Why People Oppose The Undermining Of The Judiciary
Basil Fernando
“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.
