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Wednesday, 5 February 2014 00:01 - - {{hitsCtrl.values.hits}}
Last week at the Colombo General Cemetery we attended the funeral of Justice S. Sri Skandaraja, the President of the Court of Appeal. Several hundred mourners braved the mid-day sun to salute the memory of a man who had given a lifetime of service to the legal system of this country, a good number of those years as an employee of the State.
A simple God-fearing man whose conduct best epitomised, at least in respect of one case before him, the famous Latin legal phrase which translates to “let justice be done though the heavens fall”; in other words, justice must be realised regardless of the consequences.
Controversial affair
That case was of course the epoch defining matter of the former Chief Justice Shirani Bandaranayake who had moved the Court of Appeal for an order of Certiorari and Prohibition to quash the findings of the Parliamentary Committee on the basis of a) failure to adhere to rule of law, b) breach of rules of natural justice, c) unreasonable, and/or capricious and/or arbitrary action and d) prejudging the issue. An Appeal Court bench which included Justice Sri Skandaraja issued the writ as prayed for and as they say the rest is history.
As to be expected when the legislature of a country moves to remove its Chief Justice, it was a controversial and very public affair. Many an opinion, most with circumspection, but some more loudly, were expressed in the country about the justness of the allegations against the former Chief Justice and the procedure adopted to remove her.
Justice Skandaraja perhaps thought the procedure faulty. Whether that judgment of the Court of Appeal was what the ideals of justice dictated in the circumstances will have to await the verdict of the court of history.
The idea of justice
It is clear that the idea of justice as it has evolved in advanced legal systems is not a matter for small men with mean minds. A country where vigilante justice is administered routinely cannot claim to have a rule of law. Even the blackest serial killer is entitled to the best of the system in his defence. The law is firm but is also fair. While the wrongdoer may finally be found guilty, both he and the observing public will have no doubts that the judging process was infinitely more civilised and superior.
Such standards are not totally outside of our social/historical experiences. One case which we are able to point to proudly is the well-known Bandaranayke assassination case, which was heard in 1961. Following the foul assassination of the popular Prime Minister, his widow Srima Bandaranayake had become the Prime Minister by then. In the committal (non-summary) proceedings before Chief Magistrate N.A. De S.Wijesekera, there were seven accused persons. One Dickie De Zoysa was also produced in court but was discharged before the proceedings began. In the course of the non-summary one of the accused was given a conditional pardon and made a crown witness. At the end of the magisterial inquiry accused Wimala Wijewardena was discharged by the magistrate.
At the trial before Justice T.S. Fernando in the Assize court, the crown case was represented by G.E. Chitty Q.C. while the first and second accused (Buddharakkita and Amarasinghe) were represented by Phineas Quass, an English silk. The other accused had very capable legal teams defending them. At the end of the lengthy trial the jury were unanimous about the guilt of three of the accused (Buddharakkita, Amarasinghe and Somarama), while finding accused Anura De Silva not guilty. In respect of accused Newton Perera, the jury was divided with a majority finding him not guilty.
