honest and experienced secretary Mr “ Lacille de Silva” and the fate of both officers are still fresh in memory of the citizen always at  the receiving end. This proves that bribery and corruption to weak governance and inefficiency. “Quotation- but when you have bad governance… the resources are destroyed-there is illegal logging, there is soil erosion. I got pulled deeper and saw how there’s issues became linked to governance, corruption and dictatorship Mathis – Kenyan Activist.” Unfortunately in our Parliamentary history there were records of only three convictions on standard minor bribery charges. The recent two cases are trivial on two asserts cases of “Duminda Silva” and “Sarana  Gunawardena” subjected to the fine of Rs 2000 with no other harm, in addition to the conviction of  “Monnakulama M. P.” during  Hon. SWRD Bandaraneika’s premiership which is unique to the credit of then Prime Minister. Today we have the most corrupt Parliament Mafia working together having forgotten party politics to earn money collectively by illegally selling vehicle permits at enormous profits with the loss of 3.1 billion to the citizen and more to be exposed. Activist lawyer Nagananda Kodittuwakku has filed a case against 100 MPs in the Supreme Courts when Ravi Karunanayaka has resigned for a short while, on the Mahandran/Alosyisis scam the citizen is conversant with and continuing. Now the alleged wealth accumulated by the previous President and “Thadueen” affair involving his wife is one of the main issues in the field of bribery and Corruption as priority all well known to the public despite the Vat and Bond Scams the highest public robberies from the citizen in the decade which is still not resolved when the culprits are enjoying their accumulated wealth apparently in Dubai. 

Who is responsible for laws delays and not bringing offenders to justice without delay? 

Fingers are pointed at   Minister of Justice, Attorney General, Legal Profession, Bribery Commissioner, Legal System, inefficiency of the establishments, lack of political will of the Minister to identify the Bribe takers and punish them outside special procedure by setting up special courts and procedures adopting new and special legislation and special procedure. A group of agitated members of the legislature have made the main accusation to the Minister and AG’s department they believe are inefficient and do not do enough to bring the suspected members of the last regime accused of bribery and corruptions by a group of legislatures of the ruling party. Minister’s response to the agitated colleagues is simple, logical, legal and convincing. He said to the party group and the public that, he is bound to adopt the due process, and to act legally and constitutionally based on the guidelines and articles of the supreme law the citizens are bound to. Judicial power is exercised through courts  Article 4-(c) created and established by law, and all persons are equal before law Article 12(1) and  No citizen shall be discriminated against on the grounds of political opinion 12(2) nor can subject to disability, restriction and every person is presumed to be innocent until he is proved guilty Article 13(5), and the mode of appointments of the judiciary is enshrined in the 1978 Constitution and the 19th Amendment adopted in hurry and haste which requires many changes in the implementation process. 

Chief Justice is the head of the judiciary and the Attorney General is the advisor to the state expected to be independent and impartial towards the citizen depending on justice and fair play. President of the Bar Association is the leader of the “Unofficial Bar” who plays a pivotal role in the process of delivery of justice with the legal profession acting as officers of courts assisting the Judiciary and the citizen. The Ministries and departments supporting the process as necessary appendages of the delivery of justice expected to be steady, just and impartial. Delivery of justice is a combined operation/process of all the necessary parties led by the Chief Justice and the judiciary who has control over the management of the Law College, disciplinary actions of the lawyers and the judiciary giving directions to the other judges with the cooperation of the Attorney General and the Minister of Justice which indicates that the process is complicated and the role played by the Minister is merely complementary and facilitation providing resources and assistance with no powers on the main process. Therefore finding fault on the attorney General and the Minister is illogical. 

Setting up of special courts to hear and disposal of bribery and corruption cases against the members of the previous regime 

Cabinet spokesmen declared that the Cabinet has decided to set up special courts to hear allegations of the previous regime on bribery and corruption. Though there is no provision in the 1978 Constitution for such a procedure the Cabinet may following the Commissions appointed to remove civic disabilities of Madam Bandaraneika - the main contender to H.E. J.R. Jayawardena created a similar institution based on cabinet decisions. Today the world situations have changed and the same international supporters and international non-governmental organisations may not support the move in view of the mood of the citizen and the mass briary and correction taking place under the current regime. Will the Chief Justice and the Supreme Court take part in the process as the appointments of the alleged courts created will have to be approved and ratified by the Chief Justice and the Judiciary is the million dollar question. What are the urgent needs of the masses? Is it not draught, floods, damages caused by manmade and natural disasters, “Samurdi”, cost of living, destruction of the environment, rise of underworld and drug menace with spread of HIF at speed with disasters faced by the young due to mismanaged by Facebook and other social media, fast spread of poisonous and downgraded consumer items, find those responsible for the two main robbers Vat Scam and Bond Disaster that has shaken our economy with bribery and corruption by the previous and the present government, sale of our silver for day to day existence, a vision for the Nation with polities for trade, economy, foreign policy, rather than setting up special tribunals  by converting Sri Lanka once a model democracy in South Asia a Banana Republic, consisting of most privileged legislators enjoying privileges unparalleled to any other system in the world - yet the most corrupt mafia acting together shedding political and other differences with all political parties as proved in vehicle scams and unresolved bribery and corruption charges. It is still not too late for the legislators to be sensible to work together with one goal for peace and peaceful nation with development and prosperity free from bribery and corruption – the main enemy of the Nation. We prey they will be sensible at the last hour of self-destruction. 

(The writer is a Solicitor/Attorney-at Law and former Ambassador to UAE and Israel. He can be reached via [email protected]/077880166.)