The Sunday TimesNews/Comment

01st June 1997



How to kill... and escape

'Justice delayed, justice denied' versus 'justice hurried, justice buried'

By Mudliyar

The desire to kill is in us. We are prevented from doing so because there are silly laws to punish us if we get caught. Millions of man-hours are lost by people reading silly detective and crime novels where the killer is planning to kill and not to get caught. Thousands of man-hours are lost by people trying to figure out how to kill their enemies and escape punishment.

In this country of the "Dharmadveepa" the rate of murder is the highest or one of the highest in the world, much higher than in the decadent west. Our methods are crude and there is no ingenuity when we want to kill, and we get caught very badly.

We do not have a police force like the 'New Scotland Yard' but we are fairly successful in our investigations. We do not have mythical detectives like Sir Conan Doyle's 'Sherlock Holmes'; we do not need to have one as we have developed more sophisticated methods that were ever known to Sherlock Holmes or the New Scotland Yard.

The brutality of the methods of torture used by our police to extract confessions surpasses the third degree methods used by other countries. 'The ice treatment' is a speciality of one of our very famous detective superintendents. A frozen piece of ice in various elongated shapes is forced through the suspect's anus. These ingenious methods of torture prevent people from killing and escaping. They confess sometimes falsely. Nonetheless the desire to kill remains the same.

In 1973 the then Justice Minister, Felix Dias Bandaranaike, revolutionised the Criminal and Civil Procedure by repealing the time-tested Civil Procedure Code and the Criminal Procedure Code. Mr. Bandaranaike thought there was a need to introduce new laws as the two codes consisted of laws which were nearly one hundred years old.

On November 14, 1973, Stanley Thillekeratna, the Speaker of the National State Assembly certified Act No. 44 of 1973 and the Administration of Justice Law came into being. In the Criminal Procedure the non-summary proceedings were abolished. These are cases where a person accused of killing another is brought before a magistrate and evidence of witnesses was led. The magistrate after the conclusion of the case either discharged the accused or committed it to the assizes for trial.

There were delays in the magistrate courts in concluding these inquires. The wheel of justice was turning slowly. Mr. Bandaranaike thought that by his magic formula, the Administration of Justice Law would lessen the evil and produce instant relief. If there were too many cases in a courthouse and the court was unable to cope with them, the obvious and the most practical solution is to have more courthouses. That alone is not sufficient. There must be more judges, more buildings, more interpreter mudaliyars, more stenographers, more type writers and more stationery. But Mr. Bandaranaike knew these were impossible to find. With all the resources available to his government, nothing could come to his rescue. So he thought that at least in the field of criminal procedure, the removal of the non-summary proceedings would bring speedy justice.

Justice delayed is justice denied, yelled the Academics. But they forgot the dictum that "Justice hurried is Justice buried." Instead of the magistrate hearing the non-summary procedure, there was the Director of Public Prosecutions who had the right to release an accused on bail. Once a person commits murder and is arrested he is brought before a magistrate and is remanded pending his indictment. The Minister expected the indictment to be filed within three months of the murder. How impractical he or his advisers were. The AG's Department had to work with police officers who were either corrupt or simply inefficient. The AG's Department had to work with judicial medical officers and Government Analyst's Department who did not have enough staff to cope with the work. There were inevitable delays.

The legislature believing that the accused could be indicted for murder within three months of the offence, the AJL had Section 75(2) on bail which read "Provided that if the offence under investigation is not one that is triable by a magistrate's court, the magistrate may from time to time authorise the detention of the accused for successive periods of fifteen days, for a period not exceeding three months in the aggregate. "

This provision enabled the accused to go scot free after three months. In the meantime the family of the deceased had gone only to the police and to the coroner to make statements. Almost immediately after the "dane " given in the memory of the deceased the accused was seen in the village. This sent shivers down the spine of the relatives of the deceased. They have not gone to court. Their evidence was not taken in court. Simply nothing happened to their case. The case had been called every fifteen days and postponed and on one fine day the accused was granted bail.

When the case came for trial, the accused had got round the witnesses, and they had become buddies. The poor widow was hapless and helpless and may have even left the village. At the trial every witness except the family goes back on the statement they have made to the police. The court knows that the witnesses are lying and cannot do anything about it. Even the certificate of the police officer that he has accurately recorded the statement of the witness is of no avail. The witnesses are told by learned men that nothing can happen to them even if they come out with a different story.

