Perhaps for the first time in the contemporary history of Sri Lanka, an important debate is now taking place on the need for judicial reforms. This debate has come about as a result of a statement made by the Bar Association of Sri Lanka with regard to a public statement made by Deputy Minister Ranjan Ramanayake MP, relating to corruption of some judges and lawyers.
Judicial reform covers a long range of issues such as corruption, extraordinary delays in adjudication, questions relating to the professional integrity of lawyers, threats to judicial independence and a long range of issues relating to failures in law enforcement and the rule of law.
At the centre of all these problems are some of the constitutional reforms that took place by way of the 1972 and 1978 Constitutions, which undermined the judiciary and favoured the undermining of the fundamental notion of the balance of power and favoured greater powers given to the executive. Clearly the executive wanted to diminish the influence of the judiciary and relegate its role to a lesser position than what was envisaged under the Soulburry Constitution of 1948. The imbalance created has over a period of few decades spread into all the branches of the administration of justice. As a result, there is a substantial transformation of all the basic institutions of justice for the worse. These transformations have been well documented. Such documentation provides an important reference points on the areas which require urgent reforms. The Asian Human Rights Commission has in the past decades consistently pointed out to many of these serious defects. Here, we wish to reiterate some of the basic issues, with the view that in the course of the present debate, greater attention would be paid to these issues.
The entire process of criminal justice had been seriously undermined. The system of policing – which is the premier crime investigation institution in the country – is clearly unable to cope up with its primary obligations and public complaints about this institution have been seriously on the rise. The criminal investigation process which is envisaged in the Criminal Procedure Code is being often neglected to an extent that a tendency has developed among the public to distrust the possibility of the pursuit of justice even for very serious crimes. One of the causes for the increase of corruption is this distrust. People look for alternative methods for solving disputes rather than relying on the legal process.
The problems arising from the policing crisis has impacted both the system of prosecutions and the judicial process itself. When investigations are flawed, there is hardly anything that the prosecutors and the judiciary could do to ensure justice for the victims of crime. It is therefore, essential to improve the supervisory role over criminal investigations both by the prosecutors (Attorney General’s Department) and the judiciary itself. Some legal reforms, keeping in line with the law and practice relating to criminal investigations, in more developed jurisdictions may point to the direction in which such supervisory roles should be enhanced in Sri Lanka. Improvement of accountability for investigation into crimes, by the higher authorities of the police and proper exercise of their command responsibility are some of the essential requirements of such improvements.
At the heart of the problem is the stark deterioration of disciplinary processes in all the branches of administration of justice. Absence of a regulatory process where public complaints against the failures of the system is authentically, competently and speedily investigated is one of the major causes of the failures in the justice system. There needs to be improvements in the Judicial Services Commission, including expansion of the membership of the Commission, the introduction of avenues for making complaints relating to the failures of the Attorney General’s Department, and the speedy introduction of a regulatory framework over the legal profession as a whole, must be urgently attended to, if any credible change is to take place.
There is no justifiable reason at all for the failure of non-implementation of disciplinary processes, within these important institutions. The only way to assert that no one is above the law is to ensure that the required discipline is enforced within every branch of the administration of justice.
It is simply childish to engage in a debate as to whether corruption is prevalent within these institutional frameworks. Public anger against such corruption and inefficiency is overwhelming. The energies are better spent on finding ways to improve the system’s performance.
The legal community as a whole and the Bar Association of Sri Lanka in particular would do better if they direct the present debate towards finding best ways to improve the system as speedily as possible. No one benefits from being an apologist for a failed system. What is required is to use all the intelligence and energy available for speedy change which will benefit everyone except those who wish to remain corrupt.