Delays in the Criminal Justice System of Sri Lanka, is by no means of recent origin. Nor is it a problem confined to Sri  Lanka.

Delays in the disposal of cases is a problem almost all developing

By Palitha Fernando PC,  former Attorney General
By Palitha Fernando PC,
former Attorney General

countries are grappling with. President Mandela, referring to the South African legal system had said,  “God’s Mill grinds slow they say, the pace of the South African Legal System puts even the God’s Mill  to shame.”  His reference had been to the legal system in South Africa during the colonial era. However, it is necessary that we pay to the delays in the criminal justice system, the attention it deserves and   arrest this malady before it reaches acute proportions, if it has not already reached such proportions. The consequences of a delayed criminal justice system would be far too serious to ignore.

Delay in the justice system serves to erode the confidence of the people.  The number of cases before the High Courts are ever increasing with no hope of early conclusion. The date of offence in most of those cases are more than ten to fifteen years. Most official witnesses come to court after their retirement.  Lay witnesses and accused are sometimes dead when the case is taken up for trial. Judges do their best to see the conclusion of trials taken up before them, but are helpless due to many reasons.

Prior to the amendment to the Code of Criminal Procedure Act, giving the accused an option as regards  trial by Jury, there was always an assurance that a case of murder taken up for trial would be concluded within a short period of time.

In the present context, a case of murder taken up for trial before one High Court Judge could continue  beyond the period of service of that judge and sometimes a few of his or her successors.  As a counsel for the State, appearing before the Court of Criminal Appeal, I have come across murder cases heard by several judges and prosecuted by several State Counsel before it reached a conclusion.  Instances where the Judge who never saw any witness give evidence, writing the final judgment is not infrequent.  This no doubt affects the concept of a fair trial, both to the accused and the prosecution.

Responsibility for the delays in the criminal justice system must be shared by all stake holders and delays occur at various stages of the process.  Concluding those cases pending before the High Courts is one aspect. However that should not be achieved at the expense of those cases filed afresh.  The backlog must be cleared whilst making all endeavours to conclude the new cases early.

I believe that it is an urgent requirement that we take stock of all those cases pending before the High Courts in order to get a clear view of the gravity of the problem.  My first recommendation is for the collection of data to ascertain how many of those cases pending before the High Courts are more than ten years old, counting from the date of the offence.  I am sure, the number would shock our collective conscience.

I would strongly recommend that nine retired High Court Judges be re-employed for the nine provinces and all cases more than ten years old, in the High Courts in that province should be transferred to a Central Court to be concluded within a year.

Extension of the services of those judges should be on a review of their performance.  A Senior State Counsel with a junior Counsel could be nominated by the Attorney General to prosecute in those courts. They could adopt the method we adopted when prosecuting three decades ago.  We read all files and decided on the cases in which we are willing to accept pleas.  The sentence should be left to judicial discretion.

Secondly, the Code of Criminal Procedure Act should be amended in order to restore the previous time tested jury trials removing the option given to the accused.  All murder cases, attempted cases and rape cases of victims above 16 years should be tried by juries.  I am confident that this would serve to reduce the delays drastically. Once the procedural law is amended it applies retrospectively.

Thirdly I would recommend the establishment of Criminal High Courts, exclusively for the purpose of exercising original Criminal Jurisdiction.  As a young State Counsel, even in the High Court where the work load was the heaviest, we did not have more than six cases a week.   We made sure that at least three of them were concluded. Heavy Courts to which  Justice Amir Ismail and the Late Justice D.P.S. Gunasekera were posted, brought down the case load to nothing, that they had to go slow to prevent the Court Houses being closed down for want of cases! Today this is impossible as a young State Counsel has to appear in at least 30 cases a day. This include appeals from the Magistrate’s Courts, Writ matters  and many other matters over which the Provincial High Courts exercise jurisdiction.

State Counsel prosecuting in the High Courts are so over worked that they are stretched to capacity.  Along with all that work, they have to attend to their advice files. The resultant position is that advice files are delayed.  An eternal accusation, leveled against the Attorney General is the delay in filing cases and disposing of files. No one with an iota of knowledge of the situation would justifiably level that charge. The Department has 130 Cadre vacancies to be filled.  Space to accommodate those officers is an ever increasing problem.

In order to deal with the existing delays in the Criminal Justice System, we need to clear the backlog and prevail upon the judiciary and the Attorney General’s Department to ensure that there are no delays as regards the new cases.  Lack of resources would be the biggest obstacle in this process. We need to increase the number of courts, judges and in doing so we would need the infrastructure and also the staff.  The Budget Proposal to allocate funds for the purpose of increasing the number of police stations is a step long overdue and the decision is commendable.

If faith in the system cannot be restored, people will take the law into their own hands.  That would lead to unimaginable disaster.  A senior lawyer once told me that the last thing he would want to be in this country is a litigant which I think sums up everything!