To our community the solemnity of the oath has no meaning, lying is the order of the day and the truth is the exception. Witnesses were encouraged by the Administration of Justice Law to lie with impunity. Under the AJL our citizens had greater liberties than under the old archaic English Criminal Procedure Act, the liberty to murder and get away without being punished. So long as the AJL was there, a man was prepared to stay three months in remand. He knew how to kill and escape.

During this period, there was one suspect who killed three persons within a space of one year and was released on bail after three months after each killing, and was finally killed by a gang soon after he was released on bail after the third killing.

Soon after 1977 the AJL was repealed and the present Criminal Procedure was introduced. The non-summary procedure was re-introduced. Again there is much talk about laws delays. There is a move to repeal the time-tested non-summary procedure.

If there are delays the most practical way of dealing with it is to have more judges and more court-houses and not by doing patch work legislation. What should be done is to give more power to the magistrate to discharge in a non-summary case than just committing the trial to high court.

I would like to reiterate the words of wisdom of justice in a case reported in 36 CLW 10. "That in the matter of committal for trial, a magistrate's function under Criminal Procedure Code is a judicial one, something more than the finding of a prima facie case, something less than finding the case proved.... Magistrate in the exercise of a solemn judicial discretion should not commit an accused person for trial unless he considers that the evidence is sufficient to justify that accused being put to the heavy expense and anxiety involved in facing a serious trial".

Another interesting method was evolved by a notorious gang leader on how to kill and escape punishment. He did this twice, until he was killed by a fifteen-year-old boy. He would go with his most reliable friend and get the friend to meet his enemy.

Then the enemy is lured to a place where there are no intruders and where the police are in the pay of the gangster. The gangster then puts into practice his plan. He kills his enemy and surrenders to the police station. The main and the only witness is his friend. The police arrest the gang leader and remand him. The Police then recover the knife. The non-summary inquiry begins and the friend simply denies the story in court. The accused is discharged for want of evidence.

The others who have the license to kill are powerful politicians and their supporters. If you are a politician in the government, you can even run the police station. All policemen under normal protocol will have to salute the people's representatives. Today, politicians sit at the OIC's table and give instructions to release their supporters and arrest their opponents. If you are a relative of a politician and have a licensed gun, surely you must have the right to use it even if it is to kill someone. The cold logic is why did the government issue a gun with a licence if you cannot shoot with it. Once you shoot and kill, the top investigators of the CID are used in the probe to do a cover-up job. They get a great pleasure in doing so.

In China during the time of the Ming dynasty, if you are convicted and are to be hanged, you are permitted to buy someone who is prepared to go to the gallows on behalf of you. There were so many people suffering from hunger, starvation and terminal illnesses who were willing to take your place for a few pieces of gold.

It is high time the people of this country took a serious view of how to avoid the politicians interfering with the police. One method is to permit the magistrates to have more powers to assist the investigations. In those days when the local police was hampering investigations, the magistrate handed over the investigation to the CID. Now the reputation of the CID is at a very low ebb. The CID is now entrusted with handling more political cases than ever before. The magistrate must be in a position to appoint an independent team of police officers to handle special investigations, where the police officer will take instructions from him and not from politicians and superior officers.

It would be interesting to ask Professor G. L. Peiris, who cried wolf, wolf during the Punchinilame affair, to find out and tell us the number of complaints made against politicians of this government and whether any government politician have been indicted or convicted. The now defunct Mulberry group rose to defend Mr. Dissanayke M. P. who has several cases pending and wanted to collect his legal fees. They were feeling so guilty that their comrade had been framed unfairly.

We have criticised our politicians for trying to emulate the South Korean government. It was only this week the "Daily News" published a photograph of the son of the President of South Korea charged in court. In hindsight we may have been wrong at least in respect of the prosecutors who had the vision, courage and conviction to charge the son of the President for any wrong doings.

Then I would like to refer the reader to the Mahavamsa account of the justest king that ruled Sri Lanka. His name was Elara. Wilhelm Geiger's translation of the Mahavamsa at page 143 gives a description of how King Elara dispensed justice equally to his friend or foe "A Damila of noble descent named Elara, who came hither from the Chola country to seize on the kingdom, ruled when he had overpowered king Asela, forty -four years, with even justice toward friend and foe, on occasions of disputes at law. At the head of his bed he had a bell hung up with a long rope so that those who desired a judgment at law might ring it.

