The following are two articles by Frank de Silva, a former Inspector General of Police of Sri Lanka and Basil Fernando on the laws delays in Sri Lanka. This is taken from Asian Human Rights Solidarity.
'Laws Delays': Some Perspectives
Frank de Silva*
There is no doubt that abuse of the legal process resulting from ‘laws delays’ results in the denial of human rights. The ‘right’ involved in this context is the right to justice. Access to justice, (which amounts to a right to justice) is infringed if the process followed is seriously subverted in the deliverance of justice. People have an inherent right to justice as a basic human right. The right to justice is also a right that underlines each and every provision of our Constitution. Thus it is maintained that the sovereignty of the People includes the judicial power of the people. The judicial power of the People can be thwarted and this right denied by judicial action as well as by other action. Abuse of process and abuse of power means to deny or violate rights .
Following from this argument, a commercialized process in delivering justice is, in essence, an abuse of process. A process for justice so faulted can hardly uphold rights. It brings in its wake a corruptive influence on the process, in denial or violation of rights. To that extent, abuse of process and power and their corruptive influence, is the violation of rights of the People. These aspects are often clouded over under the rubric of ‘laws delays’ in reviewing the workings of the law in courts. It is this aspect that will be discussed in the succeeding analysis.
‘Laws delays’ is a term freely adopted to convey concerns in relation to the workings of the court system. Over the years, Committees of Inquiry have been appointed to look into this problem, designated as ‘laws delays’ and have made appropriate recommendations. The most recent Report is that submitted by a Committee under the Chairmanship of Justice Raja Fernando in 2006. The Committee was appointed by the Minister of Justice to ‘identify ways to minimize delays in the administration of justice.’ The purview of the Committee appeared to be limited to administration of justice in civil cases. The recommendations, classified under Pre-Trial Procedure etc. are of little relevance to criminal cases though the pertinence of alternate dispute resolution (which was confined in this report to civil cases) remains compelling to the present discussions as well.
The purpose of this short analysis is to focus on the specific aspects of ‘laws delays’ in criminal cases. Delay in criminal court proceedings has a painful impact on the community. The process in the criminal courts is essentially one of attrition between the parties. The process has an abrasive effect on relationships within the community and contributes to disrupt harmony of such relationships. From the point of view of the community, the people involved are caught up in a harrowing process in courts, the end result of which is devastating. In sum, ‘laws delays’ as they feature in the criminal process, have a destabilizing effect on the community. Inquiries into ‘laws delays’ however limit the examination of ‘laws delays’ merely to a managerial context; one of the workload and insufficient resources. Recommendations follow accordingly relating to additional resources to ease the work load. The community perspective of the problem from ‘laws delays’ is never the standpoint of these inquiries. Yet examination of protracted criminal proceedings in terms of time and expense is essential to a discussion of ‘laws delays.’ This has a distressing effect on the parties to the litigation and works to the detriment of the community at large.
Laws Delays and Corruption
The negative aspects of ‘laws delays’ are manifold. Delay is the stuff of corruption. Postponement, differing action, procrastination and putting off what has to be done are the means for subverting the process for corrupt ends. Practiced delay is in effect abuse of process. Delay is the means when intent is otherwise than honest. Abuse of power and position therefore is inherent in such deviance of process. Expeditious action and efficiency on the other hand is the converse of calculated delay. Action with expedition and efficiency limits the prospect for corrupt practice. There are a few examples of ready disposal of cases in courts which allowed no laws delays. These are but exceptions to the general rule of delay in court proceedings.
Abuse of process
When the term ‘abuse of process’ is subjected to rigorous examination of its exact meaning, it becomes clear that abuse of process through delaying action is in fact the predominant feature in governmental activity. ‘Laws delays’ do not stand alone. Government institutions, including courts, tend to develop these negative practices during the course of time. These practices are soon insinuated into the system and continue unchecked. In course of time, these deviant practices assume larger proportions; they figure thereafter very much as a fact of life, acquiesced to initially, and soon projected as inevitable. The problem then erupts as aberrations in the system, working into the vitals of the relevant organizations. Examples of this are many. In the medical field, such practices take the form of private practice; in the educational field, they emerge as the obnoxious resort to private tuition; these practices are ostensibly categorized as ‘overtime’ in the public service and as ‘laws delays’ in courts of law. Practices of NGO funded research in the universities are of the same order, apart from many other examples. The insidious aspect of these practices surfaces in the exploitation of official positions, in the abuse of process and in corrupt diversion (by those who engage in such practices), of official resources to further private interests.
