Justice Hurried; Justice

buried (Continued from last week)

August 4, 2014
When 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.
!ut the ordinary villager who complained and others who were accused
were brought before a "agistrate of the #rovince. $f the "agistrate
convicted the accused the appeal was either heard by the Supreme Court%
Court of Criminal appeal or by the Court of Appeal. &he senior judges of
these courts heard and delivered judgements and most of them were
reported.
'ur Criminal (aw reports, the )ew (aw *eport and the Ceylon (aw
Weekly were full of judgments enumerating and interpreting the law by
the most sophisticated legal minds of the country. (awyers, even today,
refer those judgments to help the Courts to determine a subtle point when
the prosecution deprives an accused or a person who is aggrieved by the
justice meted out by the "agistrates Court.
As +. *. +ayewardene and his constitutional amendments, paved the way
for provincial high courts and all appeals from the "agistrates Court go
before the #rovincial ,igh Court. -ven if a very valid legal point is
discussed, interpreted and endorsed by the judges of the high court but no
one else would know the rationale behind the judgment as they are not
reported. +ustice has become so closeted that ordinary litigants will have
to appeal against the order of a "agistrate to the ,igh Court, in case their
application is rejected by the ,igh Court of the province or in the event the
,igh Court refusing to revise the order of the "agistrate, then that person
would have to appeal to the Court of Appeal. &he e.pense, the time and
delay cannot be measured. 'nly a very few venture into the realms of the
un/known which is far away from the "agistrates Court, into the original
order, so made. &his has resulted in a grave injustice where a few
"agistrates had used various methods to obtain hurried justice, burying
the essence of criminal jurisprudence which has been developed over the
years by right thinking people and people who have made jurisprudence
their forte.
+ustice &issa 0ias !andaranaike, in a response to a State Counsel who
repeated the much hackneyed clich1 justice delayed is justice denied,
remarked 2$ sometimes strive to understand the points raised by counsels
to find the truth. &he process is lengthy, arduous with pitfalls and dark
abysses and to avoid delays, if one in this noble pursuit hurries then ,
+ustice hurried is justice buried2.
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. +ustice
Salam has brought back the pristine 3uality of the good old days of the
4ueens +ustice where the judge interpreted (aw and did not hesitate to
comment when the findings were e./facie wrong, ad/hoc, capricious to suit
and appease the sense of street justice back to the good old days of the
!ritish empire. 2$f you have taken money pay it back otherwise you would
be remanded is e.hortation of some very minuscule number of
"agistrates
$n the case of an application to revise the ad hoc order made by the
"agistrate, if the ,igh Court had not appreciated the points raised by the
#etitioner and denied intervention, the #etitioner then had no alternative
but to appeal to the Court of Appeal in order to obtain justice from a
patently illegal order.
!ut what is shocking is in this case which $ referred on the last date, when
the matter was finally referred against the order of the "agistrate 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
5eneral who has given very detailed guidelines to the "agistrate about the
manner in which he should deal with the case. &he "agistrate being
overawed by his sense of street justice had callously refused to follow the
guide line given to him by the Court of Appeal.
&his is what justice Salam states in his judgment6
We thus permitted proceedings in the revised application, as we had the
fullest confidence in the learned "agistrate that he would not resort to
e.tra judiciary methods to enforce purported statements or purported
admissions. $n our judgment we categorically observed that the "agistrate
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 789 of the Code of Criminal
#rocedure. 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 #etitioner beyond
reasonable doubt and to bring the culprit to book.
&hereafter, what happened is almost unbelievable in the annals of the
judicial precedents and the simple theory that the "agistrate must fully
adhere to the directions given by the ,igher Court especially when it
relates to an order made, revising the original order made by the
"agistrate.
&he "agistrate is supposed to have read the guidelines and re/remanded
the Accused.
,is (ordship the #resident of the Court of Appeal, +ustice A. W.A.Salam has
even considered whether to charge the "agistrate for for contempt of
court but did not do so as they were not directions but mere guidelines.
&he judges of the Court of Appeal further state 2if 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. $f no payment was made, the
#etitioner would have to languish in remand for life. &he absurdity of the
(earned magistrates order is evident and it is illogicalness2.
$t is very evident that as a few "agistrates do, the Courts are driven by
the desire to dish out hurried justice and the "agistrates are presumably
happy when the aggrieved party receives the money which has been
embe::led by the suspect and at the same time, once the money is paid,
the same magistrate directs the police to file an plaint and the charges are
amended. #resumably the case would be concluded. -ntries are made on
the daily reports sheet that is sent to the +SC showing the number of cases
that have been concluded.
+ustice Salam discussed the concept of hurried justice.
2$n the course of the argument, it came to light that several "agistrates
Courts of different jurisdictions adopt the identical method to deliver
hurried justice. &o my mind, this is cause for unpleasant surprise and
under no circumstances can it be condoned. Such procedure, which is
unknown to the (aw, 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 Constitution2.
&herefore, all those who cry foul that the concept of o the *ule of (aw had
been compromised would sit and observe such rudimentary violations of
this noble concept and would ac3uiesce but would shout hoarse of
e.ecutive action.
*emand 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 !andaranaikes government, called the !ail
Act. &he irony is that in !ail Act, the preamble has it that !ail is the rule
and remanding is the e.ception. !ut 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
dis3uiet. &he 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 ;< years ago, the late &hivanka Wickremasinghe #C, said that there
was a young "agistrate in =alutara who had with meticulous care prepared
an inde. of cases related to criminal law. ,e said that he was pleased to
appear before this "agistrate as he appeared to have a wide knowledge of
the criminal law of the country. &his "agistrate is the present #resident of
the Court of Appeal +ustice A.W. A. Salam.
Posted by Thavam