"The king had only one son and one daughter. When once the son of the ruler was going in a cart to the Tissa Tank, he killed unintentionally a young calf lying on the road with the mother cow by driving the wheel over its neck. The cow came and dragged at the bell in bitterness of heart; and the king caused his son's head to be severed from his body with that same wheel."

On page 144: "When the king, who was a protector of tradition, albeit he knew not the peerless virtues of the most precious of the three gems, was going (once) to the Cetiya-mountain to invite the brotherhood bhikkus, he caused, as he arrived upon a cart, with the point of the yoke on the wagon, an injury to the thupa of the conqueror at a (certain) spot. The minister said to him: 'King the thupa has been injured by thee'. Though this had come to pass without his intending it, yet the king leaped from his cart and flung himself down upon the road with words: "Sever my head also (from the trunk) with the wheel". They answered him: Injury to another does our Master in no wise allow; make thy peace (with the bhikkus) by restoring the thupa: and in order to place (anew) the fifteen stones that had been broken off he spent just fifteen thousand kahpanas."

The chapter on Elara in the Mahavamsa should be made compulsory reading to all children, Sihhalese and Tamil, to show that to be a just ruler the rulers race is immaterial, what is important is his commitment to justice. This chapter ought to be reprinted and sent to all members of Parliament to educate them as to what justice was in those days.

Understanding history of a troubled nation

University of Peradeniya. History of Sri Lanka. Volume II (c 1500 - c 1800)

Edited by K.M. de Silva

Published by the University of Peradeniya, 1995, 614 p, Rs. 1,250

Reviewed by Prof. Ananda Wickremeratne D. Phil. (Oxford)

These days in Sri Lanka there is an unprecedented interest in the history of the island. No longer is Sri Lankan history the exclusive preserve of the scholars and their aficionados who like the proverbial watchmen of the night keep track of the shifting configurations of Sri Lankan history.

The history of the country has passed into the public domain and has become everybody's concern. No doubt the seemingly unending ethnic conflict has a great deal to do with what is essentially a welcome development. All shades of opinion appeal to history as the final arbiter although there are those who argue that in the final analysis history itself, or what is perceived as such, is part of the problem. In the rising tide of often clamorous popular interest and the ephemeral writings this interest generates in the popular press, there is however the danger that the reasoned voice of dignified non-partisan objective scholarship would pass unheard and unnoticed.

For this reason and on account of several others which this reviewer hopes to draw attention to, The University of Peradeniya-History of Sri Lanka, Volume II, published in 1995, merits all the publicity we can give it. The monumental publication which runs into over six hundred pages is an event and not merely just another book on Sri Lanka. In a succinct preface, Professor K M de Silva, the Editor-in-Chief, tells us how the book which deals primarily with the periods when the Portuguese and the Dutch held sway over the maritime districts of the island, and focuses too on the rise and establishment of the Kandyan Kingdom (a fascinating saga in its own right), became a reality and was in the hands of the printer after a long and agonising night of delay and a certain paralysis of will.

The present volume is the successor to Volume I which was published in 1960 and dealt with the ancient and the early medieval periods in the island's long history. In an ideal world the current volume, the second, should have been its logical sequel. Instead Volume III which focused on the period 1796 to 1948, was published in 1973, interestingly in the aftermath of an unprecedented social upheaval. Why this happened is detailed by Professor de Silva and makes interesting reading. It had a lot to do with the Diaspora of the Peradeniya scholars and changes in the administration of the universities bringing with them a genre of small minded bureaucrats who lacked the vision of their distinguished predecessors.

Happily all that is of the past. The fact is that the trilogy is complete and we have in our hands a history of Sri Lanka from its beginnings to 1948 when the long colonial phase ended and the island regained its independence.

The vision of those who conceived the project involving scholarship of a high order which blended existing historical resources, often scanty and uneven, with an ever growing corpus of original unpublished research work, has been vindicated. In an act of graceful acknowledgement of past services to scholarship Professor de Silva remembers the names of Dr G C Mendis, Sir Ivor Jennings, the first Vice Chancellor of the then University of Ceylon, and Professor W J F LaBrooy now in happy repose in the land of the shades. With one or two exceptions all those who contributed to the three volumes, including Prof. de Silva, were taught by Prof. LaBrooy. To the roll of honour the reviewer must add the name of Professor de Silva himself who presided over the production of Volumes II and III from the time they were daunting masses of disorganised paper to the time they emerged from the press.