In his concluding remarks George Chitty QC who led the prosecution team complimented his formidable opponent Quass QC in the following words: “Mr. Quass came here as a stranger to the bar, but he is a stranger to us no more. We have had a few sharp exchanges across the bar table, but breezes in court are inevitable in a trial of this nature. In the few months he had been in our midst he has become a good friend to us all. I wish to say farewell to him in the Old Testament sense of ‘fare thee well…’”
To the other defending lawyers too Mr. Chitty was gracious: “From Mr. Weeramantry I have learnt that it is more interesting to travel hopefully than to arrive. From Mr. Shinya I have learnt that that if one approaches a difficult task with a show of light-heartedness and good humour, one can create the illusion that the task is an easy one. Mr. Satyendra has demonstrated that youthful enthusiasm can go a long way with an almost frightening kind of competence…”
After the jury verdict was handed down Justice T.S. Fernando addressed the accused in the following manner: “You Mapitigama Buddharakkita by the unanimous verdict of the jury have been found guilty of conspiring to kill Mr. Bandaranayake... I do not wish to harrow your feelings any further than say that being a Buddhist myself I never thought I would have to perform the painful task of passing the sentence of death on a Buddhist monk… You H.P. Jayewardene have just heard the unanimous verdict of the jury that you too were a party to the conspiracy which sent a man so beloved by his people to an untimely death. There is nothing further that I need to say to you… You Anura De Silva you have just heard the foreman’s verdict that you are not guilty… You Somarama who appear to have been the instrument of the conspirators, wore a hallowed robe at the time of the commission of the crime… By a divided verdict of the jury you Newton Perera have been found not guilty. You owe your life to the labours of your counsel. By your own showing you are guilty of conduct unbecoming of a Police officer. You should not disgrace the Police force by remaining in it a second longer…”
Life vs death
In the appeal hearing before the Court of Criminal Appeal , E.G. Wickramanayake QC appearing for the appellants raised a question of law referring to the substitution of life imprisonment for the death sentence by the Suspension of the Capital Punishment Act of 1958. Although soon after the assassination of the Prime Minister this Act was repealed by the Parliament with the intention of reintroducing capital punishment, no express provision was made in respect of the offence of conspiracy to commit murder.
It was argued that the Interpretation Act is clear on the requirement of an express repeal, in the absence of which the original situation prevails. The Court of Criminal Appeal agreed with this argument and the sentences of Buddharakitha and Amarasinghe were accordingly made into imprisonment for life. The Privy Council to which the accused appealed did not alter the convictions either. Later the Government of the day sought to present a bill reintroducing the death sentence for the offence of conspiracy to murder but ran into such a storm in the Parliament (from both sides) that it abandoned that ill-advised effort.
Search for justice
That was fifty and some years ago. We then had English speaking juries which due to irreversible developments gradually faded into disuse. The concept of trial by a jury which came to us with European legal systems inevitably led to vernacular juries. Our courts seem to have abandoned juries altogether now, perhaps subsequent experiences proving them meaningless.
The costs of criminal investigations and trials have become so prohibitive that most jurisdictions now look for expedient methods of case disposal. But certain countries can not only afford but also think that justice is a fundamental tenet of its existence.
Recently in the State of Arizona USA there was the much-publicised case of Jodi Arias, a former waitress. She was accused of murdering her boyfriend Travis Alexander in a brutal attack in his apartment. The State provided her with a defence team and also met the expenses for all her witnesses including expert witnesses. The bill footed by the State of Arizona for the defence of the accused woman alone in now estimated at about US$ 2.5 million. Jodi Arias still has several appeal options open and of course the State will provide for all that.
When we add up the costs of the investigations, prosecution, judicial, security, custodial facilities and so on, the cost should be hitting something between 10-20 million dollars. And this is just one case in a society which takes the idea of justice as crucial and therefore every cent spent in the search for justice is money well spent.
Sri Lanka
As much as Arizona is not Sri Lanka, 1961 was very different to what we have become today. The Latin phrase about justice being done even if the heavens fall is sometimes attributed to a belief of the time that the sky may actually fall on one’s head if the gods of ill-fortune so decree.
It may be that the concentration of power and its unfettered ability to either reward or punish in present day Sri Lanka has made most of us to view that eventuality as a real possibility now. By its scope and design the judicial system is a creation of certain social values and sensibilities. To function effectively the edifice requires independent men of learning, skill, integrity and courage. In a diminished society these are not attributes found abundantly.
Perhaps it was so fated that Justice Sri Skandaraja was to be on a bench that had to decide on doing justice even at the risk of the heavens falling on them. But in making that decision he has surely earned a right to an honourable mention in the court of history, of course sitting a healthy distance away from the loud and gaudy happenings of the day.
