| by Basil Fernando
(
December 28, 2012, Hong Kong, Sri Lanka Guardian) “The court system is skewed
against ordinary folk,” says Malinda Seneviratne, writing a comment on my last
article. His argument is that the people will not defend the courts as the
court system is skewed against the people. However, people do have a reason to
defend even the highly inadequate and problem ridden justice system as it
stands now, rather than having a system that is totally controlled by the
executive.
During
the last twenty years, I have written almost daily about the defects of the
existing judicial system in Sri Lanka and repeatedly demonstrated that the
system is mostly dysfunctional. I have also reported on literally thousands of
cases of torture and ill-treatment to demonstrate how deeply flawed our system
of justice is. Such argument was made not for the purpose of having the system
abolished, but rather to have it improved. What the people demand is an
improved system which fearlessly defends the people against the powerful forces
and against the authoritarian assaults to their dignity and their liberties.
Why the system has been defective is due to very many reasons, but the most
important reason is heavy interference of the government against the
independent functioning of the system.
This
may be illustrated by one of the cases we have supported. This is the case of
the torture and the murder of Gerald Perera. After his arrest on a mistaken
identity, he was severely assaulted, which caused kidney failure. On the basis
of his complaint, two cases were filed against the police officers who tortured
him. In the fundamental rights case, the Supreme Court held that the police
have in fact tortured him and violated his fundamental rights. The Supreme
Court awarded the highest compensation to date, both for medical expenses in a
private hospital and as compensation for injuries.
The
Attorney General thereafter filed a criminal case against the police officers
under CAT Act No. 22 of 1994. A week before Gerald Perera was to give evidence
at the Negombo High Court, he was shot dead on a public bus. The first accused
in a torture case and another person were indicted by the Attorney General’s
Department for the murder of Gerald Perera and this case is still pending
before the Negombo High Court.
In
the criminal case for torture, the Negombo High Court made its judgment after
several years and acquitted all the six police officers, despite its finding
that these officers arrested Gerald and that torture had taken place inside the
police station. This verdict of the court was challenged by way of an appeal
and the Court of Appeal gave its verdict on October 2012, altogether ten years
after the incident, holding that the High Court judge has erred in acquitting
four of the accused as there was adequate evidence against them for conviction.
The Court of Appeal ordered retrial. Now these officers have filed an appeal in
the Supreme Court against the Appeal Court verdict.
Looking
from any reasonable point of view, it is obvious that the torture, murder and
prolonged and undue delay are serious defects of the justice system. There is
enough data gathered through this case to criticize very many fundamental flaws
in the system.
In
almost every other case, in the more than thousand cases we have reported,
similar and even more glaring problems can be pointed out.
However,
does that call for the annihilation of the system? That is what the executive
controlled system means. That is not what the widow of Gerald Perera and all
who supported him are demanding. They demand a more efficient system of
justice.
The
contrast can be explained by way of examples from countries where the court system
is under the control of the executive.
Cambodia
Around
1992, the United Nations Transitional Authority for Cambodia opened, among
other things, a human rights office where people could come and make their
complaints about human rights abuses. As a senior officer, I had occasion to
record many such complaints.
One
complaint was from a man of about forty, who said that his father, mother and
two other family members had been kept in prison for about six years. When
asked for the reason for their incarceration, he said that his wife had
committed suicide but the commune police had taken the entire family under the
suspicion of having murdered this lady. When asked why he, as the husband, was
not taken by the police, he said that he was out of town that day and the
police took only the persons who were in the house on suspicion. When asked
whether anybody had investigated into the matter, he said yes, and mentioned
that the person who did the investigation is now the prosecutor of a
neighboring court.
I
visited this court the next day and met this prosecutor, and explained to him
the purpose of my visit, which was to look into the complaint made by this man.
He put his hands together in the form of traditional greeting and told me,
“Please help this family and if you can get them out you will go to heaven”. I
replied to him saying, “You are the prosecutor, so why don’t you take the steps
to release them, since you have come to the finding that this was a suicide and
not a murder?”
