Sunday Times 2
Reforming the Criminal Justice System and bringing it closer to the people
Fifty years ago, when I was a public servant in the Kurunegala district, we went on circuit to a remote village. This was the time when the government had embarked on a food production drive assuring farmers of guaranteed prices, supply of seeds and fertilisers and other inducements to increase food production. We had a meeting in the village to find out how the food drive was proceeding.
Book facts: Criminal Justice System Sri Lanka – A Review of Current and Future Needs By Frank De Silva Published by Stamford Lake (Pvt) Ltd. 180 Pages; Price Rs.950
Villagers almost unanimously said that what was even more important to ensure higher levels of production was the maintenance of law and order in the village. They said their highland crops like vegetables and bananas were being robbed and that there was no incentive to go on growing these crops. What they needed most was some degree of protection by the police and bringing the culprits to justice. They were not anxious to go to distant Kurunegala to attend courts. What they needed was local systems of justice.
The book being reviewed deals with these issues. It deals with the same kind of issues that these citizens in a remote village have expressed in their own way. The Criminal Justice System (CJS) is an integral part of good governance.
Author Frank De Silva had a long career with the police ending up as the Inspector General of Police. He has written other books and he has, apart from his first degree, obtained many postgraduate qualifications especially in law. He is one of those few policemen who have an intellectual interest in the CJS, and his present volume is indeed worth a close study.
The volume has ten chapters addressing a range of issues within the CJS – the rule of law, the malfunctioning of the CJS, law’s delays, the role of the police, and generally the administration of justice. This volume comes at a time when the role of the CJS has become a central part of the discussion about the rising levels of corruption and the declining independence of judicial and police institutions in Sri Lanka. An interesting feature of the volume is that the author has allowed four or five authorities on this subject to make their own contributions and they are published in the book. Former Chief Justice G.P.S. De Silva, former Attorney General Palitha Fernando, former Deputy Inspector General of Police Douglas Ranmutugala, and Economist, Lawyer and Administrator H.P. Wijeyewardena have together made an important contribution to the elucidation of the key and critical issues raised in this volume.
The CJS which is now functioning in Sri Lanka dates back to the Colebrooke – Cameron Reforms of 1832. Cameron was the legal brains behind it, e.g. the introduction of the Penal Code. Broadly speaking, the judicial reforms of the time were an improvement of what had gone before. But there was a failure on their part to learn and understand from the local legal systems that prevailed and which remained closer to the people. The new system was not understood by the common man. They made law something remote from the people.
Leonard Woolf’s novel, ‘Village in the Jungle’, describes clearly the large gap between the administration of justice and those at the receiving end of the law’s outcome. There was no justice for the poor villager in this system. From that time on, the lawyers took the upper hand in this system of legal ignorance experienced by the ordinary citizens.
Even after independence, there was no major reform of the law and the legal system, to address these shortcomings. There was one notable attempt in 1972 with the Administration of the Justice Act, but that was largely nullified later on. It is a key argument of the author that various powerful lobbies — the lawyers and the police — have influenced the administration of the CJS for their own ends, and in the process forgetting the interests of the people.
The Constitution clearly states that the law is for the people, and legal administration should obviously serve that end. One cannot blame only these powerful lobbies for the malfunctioning of the CJS. Although the author does not say so, the main reason for shortcomings in the CJS is the failure of politicians to deal with these issues.
Sri Lanka has a parliamentary history of more than 70 years. When has Parliament debated these shortcomings of the system in any comprehensive way and addressed them? There have been occasional discussions with regard to individual pieces of legislation but there has been no comprehensive review through a Commission of Inquiry or through detailed discussions in the legislature. We have many research institutes dealing with economics but there are not very many, if there are any, which are looking into legal reforms and the development of the law. For all political parties, this should be a matter of priority. Political parties might find that including this subject in an election manifesto might make them more relevant and more popular.
The author addresses the issue of Law’s Delays. It is not uncommon to see civil and criminal cases going on for ten years in courts. Litigants have to suffer much injustice and spend significant financial resources. Is it not feasible for the judicial system on its own to rectify some of these injustices occurring as a result of law’s delays? Just to take up one issue, which is a continuing irritant to litigants. Is it not feasible for the judicial system to have a maximum time limit for any case coming up before it to end in two or three years? Delaying the implementation of the law is justice denied.
Although the author does not raise this issue, it is appropriate that in any revision of the CJS, the issue of legal fees and the number of lawyers practising in each court should be examined. In recent years there has been a large increase in the number of lawyers practising in the Courts. Are there now too many so that many lawyers find it difficult to generate a decent income? Those passing out of the Law Faculties need not always practise in the courts. Those who pursue a course in law need not look to the courts always and they can look into other forms of employment in public administration or in the private sector.
To bring the CJS closer to the people is one of the main objectives of the author. In pre-colonial days, Ceylon had a strong tradition of village tribunals. It is not feasible to go back entirely to that kind of system with an emerging modern economy. But it is certainly feasible to explore the institution of a new system of decentralised justice, drawing on the expanded university system in every district and province and utilising the talent of the large number of graduates who are passing out. These new capacities at the district level can be tapped to improve the CJS as well as the Civil Justice System and making law more approachable to the ordinary person.
This volume has brought back memories of my university days at Ramanathan Hall at Peradeniya in the 1950s. Frank De Silva was at Ramanathan Hall. Cyril Herath, another resident at the time at Ramanathan, also ended up as IGP. Douglas Ranmuthugala had a distinguished career in the police service rising to be DIG and later making a significant contribution to the reform of the police service in Papua New Guinea. Philip Perera, who was also at Ramanathan ended up as DIG. So Ramanathan Hall of my time was well represented in the
Sri Lanka Police Service.