Lawyers and delays in the law

An unfair trial is no trial at all

By Basil Fernando

This article is about the manner in which unscrupulous lawyers can manipulate delays in the law to their personal advantage. This type of behaviour is now a permanent feature in Sri Lanka’s legal system.

Analysis of the methods used for such manipulation are based on experiences from actual cases. Reflections on the behaviour show that, rather than insisting on correcting wrongs the litigants have experienced, unscrupulous persons work out a methodology of manipulation for personal economic advantage.

In cases of serious crimes, trials take place in the High Courts. The most obvious method of taking advantage is to delay the case through different means (sometimes just to accumulate fees over time). It is done to such an extent that, when the case is concluded years later, it is likely that the final prosecutor or judge has not participated throughout the entire process of that trial. In observed cases, there have often been transfers and changes over the years leading to around six different judges presiding over the case at different times. This includes instances where the final trial judge (delivering the verdict) has not heard any part of the evidence.

The result is this: the judges and prosecutors involved have to depend on the printed word from recorded evidence. They do not have the opportunity to see the witness and to form an informed opinion about the truthfulness of the evidence given by particular witnesses.

There is not enough time or ability to deliberate about what witnesses say, how witnesses face cross examination and how issues that arise are being handled. Normally, if a trial is held before a single judge throughout, the judge has enough time to make his or her own personal observations. The judge can also apply their own critical mind and be in a position to assess what they have heard and seen in the course of the trial. However, if the trial judge has to go through most of the evidence by reading through the records, they, like any other human being, are likely to miss vital aspects in the evidence.

In such prolonged trials, six or seven judges hear the case before its final conclusion. Even worse are the many transfers and changes of prosecutors during this period. Needless to say, unscrupulous defence lawyers can take considerable advantage of the situation. For example, there are cases in which the defence lawyer, to his benefit, misrepresents the evidence that was laid out in the case. He will either not reveal the evidence laid out by the prosecution that is disadvantageous to the interests of the defence, or what is worse, he could misrepresent the evidence laid out and claim that such matters are essential to prove the case. 

For example, there can be false claims that no evidence was presented on a particular matter. These tactics can be used to scupper even the rare prosecutions that do take place on serious violations. In a torture case under the Convention Against Torture Act No. 22 of 1994, the following evidence was laid out by the prosecution: the victim, who alleged torture, was in fact beaten at different places on his body, particularly on the leg. The prosecution presented evidence from the Judicial Medical Officers. It demonstrated that there were marks observed during the medical observation that were supportive of the victim’s claims. However, the particular judge before whom this evidence was laid out had been transferred. The final submissions took place after several judges had presided over the case. The defence lawyer claimed that the victim had claimed to have been beaten on the leg but that no evidence was produced in court about any marks or injuries on the leg during the medical examination. The prosecutor, like the judge, had not been there when the evidence of the medical officer was given and was not aware that such evidence had been laid out, and that the medical evidence had confirmed the victim’s claims. The prosecutor failed to point out to the judge that the submission made by the defence lawyer was inaccurate and that there was in fact medical evidence to support the victim’s claim. The judge, in rendering her judgement, came to a finding on the basis of the defence lawyer’s claim that there was no evidence regarding the injuries on the leg and that this implied that the victim’s claim was false. On that basis, the judge acquitted the police officers accused in this case.

Similar misrepresentations of the evidence are possible because the judges and the prosecutors have not observed the testimonies presented in the case over the years. In another instance, also a case of the torture of a young boy, the initial leading prosecutor showed evidence of the victim’s bodily injuries found during a medical examination by two doctors. Furthermore, five eyewitnesses had given evidence on the event of torture. Thus, there was overwhelming corroborating evidence for the victim’s version before the court. It included medical and eyewitness evidence. However, sadly, the judge that gave the verdict did so many years after such evidence was laid out. The defence lawyer claimed before the final judge that there was only the victim’s allegations without corroboration of what the victim had claimed.

The most obvious method of taking advantage is to delay the case through different means (sometimes just to accumulate fees over time). It is done to such an extent that, when the case is concluded years later, it is likely that the final prosecutor or judge has not participated throughout the entire process of that trial. In observed cases, there have often been transfers and changes over the years leading to around six different judges presiding over the case at different times…The result is this: the judges and the prosecutors involved have to depend on the printed word from recorded evidence. They do not have the opportunity to see the witness and to form an informed opinion about the truthfulness of the evidence given by particular witnesses

Given the seriousness of possible punishment, he claimed that such corroborating evidence was an essential element to prove the case. The prosecutor had come to the case at a much later stage, quite close to its conclusion. He either lacked knowledge about the corroborative evidence that was available or had other reasons, but in any case did not object to the false claims made by the defence lawyer. As a result, the judge, believing perhaps that the senior defence lawyer would not lie to the court, accepted his version of the evidence. The accused was acquitted on the basis that the victim’s version of the evidence had not been corroborated by anyone.

A large number of actual events from actual cases can be cited. The key issue is the manner in which some unscrupulous lawyers manipulate and falsify actual evidence laid out in court, and how this is not adequately countered by the other persons responsible (including those responsible for overseeing legal ethics violations). This is possible, as was mentioned earlier, because of the length of time taken to hear and conclude these cases. According to a parliamentary committee, a case could take up to 17 years or more. In fact, there are cases that have taken even longer.

The heart of the matter

In Sri Lanka, the jury system is no longer practiced although the possibility theoretically exists. In the past, all serious crimes, including murder, rape and other serious offences, were tried by jury.

In that situation, the jury is the ultimate judge of the facts of a case. When jury trials were held, they had regular starting and ending times, and jurors had the opportunity to see the demeanour of the witnesses so that they could judge for themselves whether the witnesses were telling the truth or not. At present, the trial judge is the sole authority in judging facts as well as the law for each case. However, when several judges hear parts of cases, the last judge, who delivers the verdict, does not have the opportunity to decide on the credibility of witnesses, which is a central issue in making any judgment.

Therefore, all laws permitting judges to hear only parts of a case should be abolished in order to have the possibility of a fair trial.

Essentially, a judgment written on the basis of evidence not led before the judge who writes the judgment is the result of an unfair trial. An unfair trial is no trial at all.

The abolition of laws permitting the present practice will be resisted on the basis that, given the present state of affairs, long delays in trials are inevitable. If this argument is to be accepted, then it is not possible to avoid the conclusion that, due to the impossibility of ensuring speedy justice, unfair trials are permissible. That is an absurd situation.

A parliamentary subcommittee has already admitted the ridiculousness of delays in justice and made recommendations for the increase of the number of judges, prosecutors, courthouses and the like for the purposes of ensuring the requirements of a fair trial, including eliminating unnecessary delays. Besides this, in expressing their views on the delays that prevent speedy justice, the United Nations Human Rights Committee has also repeatedly recommended to Sri Lanka as a state party not to violate people’s rights by denying them their right to a speedy trial.

Although it is not openly expressed, one of the underlying reasons for the prevalence of this situation is the fact that Sri Lanka is a heavily indebted nation. The underlying argument is that, since we cannot in fact afford anything as we have to pay our debts and interest, we cannot be bothered about the rights of people. This implies that unfair trials are a product of our destiny as a result of the economic conditions we face. If this situation brings about absurdities, there is nothing that the state can do about it. It is this that should be seriously addressed if the whole system is not to become a paradise for unscrupulous persons to make a profit.