Furtherance of private interests in any organization can only be at the expense of the vitality of the organization. Monetary incentives drive these deviant practices without which the practices cannot be sustained. However, in other instances, the thirst for recognition or for rewards in power and position may also be a driving influence and should be equally acknowledged as such. Yet these practices have the capacity to gain recognition in due course. Their adoption is then complete. The term ‘laws delays’ like all else gains official currency without demur, and is adopted freely with little reservation. The most recent examination of this problem under the Chairmanship of Justice Raja Fernando was just one more of these reviews which avoided the embarrassment of referring to the darker side of the problem.
Manipulation of the Process
Manipulation of the process is a consistent feature in all these questionable practices referred above. The manipulation of the criminal process is a specific feature of deviance in the court process. Lethargy and inefficiency per se may cause delay but these deficiencies are capable of rectification. On the other hand, manipulation of the process results in delay becoming entrenched and systemic. Remedy is then difficult. These practices are subsumed into the court process through its roots and tissues, its files and the records. Incentive and inducement sustain or nourish the abnormality as it grows. Delay earlier justifies more delay later. Inducement is further induced. Incentives add to incentive. The process now lives on itself in parasitic symbiosis. A remedial process is thus all the more daunting.
Divergence of Interests in the Court Process
Divergent interests interplay in this context. Inducement and incentive for ‘laws delays’ are equally the result of public and private interests playing themselves out in the court proceedings. In theory, the public interest is upheld by the judges while lawyers pursue their private interests. Private lawyers cannot seriously be expected to uphold public interests detrimental to their financial interests. Laws delays are therefore, in the main, due to the private interests of private lawyers prevailing over the public interest to be upheld by judges. Private interests prevail only to the extent that they are permitted the space to drive their private interests, inducements and incentives. Public interests are willy-nilly weighed down by private interests to the extent they preponderate over the former. Evidence given in public at a Commission of Inquiry into the problem of law and order was, unreservedly, to the effect that ‘no court house sits after 12-1pm on any day’. The Ministry of Justice responded that a circular has been issued to require judges to sit till 4.00 pm each day. Public interest, so ill disposed, can hardly assert itself over the private interest. Shortened hours serve the private interest. They may be acquiesced in by those upholding the public interest. Monetary incentives drive these interests. Delay is the result. Delay is remunerative.
Laws delays induced by particular interests defy fair practices and plainly amounts to corruption of the process. Conflict of interest is a common feature of much of the phenomenon of ‘laws delays.’ Honourable lawyers who do not resort to this practice and judges who take harsh action against dilatory counsel are as rare as they are unpopular. There is then a structural dimension to the problem of ‘laws delays’, which any future Committee of Inquiry may take note of.
The Impact of Laws Delays on Crime Control
Reverting to the problem stemming from laws delays in criminal cases, it must be noted that delay hardly makes for effective law and order and for control of crime. ‘Law’ thus delayed has a negative effect on crime control and law and order. The criminal process, based on justice and punishment should be dispensed expeditiously. Delay tends to encourage an opposite result and inclines to a process both dilatory and desultory. Inevitably, this has a grievously negative impact on crime control. The maintenance of law and order is negated by delay. Time, effort and expense wear down the parties to litigation (particularly the complainant and witnesses). Monetary inducement to delay, to that extent, wears down the parties and renders the process even more abrasive among the parties inter se. Acrimony in relationships is the one sure result of a court process. These elements do not make for good law and order. The process is therefore subverted in its endeavour to deal with crime. The unchecked development of these dilatory practices is invidious; their consequences are grave.
