Opposition's vitriolic attacks on judges:

Let's not strengthen hands of evil forces

By Prof. G.L. Peiris

One of the fundamental problems in the country with regard to the administration of justice is the long delay that occurs in dispensing justice.

The introduction of this legislation is one of several measures which the Government is taking in order to address this problem. In 2006 the Provincial High Courts were vested with appellate civil jurisdiction. At that time there was a backlog of more than 5,000 cases.

Then, in 2007 action was taken to increase the number of High Court Judges from 40 to 60. Today we find that even that number is insufficient and the purpose of the present legislation is to increase the number of High Court Judges as the Minister of Justice explained, from 60 to 70. I think some other measures are necessary in order to achieve this objective and I am aware that the Minister of Justice is giving his attention to further reforms in this field.

Reforms

One of the desirable reforms, would be to put in place certain pre-trial procedures in order to identify the essential issues to cut down drastically the time that is spent in Court addressing these matters.

That method has been very successful in other countries and I think Sri Lanka at this stage of our development can benefit very substantially from the introduction of properly structured pre-trial procedures and I am very happy that the Athauda Seneviratne is giving priority to formulating a systematic policy in this regard.

There is one other matter which I would like to refer to. Perhaps more than 50 per cent of the Judges serving the Republic today have been my students when I was a Professor of Law. I would like to say that the vast majority of these persons are men and women of the highest integrity who, according to their conscience, are trying to do a difficult job.

It is a matter for deep regret that in the recent past there have been vitriolic attacks on judges on the floor of Parliament. I think this is profoundly unsatisfactory, for several reasons. The first reason is that these are people who do not have the right of reply here.

Their reputations are tarnished beyond repair. This involves a large measure of personal hardship and injustice. But, apart from that, apart from the anguish that is sustained by individuals, this has a far wider dimension which affects the vital interest of Sri Lanka at this time.

If we denigrate our judiciary, if we attack our judiciary, if we lower the judiciary of this country in the esteem of Sri Lanka's people, then, that is a course of action which has very significant international repercussions.

Those persons who are trying to do harm to this country will then use that situation in order to argue that international tribunals should step in because our own judiciary is inadequate and it is corrupt.

All the allegations that have been made here will only strengthen the hands of those forces who wish to do this country very serious harm at this time.

Particularly because of my background as a teacher of law I have taught judges when they were reading for the Degree of Bachelor of Laws.

I have also taught many of them when they were candidates for the Master of Laws Degree and Judges of the Supreme Court and Judges of the Court of Appeal including the Chief Justice have been my students.

I think it is my duty as their teacher, not so much as a Cabinet Minister, to say that irresponsible and vicious attacks on the judiciary apart from being harsh and unjust with regard to the individuals concerned, would also inflict a very substantial measure of damage on the reputation of this country, which will serve the interests of none other than the people who wish us ill, who want to attack this country, who want to strengthen forces that are opposed to the well-being of this country and that is a course of action which Members of Parliament, whatever party they may belong to should in my respectful submission desist from. So, I would like to make that point with emphasis .

National interest

I would also like to deal with some other issues which are of very considerable public importance at this moment and they warrant the attention of this august assembly. It is a matter for deep regret and these are issues that straddle boundaries between political parties.

They impinge vitally on the national interest. Today, languishing in our prisons, in remand custody, are a very large number of people who have lost their freedom for no other reason than their poverty. They have been condemned to pay fines.

They do not have the financial resources to pay those fines and the reason why they are deprived of their freedom is that they do not have the money to pay fines. Even in my time as Minister of Justice, I found the situation deplorable.

Today, it is much worse,I think there must be an attempt to formulate certain criteria with regard to sentencing. In any case, I think it is very unsatisfactory to put a person in remand jail only because he cannot pay a fine.

Yes, I think suitable measures have to be found to deal with the situation. I am not talking of a few people I am talking of a very large number who are clogging up the prisons.

Yes, exactly and this is contrary to all the principles of sentencing policy. It is contrary to basic principles underpinning the administration of criminal justice. It criminalises people.

