It’s
a mischievous headline, admittedly. Citizens are not taking the judges
to court. And, even if that happened, the simple matter of
interest-conflict would force all judges in all courts to recuse
themselves from entertaining such a petition.
We don’t have a
perfect judicial system. Neither is it as horrendous as some have
claimed it to be. Those in the legal profession, the judges themselves
and citizens from all walks of life, however, would not doubt
unanimously claim that improvements are in order.
Now ‘The Ills
of the Judiciary in Sri Lanka’ could be the title of a doctoral
dissertation. A capture-all comment is impossible. We can but flag
certain (and not all) issues that require urgent attention from relevant
authorities.
We can talk about the entire process of
appointments and promotions. We can talk about the way political
loyalists are promoted or shifted from the AG’s Department to either the
Court of Appeal, Supreme Court. We can lament the fact that the 20th
Amendment removed the ‘say’ of civil society via the Constitutional
Council. We can lament that the 19th, which instituted the
Constitutional Council couldn’t stop loyalists being favored and the
fact that the CC and the so-called independent institutions in fact
colluded with the regime in appointing such people. One could argue that
this allowed excellent students of the law to bring that expertise into
judicial deliberation but it is also true that this doesn’t stop the
judicial equivalents of Professor James Moriarty (the arch-enemy of the
fictional detective Sherlock Holmes upon whom the author conferred a
mind equal to or even better than that of his hero) holding the post of
Chief Justice. The AG’s office as half-way-house for a judicial career
is wrong. This too can be discussed.
We can applaud President
Gotabaya Rajapaksa for doing what the Constitutional Council and the
Yahapalanists were loath to do — recommending the senior most judges for
promotion to the Supreme Court. We can celebrate this as a good
precedent which makes it harder for his successors to do what the
Yahapalanists did. We can however offer caution: it is always worrisome
when such things are dependent on the wisdom of the ruler, for we’ve had
all kinds of executive presidents whose CVs we needn’t unfold here to
prove the folly of sanctioning such discretion.
We can
resurrect President Rajapaksa’s ‘One Country, One Law’ rhetoric as well
as the notion of ‘Inclusive Nationalism,’ and ask what’s being done on
this. We can bring up, in this context, the Muslim Marriage and Divorce
Act (MMDA) and ask Justice Minister what’s stopping him from
amending/repealing it in line with party rhetoric.
We can
discuss the merits and demerits of adversarial and inquisitorial systems
of justice, about which the following observation was made two years
ago in this column: ‘The formeris we have whereas the latter was what
we had. Both target justice but whereas one does not care of social
fallout, the other does. The argument for retaining the current system
is essentially a product of conservatism and sloth, not to mention the
fact that it is remunerative to the key stakeholders in the system. So
we have come to this: this is what we have and this is what we will
always have; we could only, at best, tweak things a bit. Are we that
poor, though? That’s a question that needs to be addressed.’
And
we can and must talk of delays. There are obviously many other
categories of infringement. They are different from one to the other,
even within categories. One commonality is delay. Inordinate delays is
so common that the entire system and the process can on this point alone
be described as designed to make mockery of the adage ‘justice delayed
is justice denied.’
The salaries of judges were raised a couple
of years ago, in some cases to the tune of a 250% increase. Perhaps
this was an incentive to get things moving. However, delays remain, land
cases for example taking on average over 30 years. Court vacations
(originally declared to allow British judges to go home to see their
families) are a part of the problem, but that’s only part of the story.
We can get rid of the colonial remnant and still have delays.
On
Tuesday (November 24, 2020), the Batticaloa Magistrate granted bail to
former Eastern Province Chief Minister Sivanesathurai Chandrakanthan
alias Pilleyan who was arrested five years ago (October 11, 2015) over a
charge alleging involvement in the murder of Batticaloa District TNA
parliamentarian Joseph Pararajasingam. No trial. This is also true of
suspected LTTE cadres.
They are/were held under the Prevention
of Terrorism Act (PTA). If one abided by the adage ‘innocent until
proven guilty,’ these people have to considered innocent. It is prudent
to err on the side of caution in the case of suspected terrorists, but
that is not a license for indefinite detention. What if courts rule one
day that such an individual was in fact innocent? That’s years of a life
being robbed. You cannot put a rupee-value on lost years, not to
mention the trauma of years of suspicion and abuse by irresponsible
sections of the media which confuse allegations with guilt.
Take
the case of Hejaaz Hizbullah, arrested on April 14, 2020 on the basis of
phone calls made to Inshaf Ahamed, the suicide bomber who attacked the
Cinnamon Grand Hotel on Easter Sunday 2019. Hizbullah was the lawyer
representing Ahamed’s family in a couple of cases and claims that he has
had conversations with Ahamed in relation to litigation over a land
issue. That’s association, but essentially a non-sequitur. For the
record, even Justice Minister Ali Sabry has represented the same family.
It simply ‘does not necessarily follow.’ Reason enough, given the
enormity of the crime, for caution, but not an excuse for sloth in the
judicial process.
Hizbullah’s case is not being helped by NGO
hordes who, finding themselves in reduced circumstances after the defeat
of the Yahapalana regime have to badmouth the regime at every turn to
buttress its tall tales of dictatorship, majoritarianism and rights
violation. They’ve done the accusation=guilt number long enough and now
find themselves on the flip side of that story. It simply rubs people
the wrong way. On the other hand, the President, who claims he’s not
just another politician, should not allow such things to color reason.
He should realize that this is in fact the flip side of the NGO number
referred to above. Use when convenient, decry when not is not good
politics and Gotabaya Rajapaksa would do well to do a think on this.
I
presume Hejaaz Hizbullah to be innocent. I would not be happy if indeed
he is innocent and several years of his life is robbed on account of
‘suspicion’ and/or consideration of political expediency. It has
happened before, it can be argued it is happening even now and it could
happen in the future too. That’s ‘precedent’ and no citizen is immune to
what could amount to persecution. If he is guilty, the court must
determine so. Court could go soft on the sloth of prosecutors, but that
would detract from the citizens’ confidence in the judiciary to be fair
in the affirmation of justice.
Appointments, promotions,
constitutional reform that corrects systemic error and accommodates
promises voted for, fair and reasonably fast determinations need to be
addressed. Citizens vs Judicial system is not a case that can be filed
in any court. However, the title alludes to the fact that systems are at
odds with citizens.
malindasenevi@gmail.com.
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