The Question of Expediency in the Legal Process
Expediency rather than due process finds its way within this milieu of a questionable criminal process. Expediency works itself into the judicial system in the space within ‘laws delay’, vitiating the integrity of the judicial process. Expediency manifests itself, for example, through disposal of cases ‘otherwise’, than through due process for conviction or acquittal. Statistically, conviction or acquittal through due process in cases amounts to a very low percentage. The disposal of cases through means otherwise than through due process, thus becomes the main means of concluding cases before court. Resort to ‘otherwise disposing’ of cases can be through the adoption of some expedient practices as reducing the charges, say, of theft to mischief etc. with the sole intent of concluding the case. Delay and expense over the long protracted period of attrition helps to impel that conclusion, of cases ‘otherwise disposed’. Delay contrived long enough, months and years, to wear down the parties helps to bring them round to agreeing to their cases being otherwise disposed of. In other instances, this results in the victims taking the law into their own hands. Deviance in judicial process, in this manner, is then the grim reality. These devious practices hardly serve to inspire confidence of the community in the institutional process in respect of the dispensation of justice and the maintenance of law and order.
In regard to the less serious crimes, one remedy proposed has been the diversion of cases away from the formal courts. The remedy is not radical but only to the extent that it could alleviate some of the burdens. Diversion in some measure would avoid much of the harsh impact of court procedure in criminal cases on community relations. Mediation and conciliation between parties, (rather than adversarial adjudication with induced delay), appropriately, by the police, by the state prosecutors and also by courts may be a reasonable alternative. Relief to the ordinary litigant can be substantial.
These processes are surely not appropriate for the more serious cases but are eminently suitable for a range of minor cases. Minor cases possess the component of relatively less serious dispute which becomes more appropriate for resolution through mediation. In the more serious cases of crime, the offence is more against the State and the law which belongs in a different category altogether. In this regard, it must be emphasized that ‘laws delays’ is more than a problem of workload. The problem in ‘laws delays’ is structural and systemic. Solutions are therefore not easy. There is no doubt that a serious and concerted effort should be made by the judiciary, the legal profession, law enforcement officers and concerned members of civil society in regard to restructuring the legal/judicial process in order to address this vexed problem.
‘Law’s Delays’: Some Further Perspectives….
The article, “‘Laws Delays’: Some Perspectives,’ by retired Inspector General of Police, Frank de Silva is illuminating in many respects and deserves careful reading. Though one may join issue with him regarding his concluding comments concerning the relevance of mediation to the criminal process, the analysis contributes a great deal to the understanding of the problem.
The most important aspect of this analysis is the assertion by Mr. de Silva that delays are not just a matter of resources, but rather a matter arising out of structural causes; thus his comment that “it must be emphasized that laws delays is more than a problem of workload. The problem in ‘laws delays’ is structural and systemic.” By saying this, Mr. Silva has gone far beyond the normal statements about laws delays which are attributed mainly to workload and limitations in resources.
Attributing delays to workload and limited resources is a factor that Supreme Court and Appeals Court judges often mention in their ceremonial speeches. Inadequate court houses, judges and financial resources of the courts and facilities are thus deemed to be the most important aspects affecting court delays. The Report of the Committee Appointed to Recommend Amendments to the Practice and Procedure in Investigations and Courts headed by former Solicitor General, (present Attorney General) C.R. de Silva on behalf of the Ministry of Justice in 2004 approached the problem of delay, mainly from the point of view of the limited resources of the courts, the limited number of prosecutors (attached to the Attorney General's Department) and the limited capacity of the policing system. However, in reality even the limitations caused by resource allocations are due to unresolved structural and systemic problems. For many reasons these systemic and structural problems are not even being discussed seriously, let alone being addressed.
Private Interests vs the Public Interest
Mr. de Silva mentions many systemic problems. Among these are various conflicts of interest, for example public and private interests, such as those of lawyers and courts. The short sitting times of courts, for example, most courts do not sit after 12:00 or 1:00pm, is often a result of court adjournments due to lawyers seeking postponements. This is an issue that the Asian Human Rights Commission has also taken up many times and we have observed that speedy justice can only be ensured if the courts sit for the full duration of the official working hours. However, the reason for such postponements need not be conceived purely as private interests of the lawyers being pitted against the public interest as (theoretically) upheld by the judges. The conflict between private lawyers and the court is a problem that exists in all countries. In many jurisdictions, this is not accepted as a factor for the causing of delays, as proper guidelines have been developed and implemented by the courts for their proper functioning and no one is allowed to obstruct the judicial process. It is the function of courts to balance various interests and not to allow any party to undermine the administration of justice. It is the duty of the higher courts to give the necessary guidelines to all courts and to supervise their implementation.