They are brought into close association with hardened criminals and what is most important is the social repercussions on the family. It is not so much the individual but the family that is punished.

The family is deprived of resources for their mere subsistence. The wife suffers the children suffers and the social consequences are horrendous. So, this is a matter that calls for urgent attention and I would strongly urge that all of us together, irrespective of party differences, should address this as a national issue and find pragmatic solutions to alleviate the hardship of persons who have lost their freedom simply because they do not have the money to pay the fine.

Privacy of children

It is also necessary, to address specific issues connected with children who find themselves as witnesses as plaintiffs or as defendants in criminal proceedings.

Particularly given the culture of Sri Lanka the harm that befalls them may last throughout their lives. It is therefore necessary as in some other countries, to find other ways of dealing with these situations without bringing them to court, without subjecting them to cross-examination special procedures which respect the privacy of the child, procedures which give priority to protecting the reputation the good name of the child in order to make sure that the future of that child is not jeopardised in any manner whatsoever.

Then, some other matters are worth thinking about. One of these is the frequent complaint that there are too many acquittals in our country.

It is sometimes suggested that it is difficult to control the spread of crime because it is only in a very small number of instances that persons who are indicted for serious crimes are actually found guilty and the argument is that the number of acquittals is unacceptably high.

During the long period when I served as a Member of the Law Commission of Sri Lanka it was more than 10 years when I was Professor of Law of the University of Colombo at that time Mr. Speaker I made sustained efforts to bring about certain changes in the Law of Evidence.

Confessions

I think most people would agree that there is no logical reasons to exclude confessions which are true and which are voluntarily simply because those confessions were made to a police officer.

If a man commits a crime and of his own accord without any duress without any pressure or inducement, he confesses that crime to a police officer or while he is in police custody, is there any logical reason at all why that confession should not be admitted as evidence against him? Unfortunately, the law of Sri Lanka in this regard has not changed since 1898.

The Evidence Ordinance was enacted in 1898, the Penal Code, the Criminal Procedure Code also belong to the Nineteenth Century. Sri Lankan society has changed fundamentally since then. But, in keeping with those changes we have failed to make corresponding modifications of the Criminal Law and the Law of Evidence in 1898, society's attitude to a police officer was basically different from what it is today.

I think therefore, these matters have to be elevated above the level of party strife and we have to take a long hard look at the nature of the laws that govern us.

We have to do that and at the same time we have to increase a number of judges. We have also to provide judges with opportunities for continuing training, especially in new fields like intellectual property, commercial law, land use and utilisation, sentencing policy. In countries of the West, even judges of the highest courts have the advantage of these programs of training from time to time. I think today it is a dire need in Sri Lanka.

Our judges are basically very competent. There is no doubt about it. I think our judges. I say without fear of contradiction. again as a teacher of these judges, that they can hold their own with their brethren in any part of the world.

Attacks

They lack nothing in terms of intellectual sensitivity and perception. But, we have to equip them we have to put at their disposal, the resources and the facilities that would enable them to discharge their responsibilities with total acceptance to the community.

That is why I am myself particularly perturbed about the tenor and the substance of some of the attacks which have been made on the Floor of this House against judges who have no right of defence.

And, it is precisely those attacks that are exploited with ulterior motives by those who wish to argue that the Sri Lankan judiciary is not working.

There is a lacuna, that vacuum has to be filled by the intervention of foreign tribunals. It is a dangerous path to follow and it is fraught with greater danger to the independence the good name, the integrity of the Republic of Sri Lanka.

We must today take an objective and dispassionate view of the manner in which the criminal justice system is working what are its good points, what are the deficiencies and shortcomings and what are the practical measures that are opportune today to deal with those issues and to get the country the benefit of the criminal justice system.

With those words, I would commend this legislation as exceedingly opportune and beneficial. I would like to congratulate my friend the Athauda Seneviratne, Minister of Justice and I would encourage him to go further along this road and to consider other reforms on the lines which I have indicatd.

The speech by External Affairs Minister Prof. G.L. Peiris in Parliament on Wednesday.