Not allowing the option of jury trials in ‘politically excitable’ cases

Sunday, January 01, 2017

Consternation accompanied by fervent chest beating on the part of the Tamil National Alliance (TNA) in regard to the acquittal of suspects (including three Navy intelligence officers) charged with the murder of TNA parliamentarian and lawyer N. Raviraj in Colombo in 2006, is an instructive lesson in regard to the evils of political game-playing.

Notably this vehemence had been absent regarding the unconscionably delayed legal inquiries into the killings of five Tamil students in Trincomalee and seventeen aid workers in Mutur during that same year. Neither was a whimper raised when the Unity Government deafeningly trumpeted that the independence of the judiciary in Sri Lanka had been restored subsequent to the defeat of former President Mahinda Rajapaksa in 2015. On the contrary, this outrageous claim was fully supported by the TNA at the time.

Greater prudence not seen

Thus the single act of sending a sitting Chief Justice home by executive fiat (notwithstanding the many evils perpetrated by that worthy) and sitting in his place, a Chief Justice of Tamil ethnicity was paraded as having addressed minority concerns. While the (unfortunately) un-blinkered among us took this assertion with a grain of salt, it resonated with an international community which was too relieved to have seen the last of the Rajapaksas to seriously question this preposterous assertion. Suffice to say that this mischievous propaganda spin was backed enthusiastically by the Government’s political partners and cheered on by its civil society supporters, including most reprehensibly by the Bar Association of Sri Lanka which should have exercised greater prudence.

Two years later, this profound lack of foresight if not manifest political dishonesty haunts us. Failures of justice range from the dismal performance of the hyped anti-corruption effort and inability to seize the ill-gotten gains of the Rajapaksas to spectacular failures of justice in regard to extra judicial executions, enforced disappearances and torture. This is precisely why the state party report before the United Nations Committee against Torture (CAT) some months ago was a weary litany of the same justifications and excuses put forward by its predecessor. This is also the same reason why state agents responsible for the most grievous abuses during the Rajapaksa decade reinvented themselves as ‘yahapalayana’ flagbearers.

And last but least, this was why the worst counter-terror draft law since Sri Lanka’s independence was drafted in secret even while the initial draft to replace the Prevention of Terrorism Act (PTA) by the Law Commission of Sri Lanka was unceremoniously discarded. Ironically (given its conservative bent), the Law Commission’s draft, albeit with gaps including its ambivalence on giving a suspect the right to legal counsel at the very first stage of arrest, is far better than the other secretive counter –terror draft .

Leaving the Rule of Law dysfunction untouched

In whole, the change in Government switched faces around in power but left much untouched under the surface, particularly where the prosecutorial and legal process was concerned. Grave concerns of the Rule of Law were kept in abeyance. No effort was made to separate outstanding concerns regarding the country’s dysfunctional justice institutions from political ‘spin.’ The Raviraj acquittal is the most recent manifestation of this.

Let us take the central premise of the objection relating to the acquittal which focuses on the all-Sinhalese jury that heard the matter and came to the conclusion (reportedly) that the accused cannot be convicted based solely on the fact that they were identified by several witnesses in the case. Certainly this is not the first case which involves the prickly issue of acquittals of (Sinhalese) accused by all Sinhalese jury trials in cases involving atrocities perpetuated on Sri Lanka’s minorities.

There is a long string of such cases, including the Mylanthanai Case where the accused Sinhalese soldiers opted for a jury trial with a Sinhala speaking jury. Witnesses were brought all the way from Trincomalee in the Eastern province to the capital Colombo for the trial. The accused were acquitted on 25 November 2002.

The acquittal occurred despite overwhelming evidence to the contrary as buttressed by (then) High Court Judge, the late S.Sriskandarajah’s observations urging the jury to reconsider its decision in the light of several factors in the evidence placed before it. However, the same verdict was returned by the jury.

Trial-at-bar more suitable in ‘excitable’ cases

More recently we had the acquittals of the accused in the mass murder of twenty four Tamil villagers including women and children of the Kumarapuram village in Trincomalee in the same circumstances. So there is a pattern which cannot be airily brushed aside on the assumption that these acquittals were right and proper because they were arrived at through a legal process.

That said, to focus solely on the argument that the Raviraj acquittal poses a crisis of credibility where gross atrocities relating to Sri Lanka’s minorities are concerned raises the risk of missing the ‘wood’ of Sri Lanka’s dysfunctional justice system for the ‘ethnic’ trees so as to speak. This caution against jury trials applies across ethnicities. As expounded by (the late) Justice T.S Fernando way back in the early 1960s, the introduction of trial without jury in cases which up to that time had been triable by jury was based on the rationale that ‘the chances of ensuring an unbiased jury at times when public feeling is profoundly disturbed, whatever be the cause, are considerably lessened.’

If diligent scrutiny takes place of the many historical markers in that regard, this caution was true, for example, of jury trials in relation to cases where (Sinhalese) suspects were acquitted in the killings of (Sinhalese) civilians by all Sinhalese juries as well. The fundamental (and commonsensical) principle here is that a trial-at-bar is the most appropriate mechanism for cases that give rise to excitable public opinions.

Sober reflections in order

As 2016 draws to a close, sober reflections are in order. As last week’s column pointed out, Sri Lanka’s justice system works when it has to. It does not work when there are other considerations in play, most notably the lack of political will and the convenient subversion of the legal process by interested parties, including judges, prosecutors and others with vested interests. Civil society pressure is most useful in changing that dynamic provided that there is a basic element of genuineness in responding to the problem.

It is time to deal with the crisis of justice as a core national concern instead of cosmetically or only as a concern confined to the country’s minorities.