By Basil Fernando
The Criminal Justice Commissions (CJC) Act, No. 14 of 1972, marked the beginning of the collapse of Sri Lanka’s criminal justice system. The process that started then, gradually expanded further and further, and today, the criminal justice system in Sri Lanka is virtually dysfunctional.
What the CJC Act in fact did was challenge all the fundamental aspects of the criminal justice system as it existed till then. These fundamentals were the presumption of innocence which places the burden of proof of a crime against a person, on the State’s representatives, thereby the prosecutors. The CJC also challenged the right to a fair trial before a normal court of law. It also denied the right to a fair trial. All these aspects continued even after the CJC inquiry and even after the abolition of the Act itself in 1977. Basic aspects of the CJC were thereafter assimilated into many other laws and now these have become part of the normal criminal justice process in Sri Lanka. While some aspects of the CJC were incorporated into law by statute or other forms of legislation, much worse happened in terms of the actual practice. Now the practices have developed a system of their own which defies whatever the better aspects that still remain in the basic laws such as the Penal Code, the Code of Criminal Procedure, and the Evidence Ordinance.
Former Supreme Court (SC) Judge and a Commissioner of the CJC inquiry Justice Anthony Christopher Alles, in his book titled Janatha Vimukthi Peramuna (JVP) 1969-1989, gives the reasoning for the adoption of the CJCs Act: “Subsequent to the investigations, it became apparent that the principle material on which the State had to rely on to bring home the guilt of the persons responsible for the insurrection, would consist of statements which were self-incriminatory and statements of persons who may themselves have been involved in the alleged conspiracy and were therefore accomplices. In contemplating the prosecution of persons suspected to have been involved in the alleged conspiracy which led to the April insurrection, the authorities no doubt realised that statements of this character could not be used in evidence at a trial conducted in accordance with the ordinary rules of evidence and procedure.” Thus, the fundamental assumption behind the CJC was that it was not possible to proceed into a trial against suspects under the ordinary rules of evidence and procedure. These rules of evidence and procedure were introduced a long time ago during colonial rule, bringing into Sri Lanka some of the most developed concepts and laws which define the basic aspects necessary to ensure a fair trial. However, the CJC inquiry was to be conducted without regard to these basic rules and procedures.
Although the CJC has been termed as a “trial”, it was not in fact a trial at all. A trial means a fair trial. There cannot be any other kind of trial in law other than a fair trial. A fair trial implies certain basic assumptions such as the presumption of innocence which in turn implies the right of the accused to remain silent regarding the charges made against him or her.
Justice Alles attempted to sum up the thinking of the Government and the prosecution on adapting to act in the manner they had proposed by way of a different approach to the manner in which trials were and are conducted in Sri Lanka. The CJCs Act itself states “that the practice and the procedure of the ordinary court are inadequate to administer criminal justice for the purpose of securing the trial and punishment of the persons who committed such offences”.
The reasoning behind these were the following considerations:
The Government had the option of keeping the suspects indefinitely in detention without any trial – a method adopted under many military or authoritarian regimes.
The Government also had the option of summarily executing the suspects. In fact, a large number of summary executions had already taken place. The number of persons killed allegedly as JVP-ers were over 5,000 persons. Very few of them were killed in the course of combat when they were attacking the police stations. Most persons were killed after they were arrested. Stories of those who narrowly escaped due to some accidental reason have been published by several persons. Therefore, it is not correct to assume that the Government was not willing to engage in summary killings. In fact, the summary killings were stopped only after considerable pressure was brought to bear on the Government from many sources including some prominent persons in Sri Lanka itself as well as international organisations such as the United Nations. Those who were not executed at the time owe their survival to various accidental factors. Some of them, like for example JVP Leader Rohana Wijeweera was already in police custody during the time as he had been arrested earlier. Some others, due to the intervention of various people, had surrendered themselves and a few others were saved by some senior officers even at the point when they were in fact taken out of their cells at night to be summarily executed.
Therefore, the need for the CJC cannot be adequately explained by the unwillingness of the Government to engage in summary killings.
Due to the amnesty which was brought about with the intervention of many sources, large numbers of persons surrendered to the authorities on the guarantee that they were given, that they would not be harmed. The parents of young persons who were keen to have their young children saved got many of them to surrender even though they were not seriously involved in any kind of criminal activities related to the JVP. Attendance in some classes conducted by the JVP was not a criminal act. However, even many of those who in that way had some slight link to one JVP activity or the other, which were not criminal in nature, got themselves surrendered for the fear that otherwise they could be subjected to extrajudicial killings. Many of them were later released after periods of detention in the prisons or in some universities; the premises of which were used for the keeping of suspects in custody during this time.
The reason for the CJC appears to be more as a public gesture of seeing that some sort of inquiry which had the appearance of a trial was conducted so that the justification could be created before the public and the international critics that the punishments which were to follow for several of the suspects were based on the findings of an independent inquiring body. However, the truth of that assertion is subject to serious doubt.
What is important from the point of view of the evolution of criminal justice in a negative direction since the CJC inquiry is that self-incriminating evidence was the basis on which the punishments were to be meted out. Further, that those who meted out the punishments could do so outside the normal process of justice. The mere fact that the Commissioners were SC Judges (Chief Justice Hugh Norman Gregory Fernando as the Chairman and Justices Alles, Vincent Thmabinayagam Thamotheram, H. Dheragoda, and Tellipalai Wanarajah Rajaratnam, the latter who was later replaced by Justice Dharmadasa Wimalaratne) did not make any difference to this fact. A SC judge could act only under the normal process of the law and the CJC was by its own admission, not by the normal process of the law. The Commissioners acted as Commissioners and the fact that they were SC Judges were in fact an irrelevant factor. However, this irrelevant factor gave the appearance of the case being conducted by the Judiciary. Thus, the decisions of a Commission were made to appear as the decisions of the Judiciary.
On the basis that five SC Judges were presiding, the right of appeal was also denied. Thus, a decision of a Commission could not be challenged before the SC within the framework of the law prevailing in the country. The Commission’s findings were regarded as final.