The Right to a fair trial
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.
National policy
Stop child abuse |
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.
Sexual abuse
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. |