“Administration of justice is fundamental to the functioning of a democratic society”: Sumanthiran

Following is the speech made in Parliament last week by M.A. Sumanthiran MP at the debate on the amendments to the Criminal Procedure Code and Judicature Act.

MP M.A. Sumanthiran

We are debating these amendments (to Criminal Procedure Code and Judicature Act) that have been tabled for two days. The importance of these amendments can’t be underscored more than that. But I am saddened to see that at an important debate such as this, the entire front row of the Government benches is vacant. 

You have, I can count on my one hand, the number of members on the Government side as we begin the debate for today. The Minister of Justice who presented the bill is not here, nor is his deputy or state minister, the Minister of Foreign Affairs presented a bill which is to be debated later, but connected to these matters of justice – the Prevention of Terrorism amendment bill. He is not here. We only see two, three members right at the back row of the Government benches. This is the seriousness with which the Government approaches an issue such as the law’s delays and the administration of justice in this country. 

There is another matter that I want to address before I get to the subject matter and that is to do with the question that was raised by the Hon. Leader of the Opposition two days ago, after due notice and I don’t think an answer has been given yet. And in that also, the Government is remise, the questions that were posed are of enormous significance. He presented certain figures to show the state of the economy of the country at present. The Government is unable to confirm that after three days.

The state of the economy is at a low and at an unprecedented low and that is something that we as parliament must take note of, not only must take note of but act on because eventually under the constitution under article 148 Parliament is supposed to have full control of public finance. So, Parliament also seems to be remise. If we are not taking proper action with regard to the state to which, the depth to which, the economy of the country has fallen. 

Minister of Foreign Affairs presented a bill which is connected to the subject matter today of the amendment to the Prevention of Terrorism Act. It is strange that on the day he presents a bill to parliament we have in all the newspapers the Minister of Justice saying that this act will be repealed in toto. Prevention of Terrorism (Temporary provisions) Act was brought in 1979 - 48 of 1979, for a period of six months. A temporary provisions act brought for a period of six months and we have lived with it for longer than 42 years now. And that ought to be repealed, that had been promised by successive Governments. 

Now the day that the international community being assured that that draconian piece of legislation will be repealed in toto and a new act enacted in its place, the Minister of Foreign Affairs stands up and presents an amendment bill, calling it “reform”. The Minister of Foreign Affairs would remember that, when I met him in Jaffna about 10 days ago, I told the learned Professor, the Minister, that at this rate the word “reform” will have to be redefined in the dictionary. He did not disagree with me. There’s absolutely nothing new in the amendment that had been proposed. Access to an attorney at law is already there, we even amended the criminal procedure code some time ago, every single thing that is here, is already part of the law.

Making 18 months 12 months, preventive detention makes no difference on the grounds whatever. Because if you are produced before the magistrate during any time, section 7 says the magistrate shall remand the person till the conclusion of the trial. It’s indefinite detention. And that’s what we know; we don’t know of people who have been released because 18 months have lapsed, and no one is going to be released now because 12 months have lapsed. 

Before that they will be produced before a magistrate, who is bound to remand that person till the conclusion of the trial, and the trial is supposed to be in the high court. We only know of persons who have been longer than 18 years, not 18 months, 18 years or much longer. And they are still there under the Prevention of Terrorism Act although in some emblematic cases you have released or consented to release and therefore released some important personalities on bail. 

Yesterday attorney-at-law Hejaaz Hizbullah came out on bail; I am very glad that he is out on bail at least now, after almost two years. The poet Anahf was released on bail; but they were released on bail after resolutions in the UN Human Rights Council and various other places named them, as emblematic cases, as prisoners of conscience. But there are many others who have not had the fortune of being named prisoners of conscience. And they are there for 20 years, 25 years, some for over 30 years. There are at least 300 to 400 people now, at the moment, detained under the Prevention of Terrorism Act, and of whom no one talks about. 

I am also glad that when the Court of Appeal made the order to grant bail, His Lordship Justice Iddawala, of whom we know in this assembly, made reference to this Act and in that short order, three times he used the word “draconian”. But he also says it’s the duty of the legislature to change it. The executive has said that they will change it, and in the meantime, he says the judiciary must interpret it in such a way that the draconian provisions of the law don’t have a negative impact. That’s a welcome order, but I repeat: this has applied to one or two or three persons whose cases have been highlighted. The law must be repealed in toto. This is not even an eyewash, not even an eyewash. 

Now coming to the amendment that has been proposed and before us, I welcome those amendments, as has been said, this comes from Justice Aluwihara’s committee recommendations to expedite the disposal of cases and pre-trial procedure in criminal matters is a welcome move, whatever amendments we make, whatever changes we make even to the rules of court, we still have this perennial problem of laws delays. I heard many members from both sides of the house blaming the lawyers for most of these delays, and I agree, being a lawyer myself. I agree that lawyers are a great part of the problem, but it is not only the lawyers. Lawyers must bear most of the blame, but it is not only the lawyers. There are others, and the system itself has to be put right. These amendments are welcome but these amendments, these patch work, these tinkering won’t help the process. 

I heard a reference made to administrational justice law that Hon. Felix Dias Bandaranaike was brought in the 1970s but didn’t stand the test of time. In 1978 when prime minister J.R. Jayewardene took over, the first few things that he did was to repeal AJL Civil and AJL Criminal and bring back the criminal procedure code and civil procedure code. 

Those laws are good; those procedural laws have a great amount of protection built into it, but they result in long delays. And for modern days we must change that system, we must make it quick, in order to get to the crux of the matter. 

The Minister who spoke before me was talking about files 2 feet, 3 feet high. Sometimes when the brief is big, the question is very, very small, that has to be decided. So, we must find ways of getting to the crux of the dispute and disposing of it in a very quick time. So, in order to expedite increasing numbers…

Thank you, sir, there are only a handful in the Government benches and they too are having their private conference there. No one seems to be concerned about these important matters that are being discussed in this house. And now they are getting up and leaving as well. The minister is not here as I said, no one is here to respond to even questions that are raised properly at a debate, I haven’t seen the front two rows empty like this for a long time. 

These are important issues, because in a country administration of justice is fundamental to the functioning of a democratic society, because that is the place to which an ordinary citizen can go and find relief. Not just between citizen and citizen, but even against the State itself. We have come a long way in finding the State liable towards its citizens and we have a long way to go also. In that, judicial attitudes also need to change. 

There was reference to independence of the judiciary and allegations are traded as usual by the two main parties – saying “during our time we did not interfere in the judiciary”, the other side says, “no… no… no, we did not interfere in the judiciary, you did.” The truth is that you both do; that you both interfere with the independence of the judiciary.

This is just like corruption. Whenever issues of corruption arise, all that the Government benchers say is, “But when you were in office this is what you did.” They don’t say anything about what they are doing. And when the musical chairs change the other side says, “But when you are in office you did this,” both are right, both are true. They just take turns to strip the country of its resources, they take turns to deny the citizens justice and they blame each other when the shoe is on the other foot. That is how this country has come to the state that it is in now. 

And I am calling upon members of this house – I am not saying this from a lofty pedestal or anything like that – I am much a ‘cog in the wheel’ now as any other person is. But I am asking: “Isn’t it time when our economy has hit rock bottom, isn’t it time, when the judicial system and the administration of justice has come to this perilous state, at least now for us to take stock of this together – beyond party lines – and put the system right?” Because if we don’t do that, the citizens will do it – that is how revolutions took place in history.