HULFTSDORP HILL -  By Mudliyar  

Threat to Criminal Justice from hasty legislation
The late M. Vincent Perera, an M.P. and a Cabinet Minister in the J.R. Jayewardene Cabinet never forgot his humble beginnings. He took pride in announcing that he started his career as a Proctor's Clerk. The natural bond he had with the legal profession endeared him to the members of the Bar.

It was a common sight to see Mr. Perera visiting the Lawyers' Chamber of the Magistrate Courts, Colombo to discuss many a subject-politics, music, drama and even Sinhala literature with friends.

It was from him that we learnt that one of the greatest debaters in Parliament during his day was Felix R. Dias Bandaranaike. Mr. Vincent Perera told us that he never missed a single debate when Mr. Dias Bandaranaike was on his feet in the House.
He respected Dr. N.M. Perera and Dr. Colvin R. de Silva for their forensic skills, but Mr. Dias Bandaranaike was a rare individual. He was the youngest Minister who excelled in whatever he did. His repartee, choice of words and the aristocratic manner in which he debated was something to be remembered, but as most young brilliant politicians he lacked one quality. He did not have the practical wisdom of a rustic politician, Mr. Perera told us.

As a member of the opposition Mr. Vincent Perera took up cudgels against the introduction of the Administration of Justice Law. Having been a Proctor's clerk he saw the impossibility of implementing some of the provisions of the AJL especially in relation to the abolition of non-summary proceedings.

He was one of those who urged the then Government to reintroduce the Criminal Procedure Code amendments.

Mr. Jayewardene, as the Prime Minister made a famous reference in Parliament - on a situation where a villager had to wait a number of years before he could testify at a murder trial. By that time much water has flowed under the bridge and the witness had either forgotten the incident or had been bought over by the accused. The Attorney-General's Department virtually becomes an indictment factory where indictments are churned out without discretion. Provisions under the AJL were found to be wholly impracticable in a country where the rate of murder was highest even at that time.

After the introduction of non-summary proceedings there was clamour, from various quarters to repeal the same or bring necessary amendments to prevent law's delays. The bogey of lawyers causing law's delays was chanted like a "mantram". This is a country where the public and the politician act on impulse. No one ever did any research on law's delays. Therefore delays by the Police, delays at the Government Analyst's Department, delays in the Courts caused by the lack of typewriters, stenographers, court clerks and production clerks were never thought to be the causes of delay. The lawyers took the blame silently when officials blamed them.
One day Mr. Perera came to the Chambers of the Magistrate Court with a piece of paper. He said it was a secret document - a Cabinet Paper put up by the Minister of Justice to abolish non-summary proceedings.

He was mad with the officers of the Ministry of Justice. He urged the members of the Magistrate Court Bar to lobby for the withdrawal of the Cabinet Paper. With the help of lawyers like Gamini Dissanayake and Lalith Athulathmudali who held very important positions in the Jayewardene Cabinet, the Minister of Justice had to eat humble pie and had to withdraw the Cabinet paper. Mr. Perera was the chief voice in the Cabinet for the abolition of non-summary proceedings.

In later years President Ranasinghe Premadasa made Mr. Perera the Minister of Justice. It was during his tenure of office, that the profession had no problems in dealing with ad-hoc legislation brought by officials who had absolutely no practical knowledge.

Once again there is a move to amend the provisions relating to non-summary proceedings to permit witnesses to read out the statement that he has made to the Police and record it under oath.

The function of the Magistrate under the amended provisions would be to read out the statement made to the Police and ask the witness whether it was an accurate record of the statement he made to the Police. The provision enables the witness to change his statement either in its entirety or in part .

The officials who drafted this piece of legislation would have only thought of preventing witnesses from going back on the original statement made to the Police. But they never pondered what would normally happen when practically implementing it.

Anyone who witnesses a murder or a grave crime has a tendency to tell the truth at the first given opportunity. Normally when a statement is recorded immediately after a crime, he makes a statement on what he perceives and normally an accurate account of what he saw. Then when the trial takes place a few years later he tries to elaborate on what happened as he becomes aware of certain things from other sources which escaped his attention earlier. A case fails due to unwanted elaboration by a witness.
If the present amendment becomes law, a witness who has described what he saw would have an opportunity of adding various other details and also implicating other people who were originally not named in the first information. It will also provide the Police an opportunity of educating and advising the witness on how a statement ought to be amended.

This will make an impartial criminal investigation an impossibility. Depending on who the complainant is, a witness would change the original statement under duress .

This will open the flood gates to prevarication, and Courts will have to play the most decisive role of permitting witnesses to change their statements.

Any person who becomes a witness in a case involving the underworld will have to succumb to the pressure of changing a statement which has been made to the Police within a very short time of the crime.

He will only have to say that the statement made to the Police was false and that he never mentioned the names of any of the accused and that this statement was an introduction by the Police and that he was not present at the place and time the crime was committed.

The Magistrate would have no alternative but to record the statement thereby permitting the witness to change his statement in its entirety.

Only after few months would, the politician realise that the rate of murder has risen considerably with the rate of crime going up proportionately with the laws delays worsening, with hundreds of indictments pending before High Courts while the underworld thrived.

Thousands of innocent people will be in remand on false complaints, the legal system crumbling, prisons bursting at their seams and chaos and bedlam reigning. Only the Police would have become awesomely powerful!

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