Laws delays, rule of law and good governance

Justice delayed is justice denied

Saturday, 26 August 2017

William Gladstone said in the frequently-used adage in legal circles that justice
delayed is justice denied, which is applicable to the justice system worldwide.

We inherited English legal principles of presumption of innocence and application

of Rule of Law which means to act according to the existing law, expected to be
just and fair, and equality before law are some of the main guiding principles of
our legal system, which the world has rated high despite isolated black marks
common to the world in all jurisdictions.
The criminal procedure, civil procedure, evidence ordinance and most of the
legislation in practice in Sri Lanka are imported from the British and applied with
subsequent amendments which are alien, archaic and complicated to us in use in
a foreign language. In addition we are muddled with the Sinhala, Tamil and
Muslim personal laws and Roman Dutch Law on property matters.

The citizen has been suffering from the time the foreign legal system was
introduced in which one of the classic examples of miscarriage of justice is the
story of Sinudu in the story Baddagama by the historian Lenard wolf about a
case in deep down south Walasmulla in which the justice was meted with the
foreign language at the cost of the innocent villagers life and freedom which is
continuing in everyday in the maze of litigation every day.

Laws delays are worldwide and common to any jurisdiction. Law Society Gazette
in the UK complaints of a backlog of 63000 appeals pending and Vinods case in
India of the rape and killing of the 5 year child took 22 years with 36 witnesses
with ample similar examples in Sri Lanka. In Sri Lanka there are land/partition
cases that run to decades and generations. In Sri Lanka the hearing of a rape
victim and the murder sometimes take 15 to 20 years average. In the history of
Bribery cases only few have been successful so far despite the enormous funds
pumped and it is hardly heard in the media. Laws delays are frequent in western
jurisdictions despite modern trends and sophisticated equipments with sufficient
funds to the mechanism on delivery of justice. Best mechanism was introduced to
Sri Lanka by the act No 44 of Administration of Justice Act introduced by Hon Felix
Dias Bandaraneike who was unpopular among the legal profession for the ground
breaking reforms to expedite the justice system that was thrown away by the
legal profession headed by the eminent lawyer Dr. H. W. Jayawardna Q. C.
brother and the advisor to then President J.R.Jayawardena continuing the system
to benefit the privileged legal profession for exploitation of the litigant directly
responsible for laws delays, with other parties concerned mentioned in this
article. No short cuts as the solution. The Nation needs drastic legal reforms with
honest and genuine legislators. Or perish together.

Bribery and corruption has engulfed the legal system and all other branches of
governance as a major cancer
Bribery and corruption is cancerous rampant and all over as breath and air in the
system more deep rooted in the administration of justice and the court system
where anything is possible with bribe. 10% citizens are litigants who experience is
as a daily routine who has no faith the in the legal system and resolved to take
law into hands in resolving disputes. Oxford defines Bribery as fraudulent conduct
by those in power typically involving in bribery and the action or effect of making
someone something morally deprived. Corruption involves more than two or
more people enters into secret agreement to pay an inducement for an official for
securing for a favour or some deception in return, Bribery is an offence
punishable under penal code as far back as 1882 now incorporated as the briary
act 11 of 1954 amended up to 2012. Bribery according to the act is punishable In
addition to many other reasons of injustice and laws delays which are common all
over the world the main course for breakdown of law order and justice is Bribery,
corruption and inefficiency spreading fast as air. Civil procedure and the system
are complicated and needs complete overhaul of the law, procedure and the
outlook. Criminal procedure and the system is still complicated with the
dependence of Peace Officers, statutory bodies such as the departments assisting
technical support, Attorney General Department is overloaded with work with
lack of staff and facilities. It is a known fact that some partition/land/criminal with
appeal cases has taken generations despite taking steps to speedy completion.
Some murder and rape cases have taken decades when a child rape victim gives
evidence after 15 years and murder cases take sometimes 20 years when the
witnesses are dead and the productions have gone missing. These are not isolated
cases as it is the order of the day in day to day which is in the public domain. As a
test Bribery Commission was rejuvenated by appointing Mrs Dilrukshi
Wickramasinge - an energetic personality with lot of hopes and enthusiasm, and
a Commission was appointed to inquire into corruption by the previous
government with an honest and experienced secretary Mr Lacille de Silva and
the fate of both officers are still fresh in memory of the citizen always at the
receiving end. This proves that bribery and corruption to weak governance and
inefficiency. Quotation- but when you have bad governance the resources are
destroyed-there is illegal logging, there is soil erosion. I got pulled deeper and saw
how theres issues became linked to governance, corruption and dictatorship
Mathis Kenyan Activist. Unfortunately in our Parliamentary history there were
records of only three convictions on standard minor bribery charges. The recent
two cases are trivial on two asserts cases of Duminda Silva and
Sarana Gunawardena subjected to the fine of Rs 2000 with no other harm, in
addition to the conviction of Monnakulama M. P. during Hon. SWRD
Bandaraneikas premiership which is unique to the credit of then Prime Minister.
Today we have the most corrupt Parliament Mafia working together having
forgotten party politics to earn money collectively by illegally selling vehicle
permits at enormous profits with the loss of 3.1 billion to the citizen and more to
be exposed. Activist lawyer Nagananda Kodittuwakku has filed a case against 100
MPs in the Supreme Courts when Ravi Karunanayaka has resigned for a short
while, on the Mahandran/Alosyisis scam the citizen is conversant with and
continuing. Now the alleged wealth accumulated by the previous President and
Thadueen affair involving his wife is one of the main issues in the field of
bribery and Corruption as priority all well known to the public despite the Vat and
Bond Scams the highest public robberies from the citizen in the decade which is
still not resolved when the culprits are enjoying their accumulated wealth
apparently in Dubai.

