That Nonsense Called Criminal Justice

By Basil Fernando –SEPTEMBER 30, 2021

Basil Fernando

A guy enters into two prisons with a gang of his friends. In one of the prisons he threatens a group of prisoners undergoing trial by placing his pistol on the forehead of one. He tells them what they should do about their case. Inside another prison he wants his friends and himself to take a look at the gallows, to please his appetite for fun in the evening….

The prison guards facilitate his entrance and watch this drama unfold with no attempt at to stop him or protect the prisoners.

Despite a national outcry about this incident (which has generated shock and anger), this guy is still quite free. He goes about without any hindrance attending to the affairs of State. He circulates in the company of the elite  who rule the country.

This guy’s behavior violates everything in the Penal Code, the Criminal Procedure Code and the many other laws for the administration of prisons and protection of prisoners.

These acts also affront the basic legal norm which is a foundation of all Law, including Criminal Law. Note, that the Courts are the guardians of the rights of people, particularly people in prison by Order of the Courts.

Why do all these law books matter? This is a far more disturbing question than even the acts of this guy. The Criminal Law of the Country is governed by the Penal Code and other statutes which create various offenses. The Criminal Procedure Code laid down rules about the investigations into these crimes and the manner in which those who are alleged to have committed crimes should be dealt with. In particular when there is sufficient evidence to demonstrate that the allegations against them appear to be true.

The entire Criminal Law Administration is an exercise in which certain acts are treated as punishable offenses. A crime therefore becomes a meaningless word if it is not followed by the necessary actions that the Law has laid down to be enforced when such a crime is reported. If a crime is committed, and it is reported, and the alleged criminal is left outside the Law, then that is not merely an abuse of power. It makes the whole process of declaring certain acts as crimes, a meaningless affair.

The above-mentioned incident is just one of such happenings. The Laws in the statute books relating to crimes are demonstratively being relegated into matters that are irrelevant. The list of such cases which have taken place in the not so distant past could fill up volumes. In all instances, the declarations of acts as crimes and the enforcement of those declarations or statutes have an enormous gap between them. It virtually conveys the message that under normal circumstances these Statutes do not matter. The appearance that these declarations about crimes through various statutes matter, is shown by a random example. It keeps up the show rather than create any convincing argument that there is a legal system that one needs to respect and fear. Each reader can imagine for his or herself the long list of things from among those matters that are reported in the public arena. The impression that the Criminal Law need not always be enforced is illustrated.

The question that is really worthwhile to ask is why such a situation has come about in Sri Lanka? There are various ways of approaching that question. One argument could be that defining crimes and punishing crimes is not really a worthwhile exercise. And, we Sri Lankans can develop a very unique method of not having any crimes being recognized within our country. That is not a question of a crime-free country! Rather, it is a country where nothing is considered a crime. Is that the ideal that the nation is pursuing?

Although, from the theoretical standpoint, such a situation can be described as absurd and ridiculous, the actual situation of the country comes very close to that. The only difference is that there are books which declare certain things as crimes. Therefore, abstractly speaking, Sri Lanka has not come to the point of openly declaring what its actual policy is regarding crimes. The gap between the concerted manner in which the crimes are not considered crimes and the declarations found through various Statutes, are going in two completely different directions.

This situation is like a new kind of philosophical form. What it says is:  ignore what is in the written laws as they are not the way by which we govern ourselves. Continuing, it says that we have, by our concrete practices, developed another set of principles. Our actual practices are based on those unwritten practices. It says that if you break these unwritten practices, you may be punished!

Thus the unwritten laws and unwritten practices have created another set of unwritten laws. BUT, these unwritten laws are rigorously enforced while the written laws are virtually ignored.

One may go on to ask, why has such a situation arisen? The answer once again is judged by the factual ways these problems are dealt with. These written laws are an obstacle to the manner in which we think progress should be achieved in the country. In other words, strict practice of Criminal Law and the laws of Criminal Procedure are seen as obstacles to the manner in which the exercise of power is being envisaged. That lawlessness is a better situation to achieve than that those in power want to achieve. Abiding by the written laws of the country, is in fact, a way of getting oneself undermined in the proper exercise of power. Power then virtually becomes the predominant philosophy relating to the Criminal Law in the land.

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