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by Ravi Perera

According to the judicial statistics less than 4% of criminal prosecutions in our courts are successful. In other words, almost all of the accused persons (save for that paltry 4%) are found not guilty at the end of their trials.

Police on patrol - “declining confidence”

In our economy conscious world, this is the kind of statistic that will have angry stakeholders of an enterprise on their feet demanding the head of the CEO (Chief Executive Officer). No enterprise can justify its existence on these figures.

But of course the judiciary is not just any bread and butter enterprise. Its business is justice. And justice is not only about convicting. As much as the guilty must be convicted justice demands that the innocent be acquitted. So it can be argued that the 96% who went scot-free were in fact innocent of the charges against them. And, if it were the case, our judicial system is indeed delivering the services the taxpayer is paying for.

But then we all know that this is not the case.

Criminal activity in Sri Lanka has now reached a stage where the very survival of a civil society is under threat. Contract killings, gang robberies, pack rapes, drugs to small time thieving have become the order of the day for most of our harried citizens. White-collar crime, bribery, cheating and other illegal activities have almost assumed an air of an everyday practice. If you believe that 96% of the accused persons produced before our courts were innocent you got to be from planet Mars!

How can a system be so out of touch with reality?

I am afraid what has happened is that the people have walked away from the system. They have retreated, physically and spiritually, from the judicial arm of their sovereignty. It is only those who are compelled by dire circumstances or those who have absolutely no choice, come to court.

Only a very few brave souls will consider bringing to court a complaint of a transgression of a legal right due to the understandable fear of becoming victims of the system themselves. This is obviously a sad and unhealthy situation. In countries where they have in place a transparent, honest and expeditious legal system people tend to be litigious. This truly is the test of the acceptability of a system.

When referring to the judiciary here, we are not limiting it to the judges only. For there to be effective justice other integral parts of the process like the police, court staff and the legal profession must pull their weight. If all or any one of these institutions is below par ultimately justice cannot be done.

There is no purpose in a judge releasing a bail bond of a suspect if that man has to bribe a court clerk to get his money back. If the lawyers don't present their briefs well a judge's task becomes very difficult. Similarly, there cannot be justice if the Police of a country is contemptuous of the law and is politicized. Therefore if we are to raise our legal system from the rut it is in, the entire judicial process must be looked at as a whole.

In 2002 the Marga Institute conducted a survey of the judicial system of the country. This survey was done on the basis of statistics and opinions obtained from stakeholders of the system who are identified as judges, lawyers, court staff and litigants. The latter of course should be identified as the major stakeholder. The findings of this survey are most alarming.

According to the executive summary of the report neither the court users nor the stakeholders have a high level of trust in the system. A very large majority of the persons surveyed believed that our judicial system was not always fair and impartial while a majority believed that the position was better five years earlier. Among the major complaints were the susceptibility to corruption, inaccessibility and the slow and lethargic attitude of the judicial system.

In assessing the services offered by the various arms of the system the lawyers fared poorly. Only 15% of those surveyed thought that lawyers provided a good service while 62% assessed it as average.36% assessed the services provided by judges as good while 49% gave it average marks.

One of the commonly accepted reasons for the unsatisfactory performance of judges was poor case management. In this survey generally the police and the court staff had the least amount of confidence among the stakeholders. It appears according to the survey that both the seekers and the dispensers of justice in our country were dissatisfied with the performance of the judicial system. Public opinion surveys and statistics of a service are invaluable tools to assess and improve it. All surveys have a margin of error and a possibility of bias especially due to the manner in which questions are selected and worded. But they always reflect a reality. There is no gainsaying that our judicial system is in crisis.

The findings of this survey will not surprise any one who has had occasion to visit any of our courts in recent times.

But what is the solution? Obviously there is no simple answer to a problem, which has built up through the years due to an amalgam of reasons including attitudes, tendencies and cultural traits of our people. In developed countries a career as a lawyer demands burning the midnight oil virtually every day.

There is tremendous pressure on them to maintain high standards in both professional ethics and output. Judges work long hours and even a whiff of corruption among the court staff will be immediately investigated. The process and the practice of the law are indeed taken very seriously in these countries. We in Sri Lanka tend to be laid back and generally stir ourselves to action only after the damage is done. The tag of averageness that the legal profession has been given by the litigants is surely not very complimentary for a profession, which considers it self learned.

The Marga report itself suggests certain remedies which merit serious consideration. It recommends among other things tightening up the system, immediately reacting to allegations of corruption, bifurcation of the legal profession, improving the knowledge of English among practitioners and enhanced remuneration for the judges. These are fairly obvious measures but vitally important if the system is to be turned around. To implement some of these ideas the executive and the legislature will have to cooperate with the judiciary. This is not something easily accomplished in this country. Some of the suggestions of the Marga report require strong and independent persons from the legal profession to act without fear or favour. One can only hope that the profession can rise to the challenge.

While writing this article we read in the newspaper about the brazen shooting of a person right in front of the Police depot at Havelock road. This is a place where there is a heavy police presence due to the facilities located there. The assailants obviously did not let this deter them.

This crime brings us back to the 4% conviction rate in our courts. Leave alone a learned profession, no self-respecting adult should participate in an enterprise, which has only a 4% success rate. This system, which is obviously dysfunctional, is not a judicial process but an embarrassment.

If 96% of the accused eventually walk away free why does the system compel them to go through the ordeal of a trial?

Our judicial system has adopted some of the finest features of foreign jurisdictions held in high esteem. These features have worked well in these countries but appear far less effective here. Ultimately any system is as good as the people who implement them. The commitment, intelligence, and culture of the implementer are what provide the lubricant to a system. Without that human input any system will not work to its true potential.

By various sections of the judicial process smugly blaming each other for the appalling rate of convictions in our courts we can never tackle this problem. They got to work together and address the factors that are responsible for these poor results. The Police must do their investigations thoroughly, the prosecutors present their cases well and the judges should not hesitate to convict if persuaded by the evidence.

Obviously this is not happening in our judicial process today. Crime is rampant but only 4% of the accused are found guilty. If a person is stabbed to death in front of five eyewitnesses for example can a court find the assailant not guilty of that act? After all, the law and the courts must work in the real world. The judicial process should not be arbitrary and uncertain like the outcome at a roulette table.

Our law-abiding citizens are at the mercy of criminals every day of their lives. It is very rarely that the police promptly investigate and apprehend the culprits. Even on those rare occasions when the offender is found, the judicial process turns the lives of the witnesses into a nightmare. They will have to spend many hours in a court waiting for their trial. And according to the statistics only 4% of the accused are eventually found guilty.

Our citizens surely deserve a better deal from their judicial process!

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