Who is responsible for laws delays and not bringing offenders to justice without
delay?

Fingers are pointed at Minister of Justice, Attorney General, Legal Profession,

Bribery Commissioner, Legal System, inefficiency of the establishments, lack of
political will of the Minister to identify the Bribe takers and punish them outside
special procedure by setting up special courts and procedures adopting new and
special legislation and special procedure. A group of agitated members of the
legislature have made the main accusation to the Minister and AGs department
they believe are inefficient and do not do enough to bring the suspected
members of the last regime accused of bribery and corruptions by a group of
legislatures of the ruling party. Ministers response to the agitated colleagues is
simple, logical, legal and convincing. He said to the party group and the public
that, he is bound to adopt the due process, and to act legally and constitutionally
based on the guidelines and articles of the supreme law the citizens are bound to.
Judicial power is exercised through courts Article 4-(c) created and established by
law, and all persons are equal before law Article 12(1) and No citizen shall be
discriminated against on the grounds of political opinion 12(2) nor can subject to
disability, restriction and every person is presumed to be innocent until he is
proved guilty Article 13(5), and the mode of appointments of the judiciary is
enshrined in the 1978 Constitution and the 19th Amendment adopted in hurry
and haste which requires many changes in the implementation process.

Chief Justice is the head of the judiciary and the Attorney General is the advisor to
the state expected to be independent and impartial towards the citizen
depending on justice and fair play. President of the Bar Association is the leader
of the Unofficial Bar who plays a pivotal role in the process of delivery of justice
with the legal profession acting as officers of courts assisting the Judiciary and the
citizen. The Ministries and departments supporting the process as necessary
appendages of the delivery of justice expected to be steady, just and impartial.
Delivery of justice is a combined operation/process of all the necessary parties led
by the Chief Justice and the judiciary who has control over the management of
the Law College, disciplinary actions of the lawyers and the judiciary giving
directions to the other judges with the cooperation of the Attorney General and
the Minister of Justice which indicates that the process is complicated and the
role played by the Minister is merely complementary and facilitation providing
resources and assistance with no powers on the main process. Therefore finding
fault on the attorney General and the Minister is illogical.

Setting up of special courts to hear and disposal of bribery and corruption cases
against the members of the previous regime

Cabinet spokesmen declared that the Cabinet has decided to set up special courts
to hear allegations of the previous regime on bribery and corruption. Though
there is no provision in the 1978 Constitution for such a procedure the Cabinet
may following the Commissions appointed to remove civic disabilities of Madam
Bandaraneika - the main contender to H.E. J.R. Jayawardena created a similar
institution based on cabinet decisions. Today the world situations have changed
and the same international supporters and international non-governmental
organisations may not support the move in view of the mood of the citizen and
the mass briary and correction taking place under the current regime. Will the
Chief Justice and the Supreme Court take part in the process as the appointments
of the alleged courts created will have to be approved and ratified by the Chief
Justice and the Judiciary is the million dollar question. What are the urgent needs
of the masses? Is it not draught, floods, damages caused by manmade and natural
disasters, Samurdi, cost of living, destruction of the environment, rise of
underworld and drug menace with spread of HIF at speed with disasters faced by
the young due to mismanaged by Facebook and other social media, fast spread of
poisonous and downgraded consumer items, find those responsible for the two
main robbers Vat Scam and Bond Disaster that has shaken our economy with
bribery and corruption by the previous and the present government, sale of our
silver for day to day existence, a vision for the Nation with polities for trade,
economy, foreign policy, rather than setting up special tribunals by converting Sri
Lanka once a model democracy in South Asia a Banana Republic, consisting of
most privileged legislators enjoying privileges unparalleled to any other system in
the world - yet the most corrupt mafia acting together shedding political and
other differences with all political parties as proved in vehicle scams and
unresolved bribery and corruption charges. It is still not too late for the legislators
to be sensible to work together with one goal for peace and peaceful nation with
development and prosperity free from bribery and corruption the main enemy
of the Nation. We prey they will be sensible at the last hour of self-destruction.

(The writer is a Solicitor/Attorney-at Law and former Ambassador to UAE and

Israel. He can be reached via Sarath7@hotmail.co.uk/077880166.)
Posted by Thavam