The
prosecutor replied politely, “Sir, you do not understand and you have no idea
about our system at all. In our system, I do not have the power to recommend
the release of prisoners once the police or military bring them and put them in
jail. Not just me; even if you go to the judge, there is nothing that even the
judge can do to release them. The police and the military control this whole
system”.
Then
I asked him for his advice on the way to get this family released. He said that
perhaps we could go to the governor of the province and make a request. We
accordingly went to the governor’s house and discussed the matter with him. He
said he was fully aware of the case and that the prosecutor we talked to was
his uncle. But there was nothing that he could do. After much discussion, he
was persuaded to take the matter up with the head of the state himself. After
about six months, the head of the state made an order for their release.
That
is an illustration of a system controlled by the executive. Judges in such a
system do not enjoy judicial power. They are just servants of the executive and
all power belongs to the executive. Many such examples can be cited from what
we came across in Cambodia.
Myanmar
A
similar situation of total control of the judiciary took place in Myanmar after
General Ne Win in 1962, and for most part this system is intact even up to now.
It is only during the last few months that there has been some loosening of the
rigor of the system. However, even now, as far as the courts are concerned,
they are controlled by the military administration.
Within
the last few months, I have had occasion to meet with and have discussions with
many lawyers and human rights activists from Myanmar. In a weeklong meeting we
had with a group of twelve persons, there were persons who had been in prison
purely due to things that we would not consider criminal acts at all. For an
example, one senior lawyer’s proxy was withdrawn by a client on the ground that
the client had lost faith in the court. The lawyer was imprisoned and his
license to practice as a lawyer was removed for allowing the client to withdraw
the proxy on that ground. There was a young lady who had been sentenced to
prison for 65 years for sending some emails in support of some protest. She was
released after four years due to a general amnesty given due to some political
changes. On all such matters of arrest, detention, imprisonment and torture,
there was nothing that the courts could do to help anyone. The idea of fair
trial has disappeared altogether.
It
is true that the torture, murder and serious delays in Sri Lanka’s court
system, as manifested in Gerald Perera’s case and others, are extremely bad.
However, that is not to say the situation is the same as in Cambodia or Myanmar
as explained through the incidents cited above. The distinction is between a
defective system where judicial power is still enjoyed by judges and another
kind of system where the judges are mere agents of the executive.
The
people in Sri Lanka do want a better system of justice; they naturally do not
want a worse system. The demand of the people is not for the executive to take
the judicial system under its thumb, but for the executive to provide the
necessary funds and other resources so as to enable the judicial system to
function better. What people of any democracy want is not a less independent
judiciary but a more independent judiciary.
Hong
Kong
In
Hong Kong, where I live, it is not even possible to imagine a situation similar
to Gerald Perera’s case or other instances mentioned from Myanmar and Cambodia
happening at all. The independent judiciary is one of the systems that is
highest valued and appreciated by the people. This has made the judiciary
capable of playing a supervisory role over all other institutions, such as the
police, the corruption control agency – which enjoys the confidence of the
people – and the civil service. In the recent decades, Hong Kong has earned the
reputation of a place where bribery has virtually been eliminated. The
functioning of the rule of law system heavily depends on the role played by the
judiciary.
Impeachment
The
reason why there is resistance against the impeachment move is because of the
manner in which it was done, which undermines the independence of judiciary.
The aim of the impeachment is, as senior lawyer S L Gunasekara has said, to
create a stooge judiciary. This is not what people want.
People
want a judiciary that can protect them against illegal arrest, illegal
detention, torture and ill-treatment, and which can assure them a fair trial.
People also want the judiciary to be able to protect their property from those
who wish to grab their lands or to profit by way of corrupt means. They would
certainly want a judiciary that is able to stop abduction and forced
disappearances. Naturally they would want a judiciary that is able to prevent
undue interference of any sort against their basic freedoms.
Thus,
to use the frustration that people have against the flaws in the judicial
system now to justify further interference with the independence of the
judiciary is distorted logic and certainly not an attempt to promote the
interests of the people.
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