Although one of the slogans the government carried in their election campaign was to bring criminals and offenders of the previous regime to book, with longer time periods spent on the ongoing investigations and in gathering statements from relevant persons, the fear is that even more time could be taken to initiate legal proceedings and prove the innocence or guilt of the parties. This has inspired many parties, even the general public to call for the need to introduce a system under which swift legal action could be initiated against such identified offenders.
In response to the criticism on the government’s failure to launch prompt action, it was discussed whether special courts could be introduced to the system to expedite these matters, for which the Justice Minister responded in the negative, stating that the introduction of new courts is only possible through a constitutional amendment.
Just last week, Minister of Health and Indigenous Medicine, Dr Rajitha Senaratne announced that the government intends to establish more high courts to reduce the duration spent on cases and to circumvent unnecessary delays.
Last week, Minister Mano Ganeshan speaking to the Sunday Observer, said, rather than opting for a constitutional amendment it is much more convenient to increase the number of high courts.
Legal experts weighing the matter are of the view that with the established legal frame the most efficient method of expediting hearing, is to hold Trials-at-bar or hold trials on a daily basis.
Speaking to the Sunday Observer, Parliamentarian and a veteran constitutional lawyer, Dr Jayampathy Wickremaratne is of the view that the best option at hand is to revert back to the old method of hearing trails on a daily basis.
“There is no need to introduce new special courts unless very exceptional circumstances are available to establish special courts. The people’s complaints are not on the quality of the law but rather on the delays of the law,” he said. Attorney at Law Chandrapala Kumarage, is of the view that Trial-at-Bar is the mechanism placed within the current system that can be utilized to bring about swift justice to the stagnated cases.
“In this country, the main laws that govern the country’s court systems are the Constitution, the Judicature Act and the Criminal Procedure Code. This is what spells out the establishment and functions of the courts in the country. Pertaining to special circumstances, the Chief Justice may, upon a request made by the Attorney General appoint a Trial-at-bar. The most recent example of this was the appointment of a Trial at the bar for the Vidya murder case.”
He further pointed out that if special courts should be implemented it cannot be done unless the Constitution is so amended.
“There can’t be special courts to hear alleged offences. If such alleged offences are indictable offences, they should be heard by the High Courts and any minor offence shall be heard by the Magistrate’s Courts,” Kumarage said.
Drawing parallels with the introduction of a similar system, namely, the criminal justice commission – insurgency as far back as 1971 which was adopted to serve justice in a swift manner, he said, the circumstances are completely different now.
“Now, this is a special circumstance where an enormous number of crimes were taking place all over the country and offenders from all corners are to be produced before courts. But even under this, there were no new offences introduced and the customary procedure on the Law of Evidence was followed,” he said.
Showing examples through his legal career spanning about 40 years, Dr. Wickremaratne says, before 1979, trials would be fixed on a day to day basis so that a case could be concluded within a few weeks.
He pointed out that by adopting this method, the prosecutor, investigators and other relevant parties stay on alert and are ready to face the trial.
“Today, if a witness is not ready the case goes down for at least two or three months, even if a simple document is missing or if a party has failed to obtain a document, cases are postponed and dragged on for years,” he said.
Considering some comments made in the political arena, if the idea is to introduce new courts envisaging various people and related offences that will not be an ideal situation. For cases of utmost importance and where swift legal action is needed, there is always the option of a Trial-at-bar set out within the existing legal frame.
Power relating to High Courts falls within the purview of the Chief Justice who has the power and the authority to assign courts or make such relevant orders.
“There is the possibility of designating two or three high courts to deal with a particular case such as corruption; however, I would not recommend adopting such a method as it will limit the courts’ capacity,” Dr Wickremarratne said.
At present, a Bill is placed before Parliament seeking to increase the number of high court judges. It’s a matter for the Chief Justice and the Judicial Service Commission together with the Ministry of Justice to provide logistics to increase the number of courts and judges.
A study has revealed that it takes 10 years and two months from the day of committing the crime till the conclusion of the case. This excludes the time spent on appeals.
Minister Rajitha Senaratne has stated that 101 cases relating to fraud and corruption allegedly committed by those linked to the former President and his regime were still pending without bringing them before courts, and another 87 cases filed had been sent to the Attorney General by the Financial Crimes Investigation Department (FCID) and 14 from the Criminal Investigation Department (CID).