by Prof.Rajiva Wijesinha M.P.
I have been deeply disturbed by some reactions to what seems a spate of criminality relating to the abuse of children. The argument is that we should respond to this by reintroducing capital punishment.
This is absurd, and not only because punishment should always fit the crime. Capital punishment for murder is another question, but that we already have, and the simple fact that it has not been implemented indicates the deep disquiet felt in general about the process.
What we certainly should not do is introduce capital punishment for other offences, and then go through the horrors of either implementing it or else keeping people indefinitely on what is termed death row.
The chairman of the Human Rights Commission was deeply moved during our recent visit to the prisons by the plight of those incarcerated in this manner, and I trust he will urge a review of policy in this respect. Equally disturbing however was the evidence that emerged there of injustices related to protracted sentencing, in a case that also made clear the perversities that can affect our judicial system when dealing with emotionally charged issues. Putting in place mechanisms to avoid these, or to provide remedies when they occur, is also part of protecting Human Rights.
Review of judgments
Unfortunately we have no coherent system of checking on the judiciary. At the recent seminar on contemporary issues in South Asia arranged at the Bandaranaike Centre for International Studies, a bright young lady from the Law Faculty pointed out that we had no mechanism for review of judgments of the Supreme Court, and that it was up to Parliament to fine tune legislation to deal with instances in which the courts subverted the clear intention of the legislature – as for instance with judgments concerning mandatory sentences for statutory rape, or the provisions designed to prevent crossing over with impunity by parliamentarians.
She was right, but there is also a sense in which the courts should monitor their own performance, and for this academics and civil society should contribute by analysis of judgments that do not conform to the law. I do not mean by this criticism of judgments with which individuals do not agree, for as I have often noted the decisions judges make should not be interfered with.
However the principles on which those decisions are made must be affirmed – with arguments for change if that seems desirable – and for this purpose judgments must necessarily be subject to scrutiny.
The judiciary must then make their own internal arrangements to promote precision as to the law and better mechanisms to ensure that all judges adhere to the law scrupulously. For this purpose the Judicial Services Commission should lay down guidelines and also monitor their implementation, with systems to advise and if necessary correct judges who stray from them. This should not be in a spirit of recrimination, since we must understand that even judges are human, and can be swayed by emotion or indeed by the skills of clever lawyers.
The Secretary to the Ministry of Justice has indeed asked the Chief Justice to convene a meeting of those concerned with law enforcement to discuss such guidelines, and in particular to promote conformity with national policy regarding limiting custodial sentencing and indeed adversarial legislation, but thus far there has been no progress on this. Certainly it seems that inadequate use is being made of mediation procedures, which recent legislation was supposed to encourage.
I was told of a recent case in which a boy was sentenced to a remand home for stealing a pigeon, which seems a very bizarre conception of justice when the matter could easily have been settled in a more positive manner.
Radical changes in the manner in which judges are trained and their skills updated is desirable for all this, but for this we need an active and imaginative Judges Training Institute. It is a pity that the usual practice of appointing senior judges to head this has now been changed since, however capable a junior judge is, he would lack the authority to ensure development, while also getting the participation of the best jurists in the country to stimulate productive responses in the courts.
Unfortunately, given the laudable determination of judges to defend their independence with regard to decisions, they sometimes lose sight of their own shortcomings. They are as much subject to the law as anyone else, and to the need to conduct themselves with dignity and restraint.
The fact that some politicians do not observe such restraints is no reason for the judiciary to follow suit, and this is the more important for those whose profession is treated with a respect that, rightly, does not extend to the profession of politics.
In dealing with the principles involved, and the need for reform, including through better training, I have left myself hardly any space to look at the case which initially prompted my attention to this subject. I refer to the case of a man convicted of sexual abuse of his own children on what seems very dubious evidence, with the claim too that the child mentioned that she had been told what to say by her mother.
Despite this, the judge had sentenced him to 36 years in jail and a hefty fine, failure to pay which would have led to further incarceration. Appeals were disallowed for what seem very flimsy reasons. And efforts to ensure commutation have run into blocks, which may be strengthened by the current spate of emotion, based on cases very different from this one. I can only hope this will not prevent rational review, and measures to institute such reviews whenever aberrations seem to have occurred.