Justice Hurried; Justice buried(Continued from last week)
article_imageAugust 4, 2014When the white men were ruling this country, all murder cases, meant to take away the lives of men for the offences committed, were tried before the senior most judges in the Supreme Court. As the Suddhas thought only the veterans in the judiciary should be permitted to take away a mans life.

But the ordinary villager who complained and others who were accused were brought before a Magistrate of the Province. If the Magistrate convicted the accused the appeal was either heard by the Supreme Court; Court of Criminal appeal or by the Court of Appeal. The senior judges of these courts heard and delivered judgements and most of them were reported.

Our Criminal Law reports, the New Law Report and the Ceylon Law Weekly were full of judgments enumerating and interpreting the law by the most sophisticated legal minds of the country. Lawyers, even today, refer those judgments to help the Courts to determine a subtle point when the prosecution deprives an accused or a person who is aggrieved by the justice meted out by the Magistrates Court.

As J. R. Jayewardene and his constitutional amendments, paved the way for provincial high courts and all appeals from the Magistrates Court go before the Provincial High Court. Even if a very valid legal point is discussed, interpreted and endorsed by the judges of the high court but no one else would know the rationale behind the judgment as they are not reported. Justice has become so closeted that ordinary litigants will have to appeal against the order of a Magistrate to the High Court, in case their application is rejected by the High Court of the province or in the event the High Court refusing to revise the order of the Magistrate, then that person would have to appeal to the Court of Appeal. The expense, the time and delay cannot be measured. Only a very few venture into the realms of the un-known which is far away from the Magistrates Court, into the original order, so made. This has resulted in a grave injustice where a few Magistrates had used various methods to obtain hurried justice, burying the essence of criminal jurisprudence which has been developed over the years by right thinking people and people who have made jurisprudence their forte.

Justice Tissa Dias Bandaranaike, in a response to a State Counsel who repeated the much hackneyed clich justice delayed is justice denied, remarked "I sometimes strive to understand the points raised by counsels to find the truth. The process is lengthy, arduous with pitfalls and dark abysses and to avoid delays, if one in this noble pursuit hurries then , Justice hurried is justice buried".

We also find that there are many bench orders being made today and it is rather difficult to find judgments which are of universal application. Justice Salam has brought back the pristine quality of the good old days of the Queens Justice where the judge interpreted Law and did not hesitate to comment when the findings were ex-facie wrong, ad-hoc, capricious to suit and appease the sense of street justice back to the good old days of the British empire. "If you have taken money pay it back otherwise you would be remanded is exhortation of some very minuscule number of Magistrates

In the case of an application to revise the ad hoc order made by the Magistrate, if the High Court had not appreciated the points raised by the Petitioner and denied intervention, the Petitioner then had no alternative but to appeal to the Court of Appeal in order to obtain justice from a patently illegal order.

But what is shocking is in this case which I referred on the last date, when the matter was finally referred against the order of the Magistrate where he remanded the petitioner for not adhering to the scheme of payment and was remanded indefinitely, the Court of Appeal, having gone through the entire brief with meticulous care and had been assisted by the Attorney General who has given very detailed guidelines to the Magistrate about the manner in which he should deal with the case. The Magistrate being overawed by his sense of street justice had callously refused to follow the guide line given to him by the Court of Appeal.

This is what justice Salam states in his judgment:

We thus permitted proceedings in the revised application, as we had the fullest confidence in the learned Magistrate that he would not resort to extra judiciary methods to enforce purported statements or purported admissions. In our judgment we categorically observed that the Magistrate should not make such an illegal order remanding the petitioner for the non-payment of the instalments, but there is no statement acceptable in law valid. Affidavit is given under section 420 of the Code of Criminal Procedure. We specifically mentioned in our judgment that the only course opened to the applicant in the event of the non-payment of the instalment is to file a charge sheet and establish guilt of the Petitioner beyond reasonable doubt and to bring the culprit to book.

Thereafter, what happened is almost unbelievable in the annals of the judicial precedents and the simple theory that the Magistrate must fully adhere to the directions given by the Higher Court especially when it relates to an order made, revising the original order made by the Magistrate.

The Magistrate is supposed to have read the guidelines and re-remanded the Accused.

His Lordship the President of the Court of Appeal, Justice A. W.A.Salam has even considered whether to charge the Magistrate for for contempt of court but did not do so as they were not directions but mere guidelines. The judges of the Court of Appeal further state "if the suspect did not pay the money in terms of the illogical order to detain him until the payment is made, the prison authorities may have had to keep him until the payment is made, irrespective of the time factor. If no payment was made, the Petitioner would have to languish in remand for life. The absurdity of the Learned magistrates order is evident and it is illogicalness".

It is very evident that as a few Magistrates do, the Courts are driven by the desire to dish out hurried justice and the Magistrates are presumably happy when the aggrieved party receives the money which has been embezzled by the suspect and at the same time, once the money is paid, the same magistrate directs the police to file an plaint and the charges are amended. Presumably the case would be concluded. Entries are made on the daily reports sheet that is sent to the JSC showing the number of cases that have been concluded.

Justice Salam discussed the concept of hurried justice.

"In the course of the argument, it came to light that several Magistrates Courts of different jurisdictions adopt the identical method to deliver hurried justice. To my mind, this is cause for unpleasant surprise and under no circumstances can it be condoned. Such procedure, which is unknown to the Law, if encouraged would destroy the entire fabric of justice and a perpetual challenge to the implementation of the concept of presumption of innocence enshrined in the Constitution".

Therefore, all those who cry foul that the concept of o the Rule of Law had been compromised would sit and observe such rudimentary violations of this noble concept and would acquiesce but would shout hoarse of executive action.

Remand prisons are full of people who had never been in remand and if not for the most pernicious piece of legislations which was introduced during the regime of Chandrika Bandaranaikes government, called the Bail Act. The irony is that in Bail Act, the preamble has it that Bail is the rule and remanding is the exception. But permits the police to bring various objection that the accused may abscond, may interfere with the witnesses and the mere bailing the accused would mean that there would be public disquiet. The Courts are sometimes compelled to act according to the information filed by the police and remand the suspects for unproven allegations contained in the report.

About 35 years ago, the late Thivanka Wickremasinghe PC, said that there was a young Magistrate in Kalutara who had with meticulous care prepared an index of cases related to criminal law. He said that he was pleased to appear before this Magistrate as he appeared to have a wide knowledge of the criminal law of the country. This Magistrate is the present President of the Court of Appeal Justice A.W. A. Salam.Posted byThavam