May It Please Your Honour

By N Sathiya Moorthy

Winding up the Budget debate in Parliament, Prime Minister Mahinda Rajapaksa pointed to higher allocations for recruiting more judges across the board (even under the stressed economic situation). He said that shortages of judges was one of the reasons for the (unacceptably) high number of prisoners languishing in prisons across the country, What he did not say was that in many cases, there was every possibility that the remand prisoner might have spent a longer term in prison as an under-trial than the maximum penal period prescribed for the offences with which he is charged.

On the question of prison, police and judicial fronts, all of which go hand-in-hand, , President Gotabaya Rajapaksa has named more judges in recent weeks. The Opposition had objected to some of them, but that is beside the point. What needs to be done is for the criminal justice system to be effective, there have to be more judges, and more court rooms and additional staff for those judges to function.

Then there is the other issue. Of perennial shortage of policemen. Many suspects are held back for want of enough cops to accompany them from police stations or the prisons to courts and back. In some cases, the suspects, especially if they are your typical ‘MO cases’ as policemen often brand those that deploy a particular ‘modus operandi’ and become a suspect all the time, are booked and are asked to come back whenever called.

Police reforms

At least a part of the problem lies with the system, which has grown with a militant situation since at least the JVP days and extended through the Tamil youth militancy, culminating in the LTTE holding the nation to ransom. Earlier, there was the failed coup attempt against Prime Minister Sirimavo Bandaranaike, which had triggered a law and order situation of a different kind, putting additional pressure on the police force.

For most part of the past many decades, the Police Force came under the Defence Ministry, and not the Interior Ministry, where it belonged. The priorities changed, and so did the approach of the police force, to crime and punishment – from petty criminals to heinous offenders, who fell outside the domain of terrorism and other forms of security-threat.

All of it has meant that at least two new generations grew up in the Police Force, with wrong and forced priorities. If the rule in the armed forces was to shoot first and ask questions later – which was fair enough under the circumstances – in the police, arrest first and interrogate later, became the norm. It made sense in a way, as if a police officer were to investigate and interrogate and then go in after the same suspect whom he had let go off, by then he would have flown the coop.

All of it meant that since the young Prabhakaran’s killing of police officer Bastian Pillai in the mid-eighties, preceded by similar JVP killings in the Sinhala South, arrest and jail suspects became the rule =- and not the exception. In many cases, the arrested person might have had nothing whatsoever to do with the crime, especially one of militant/terrorist intent.

But after a time, the number of incidents and arrests became overwhelming, so much so the police force did not have human resources to investigate the cases impartially and free those that needed to be freed. With the result, innocent youth, ended up becoming hardened criminal, owing to the failure of the State to give them a fair investigation and the courts, a fair trial, again for want of courts and judges, on occasions.

Criminal Justice system

What thus may be required, full 11 years after the end of the conclusive Eelam War-IV is police reforms. Maybe, the Rajapaksa government can begin with the appointment of a Police Reforms Commission, with a mandate to come up with specific recommendations to ensure all-round improvement in the functioning   of the police force. Such reforms should include prison reforms, remand-prisoner handling, and the like.

Needless to mention, the mandate should also include police recruitment and training, including periodic psychological training. More importantly, the Commission, if appointed, and political parties and the civil societies should put their head together to check political interference at all levels. This one is a tall order to achieve, whichever party or leader is in power

But without it, nothing else is going to work, to be able to restore the credibility of the criminal policing and justice system in the country. It is in the absence of it that the ‘international community’ (IC) has felt emboldened to demand an independent outsider mechanism to investigate and adjudicate ‘war crimes’. Whether or not war-crimes become an international or a national issue in the future, credibility of the domestic system would have helped matters, very long ago. Sad that the predecessor GNU dispensation too did not look at police reforms.

But then, the state of the criminal justice system in the country will not and cannot improve unless the judicial processes improve. Maybe, a Judicial Reforms Commission, too, may be in order. It could suggest ways and means to improve judicial appointments, training and elevation – and set criteria for promotions and transfers. It could also be mandated to recommend amendments to the penal and criminal procedure laws in the country, or suggest brand new pieces of legislation, in tune with the times. Or, a third commission on Criminal Law Reforms could well make the difference.

When the writ runs…

Participating in the Budget debate for the Justice Department, M A Sumanthiran of the TNA, a President’s Counsel himself, took up an aspect of judicial functioning in the country, which is seldom discussed either inside Parliament or outside, or inside the courts or outside.

In line with the TNA’s recent delineation of criticism of the Rajapaksa dispensation, the State and Sinhala-Buddhist hard-liners in relation to the ethnic issue, Sumanthiran made a positive reference to senior Minister G L Peiris’ suggestion for conferring writ jurisdiction on lower courts, too. Handling Education portfolio, given his past experience as an academic and Vice-Chancellor, Peiris, as is known, is a constitutional expert in his own right.

Sumanthiran welcomed Prof Peiris’ suggestion, and agreed with the Minister how most fundamental rights cases, to which writ jurisdiction is applicable, pertain to lower levels of governance, and relate to the common man, mostly in some remote corner of the country. For him or his family, as the case may be, to move the higher judiciary with a writ petition relating to a fundamental rights issue, is a costly proposition. People thus end up languishing in prisons, or keep waiting outside government offices, if it is a civil matter.

It is a suggestion, where there may be equal reservations and qualifications for conferring writ jurisdiction on lower courts. But it is worth a national debate, where the Bar Association of Sri Lanka (BASL) and other lawyers’ fora  should get involved – and also engage among themselves and with the Government. For instance, if lower courts were to get writ powers, then, both the Judges and lawyers, both civil and criminal, at those levels, too need to be equipped, re-oriented and re-trained from time to time.

What however made for an interesting proposition is Sumanthiran’s reference to the Supreme Court of Sri Lanka not setting out, and not having to set out, the reasoning behind its rulings on many fundamental rights petitions. He said if the lower courts were empowered to entertain writ petitions, then the Supreme Court’s ruling would be a guiding force, their reasoning all the more valuable. What more, the Supreme Court should also end up hearing appeals from the  fundamental rights petitions disposed off by the lower courts.

Even without it, Natural Justice demands that the loser in a writ plea before the Supreme Court gets to know the reasoning, whether or not the winner wants to know the how of his judicial victory. For the Supreme Court to begin setting out the reasons for its rulings in writ petitions could begin here and now, there may be no need for a constitutional amendment. Their Lordships alone need to change their practice, or their institutional tradition, or both!

(The writer is Distinguished Fellow and Head-Chennai Initiative, Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: [email protected])

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