Justice delayed is justice denied

by Justice P. H. K. Kulatilaka

[Part 2]

Apart from the increase in the number of new cases that are added to the trial roll with the introduction of direct indictment to the High Court the other factor that troubles court is the backlog. These are cases which are trial ready lying untouched due to various reasons. These factors have a crippling effect on the effective functioning of High Courts.

To substantiate my point I cite a few cases. In H.C. Kurunegala Case No. 2571/2007, a charge of grave sexual abuse by the father, eight years have lapsed from the date of the crime but the trial is still pending, the reason being that the complainant mother is evading court.

In H.C. Balapitiya Case No.691/ 04, the crime date was December 4, 2001. The child was seven years old then. The case was concluded only on November 16, 2011. In H.C. Kalutara Case No. 373/14, the January 20, 2002. The child was 12 years then. When the case was concluded 11 years had passed.

A study carried out by the Lawyers for Human Rights and Development in February 2012, shows that out of 107 cases they looked up only five cases had been concluded within three years from the crime date; 70 cases had taken more than seven years; 31 cases had taken more than nine years.

Perpetrators

Inordinate delay always stands to assist the perpetrators to get away with their crimes. The poor victim is forced to suffer in silence. It is a crime. Some of the telling effects are as follows:

By the time their trials were reached child victims of 16 to 18 age group were married women [often with children]. They either evaded Court or went back on their statement to the police. This attitude is understandable because they did not want to sacrifice or harm their marriage or were scared to face another ordeal in court.

May be they did not want to suffer many indignities at the hand of the defence lawyer. At the end of the day the accused went scot free.

There had been cases where the victims who had answered summons and willingly testified but made material contradictions in their evidence owing to forgetfulness due to passage of time. The trial judge had no alternative except to acquit the accused,

Cases where the long delay in bringing the accused to trial was pleaded as a mitigating factor and the trial Judge decided to give a suspended sentence ignoring the mandatory minimum prescribed by the statute, exercising his judicial discretion as was permitted in terms of the Supreme Court decision in S.C.No. 03/08,H.C. Anuradhapura Case No. 333'04. H.C. Avissawella Case No.149/04 [supra]is a case in point. What the abused rape victim could do is to suffer in silence. She wouldn't know what went wrong.

In this context it is necessary to identify the police divisions where the incidence of child rape and grave sexual abuse is high and also the High Courts where the volume of trial cases is heavy and set up fast track Criminal High Courts. Apart from such a mechanism the authorities in consultation with the judiciary should seriously consider any other means of disposing these trial ready cases expeditiously. My suggestions relating to changes in the substantive law to deal with this menace will come in the next article.

The writer is a former Director of the Sri Lanka Judges Institute. (Concluded)