This concept of command responsibility applies particularly to the Supreme Court. If courts fail to sit for the length of official working hours, this is a serious disciplinary issue and it is the Judicial Service Commission (headed by the Chief Justice and two superior court justices), which is empowered to deal with that issue. If those who command authority fail to carry out their obligations, that is a fundamental, structural and systemic issue. I am unaware of any inquiry or study examining the failure of the Judicial Service Commission to ensure that all courts sit during official working hours. The core issue of delays is time. If the time given for sittings of court is not utilized, is not an issue of resource limitations but one of discipline.
A further aspect relating to private interests is that it is not only the lawyers who obstruct the proper functioning by seeking dates etc. The Committee headed by former Solicitor General CR de Silva identified that one of the major causes of delays in criminal cases was the failure of the police to attend courts. The Committee proceeded to make recommendations in regard to the drafting of regulations and the education of judges to take firm action against police officers who refuse to attend court when duty requires them to do so. The relevant excerpt thus is, as follows;
1.2. a); ‘Compulsory attendance: The Committee recognises the need to introduce administrative measures requiring Police Officers to attend Court on a compulsory basis, in view of the frequency with which Police Officers obtain leave and abstain from Court sittings, sighting inappropriate grounds, which has been observed to result in unnecessary disruption of Court proceedings in the recent past.’
This phenomenon of the police virtually defying the authority of courts was evidenced from 1971 when protection of ‘security concerns’ were perceived to override every other concern, including the obligations of police officers to attend legal proceedings. The result was that police officers who (for reasons of their own), did not wish to attend court made use of the perennial excuse of ‘having to attend to serious matters.’ Thus we see that the authority of the court system suffered greatly due to the acceptance of this practice. In recent times, ostensible concern for protection of national security has undermined concern for implementation of the rule of law. Among the most important structural questions that affect the court system is the undermining of the importance of the legal process and the independence of the institution of the judiciary. These are concerns that should receive the highest priority for attention.
'Laws Delays' as Judicial Corruption
Mr. Silva’s article also makes many valuable points in regard to the element of corruption in the present phenomenon of ‘laws delays.’ Such frank criticism should receive foremost attention as this aspect affecting justice has not been discussed adequately. In all areas of criminal investigation and prosecution today, corruption plays a vital role. Often one of the very prominent reasons for torture is the fact that the police allow the actual criminals to escape and seek to put the blame for the crime on innocent people by creating a ‘substitute accused’ in place of those who have been allowed to escape. Many cases have come to public notice such as the case of Gerard Perera, who became a victim of this process when the police were investigating a triple murder. In the course of looking for the perpetrator, the police ended up in arresting Mr. Perera and assaulted him to the extent that he suffered renal failure. Later on, while seeking justice before the High Court, he was assassinated. That is the extent to which the process now suffers from the infiltration of corruption into the system. No justice system can function if the basic structural issue of corruption is not pursued and resolved. If corruption supersedes the question of justice then there is no other solution to deal with that issue except by forsaking the justice system and resorting to extra legal means of combating injustice.
The Relevance of Mediation to Discussions on Crime Control
The possibility of mediation or settlement of criminal cases (rather than by taking these cases coming to court for trial) is however, that aspect of Mr. de Silva’s analysis that I differ from. Advocating such a remedial measure begs the very question that he himself has very legitimately raised; thus, if corruption is so rampant then the encouragement of mediation and settlement can only contribute to greater corruption. It must be stressed that greater power being given to the police in the area of disputes must be discouraged in the absence of a substantive overhaul of the current policing system. In the present context, such power would only contribute to greater manipulation towards personal enrichment of corrupt police officers, rather than contribute towards the public interest. The recent family massacre at Delgoda and events thereafter starkly illustrate the dilemma of a community which has completely lost faith in the commonly accepted forms of law enforcement and dispute resolution. Indeed, what we see now is that the community fears the involvement of the police due to the fact that such involvement often leads to problems between parties inter se, being transformed into problems that are related to the deeper and more pervasive forms of corruption within society and the policing system itself.
A serious response to the questions raised by Mr. de Silva’s article would be better framed by an extensive examination of the structural and systemic problems affecting the criminal justice system and by encouraging an open debate in this regard. Such frank discussions have not yet taken place in the public sphere though they form the common core of private discussions in Sri Lanka with enormous frustration being expressed by people from all walks of life.
The Relevance of the ‘Malimath Committee’ Deliberations to Sri Lanka
In India, the question of mediation, in the context of the criminal justice system, was discussed when the now infamous Malimath Committee report was introduced under the former BJP government. The crux of the Malimath Committee recommendations was to reduce criminal cases to civil disputes and pave the way for various types of mediations and settlements instead of criminal trials. This Committee went so far as to suggest that burden of proof in criminal trial should be on balance of probability rather than proof beyond reasonable doubt. The Committee members also called for the negation of basic principles of criminal law such as the presumption of innocence and the right to silence. The Committee’s recommendations were shelved due to massive international and internal protests. However, there have been many attempts to bring these same recommendations through the ‘back door’ thereafter.
Treating crimes as purely private disputes is not uncommon. The practice of accepting blood money for ‘private’ crimes in the Saudi Arabian legal system was developed conceptually on this same rationale. If the person who has suffered the loss due to the crime is paid by the accused, he/she may forgive the accused and thereafter the State has no right to deal with the issue. Consequently, the powerful become advantaged in such a system while the poor suffer punishment because they have no capacity to pay.
However, such systems create extremely terrible punishments as a necessary deterrent. Public beheadings in Saudi Arabia are commonly the manner in which crimes are dealt with within that system. A somewhat similar phenomenon is now taking place in many South Asian countries including Sri Lanka. A recent publication of a picture in an Indian television channel of a sub inspector in Bihar, seated on a motorbike dragging an alleged criminal along the road who was chained to the bike is one good illustration. He was trying to demonstrate to the people as to how justice is being done. A similar tendency has developed in allowing those identified by the police as hard core criminals to be extra judicially executed. In India, this phenomenon is known as encounter killings and in Sri Lanka, we see similar occurrences when criminals who are in the custody of the police allegedly try to harm policemen by trying to throw grenades or by other means consequent to which they are disposed of. Hundreds of such instances have been reported in recent times. In such a situation, the causing of forced disappearances of arrested persons, by their very custodians, is considered as a legitimate form of punishment.
We see today the manifestation of two strategies to deal with crime. One is the practice of mediation and settlement dealing with lesser crimes, while the other commonly evidenced phenomenon is extrajudicial punishment that is meted out in response to greater crimes. The result of both practices is to displace the due process of law and the notion of a reasoned process of criminal justice. What is lost along the way is a rational approach to deal with crime. In the past, such rational approaches were developed, not due to any sympathy directed towards criminals but due to the acknowledgement that the manner that a society deals with criminals has a profound impact on society itself. By defining certain acts as crimes, society recognises certain types of moral behaviour as a necessary pre-condition for its existence. While morality defines killings as being wrong, the law makes murder a serious crime. By means of criminalising certain activities, society was taught to avoid certain types of conduct as this conduct was deemed harmful to society. It is this acknowledgement that acts as a deterrent to crime and also holds the society together. When such a reasoning process is abandoned, the fabric of society itself is affected and societal collapse takes place. The demonstration of such a collapse is quite visible in Sri Lanka in crimes such as abductions for money and killing of families purely over land disputes as what happened in Delgoda.
When due process fails, the system of policing fails, as does the system of prosecutions and the judiciary. The crux of ‘laws delays’ is that it results in destroying the capacity of the society to maintain due process as the only possible mechanism of dealing with crime. Perhaps the surest mechanism to deal with structural and systemic problems of ‘laws delays’ is through the development of an effective corruption control agency with similar powers and organisational structure as the Independent Commission against Corruption in Hong Kong. This corruption control agency is structured completely outside all government departments including that of the police. The professionals attached to the department work solely for the department and have no affiliation at all to any other department. Besides investigations and prosecutions, the agency also conducts extensive education for the prevention of corruption. On the issue of corruption, there is no compromise and there is no mediation. It is a serious crime and it is dealt with in that way. As a part of the elimination of corruption within society, corruption is also eliminated from the sphere of the administration of justice. Speed is an integral part of the efficiency of the administration of justice.
Contextual Problems Concerning Crime Prevention and ‘Laws Delays’
Some time back, the Asian Human Rights Commission put forward a policy paper on crime prevention and policing in Sri Lanka  aspects of which are as follows,
Firstly, the police-criminal nexus is not only a reason for the increase in crime but also an encouragement to crime. The assassination of Colombo High Court judge, Sarath Ambepitiya disclosed the extremely close cooperation between some high ranking police officers and drug dealers; this is only a manifestation of a larger phenomenon that is wide-spread throughout the country. The criminal-police link has become deeply entrenched within the last thirty years. Today, this link has negatively affected the system of investigations into crime and in particular the administration of criminal justice. Above all, this nexus endangers the lives of investigators and witnesses. It also remains the source of an enormous extent of malpractice that defeats the purpose of fair trial such as tampering with statements made to the police and even the destruction of material evidence. As long as the people witness such a strong link between the police and criminal elements, they will not come forward to cooperate with the state agencies, even though they themselves may suffer a great deal due to crime. At present, people who become victims of crime once, suffer the second time the moment they begin to complain about the crime. Complaining about crimes can lead indeed to serious physical harm or assassination. Today, the lodging and pursuing of complaints against criminals has become a perilous activity for Sri Lankan citizens or for foreigners.
A second important general factor is the collapse of the rule of law which has been brought about with deliberate intent to institutionalize a new type of authoritarianism through which the executive has absolute power. Legal rules have been suspended in order to engage in extra judicial killings, torture and other forms of violence against persons and property. State sponsored violence has spread into all parts of the country and claimed tens of thousands of lives. The basic fabric of the rule of law operating through the police, the prosecution system (Attorney General’s Department) and the judiciary has collapsed. There is no attempt to restore the legal fabric of Sri Lankan society and to revitalize the functioning of the system of the administration of justice.
In the first instance, the policing system (as it supposed to exist in terms of the law) does not exist in Sri Lanka. Instead, a parallel system has emerged in which extremely lawless elements in the police and criminal elements, mostly engaged in lucrative criminal activities such as drug dealing, illicit liquor and illegal forms of businesses, have combined to subvert the very foundation of a policing system functioning within the framework of the rule of law. Other institutions have been rendered powerless as a result of this extensive police-crime nexus. For example, the Department of the Attorney General, which is also the chief prosecuting department in Sri Lanka is at the mercy of the police in that, if the police fail to conduct criminal investigations, as they do most of the time, this department is powerless to do anything. The Attorney General’s department then says, ‘we cannot prosecute as we have no evidence.’ In turn, the judicial system is powerless when the policing and prosecution systems are powerless. The police are able to subvert the entire process of justice by allowing the witness to be intimidated. Once the witnesses are intimidated, they do not attend court sittings or when they do attend, they deny previous statements. This they do in order to save their lives from criminal elements. Such witnesses are fully aware that the police cannot and will not protect them. Thus, the entire justice framework is in a state of serious crisis.
‘Laws Delays’ and the Legal Process
There is no doubt that the major defect of the justice system that contributes to the increase in crime is the delay in the administration of justice. With regard to crime, the investigations take too long and the reason often given is that there are insufficient qualified investigators and that the necessary equipment such as fingerprint examination facilities, communication facilities, transport facilities and education and training facilities are lacking. However, actual interest in crime prevention does not exist as a concrete objective for many police officers or for prosecutors. There is another group that suffers from a sense of futility which affects the administration of justice. Those are the lawyers. A large section of lawyers have given up the practice of criminal law. They have realised that to survive in that practice you need to evolve corrupt practices. Meanwhile, the heavy workload in the courts creates long delays in adjudication. These delays result in the negation of the process of adjudication. People tend to settle their disputes in other ways than through the legal process such as by the assassination of opponents or severe intimidation, causing weaker parties to abandon their claims regardless of how legitimate such claims might be.
Conclusion - Inquiry into Short-Term and Long-Term Programmes to Control Crime
There are two major questions that need to be dealt with immediately if crime is to be controlled in Sri Lanka.
a. Substantively address the issue of the police and criminal nexus. Without this first step there is no real possibility of combating crime;
b. Introduce a comprehensive witness protection law and provide a witness protection authority that could, in fact, provide witnesses with effective protection so that they could participate in the judicial process without fear;
c. Take steps to reduce delays in adjudication so that the process of every single case will happen within a time period that can be rationally accepted.
>>continue to part 2