The well merited accolades notwithstanding, one must go into the complex issues of the merits and demerits of this particular volume. Professor de Silva is needlessly defensive at times in both the Preface and the Introduction. Taking a page from Professor Senarat Paranavitana, who edited Volume I of the trilogy, Professor de Silva cautions us that what has been written on the Portuguese and the Dutch periods in the volume by various contributors may not be the last word on the subject and that in time the work as a whole or parts of it will be superseded by new generations of scholars.

The manner in which both the Portuguese and the Dutch established their power, their relations with the local regional rulers and their skills in adroitly manipulating those relationships to serve their interests, the vicissitudes of their political history in Ceylon (which is surely the more appropriate term for the period under review), and the reasons which led to the demise of their power, are dealt with in somewhat lavish detail. Almost all the chapters on the Portuguese period have been written by Professor C R de Silva whose specialised knowledge of Portuguese activities in Ceylon and elsewhere is well known. He brings to light hitherto little known facets of the stewardship of Portuguese rule.

The economic dimension of Portuguese and Dutch rule is given the importance it deserves by the assignment of separate chapters. Significantly they blend well with the overall treatment of political history in the volume. The tendency to regard economics as an appendage of political history, which was unmistakable in the few works we have so far had on both periods, is amply rectified. There is little doubt that the horse came first and the wagon followed. In this context the four chapters written by Professors Sinnappa Arasaratnam and D A Kotelawala are of great importance. Together they provide a masterly exposition of colonial economic power and its underlying assumptions in the classic age of European Mercantilism. Indeed the strength of these chapters arise partly from the way in which they bring out how rigorously the monopolistic principle regulated by the state came to be inextricably meshed with the existing indigenous system to practically transform the latter.

A particularly noteworthy feature of the volume are the chapters on the Kandyan Kingdom. In Sri Lankan historiography one sees a comparative neglect of a critical phase in the island's history and cultural evolution. Usually Kandy is presented as an extended dimension of low country politics and not as something that was intrinsically and of itself important.

The current volume goes some way in redressing the balance. The simple fact that Kandy which owed fealty to Kotte was viewed as an upstart when she successfully asserted her independence, may have something to do with the tilt in historiography. Or is it as simply also to do with the surreal bias of Sri Lankan historians, many of whom happened to be Low Country Sinhalese. Be that as it may, one looks forward to the day when in the tradition of the three volumes produced so far, a fourth dealing exclusively with the Kandyan period, will see the light of day.

In the volume under review, there are six chapters specifically on the Kandyan period, comprising roughly a third of the book. We see unfolding before us the modest beginnings of the Kandyan Kingdom and its spectacular expansion until it became the most powerful of the regional kingdoms of this period.

The late Professor Tikiri Abeyasinghe, gives a good amount of the genesis of the Kandyan Kingdom and its struggles to maintain its independence. The chapters written by Professor Lorna Dewaraja, which cover the long and eventful period 1638-1796, make fascinating reading. Here we see the ebb and flow of politics in a particularly volatile and unstable phase in the island's history. Throw in a run of able often charismatic kings and a few memorable battles and the most prosaic of historical narratives is transmuted to a stirring saga which many these days may read with wistful nostalgia.

In the hands of Lorna Dewaraja history comes alive, and with good reason. Making a refreshing departure from the approach of conventional historians who are at pains to underscore the presumed impersonality of history by focusing objectively on the forces underlying given events often to the total exclusion of the role of personality in history, Lorna Dewaraja resurrects Rajasinghe II in the traditions of what Frank Reynolds and Donald Kapp so felicitously called the biographical process. Consequently we are better able to understand this period through the eyes of its most involved and emblematic figure, the great king Rajasinghe II. His spectacular successes may well have had something to do with the fact that he took the trouble to master the language of the two foreign powers with whom he had to deal.

Many readers will find the sections dealing with the rise of the Nayakkar dynasty interesting and in these days of identity consciousness, of no small contemporary relevance.

The paradox (indeed one may wonder if in fact it was really that) of a Tamil dynasty ruling over a Sinhala Buddhist kingdom and the complexities arising from the relationship, are dealt with objectively. Was the core issue one of ethnicity per se or a power struggle between an established feudal elite and an extraneously introduced class of economically driven outsiders who were successfully cutting into the turf?

There are a gamut of questions, many still unresolved. Was, for example, the fact that the Kandyan Kingdom was in the final analysis a Buddhist state providing thereby the core unity that subsumed lesser tensions, a possible reason for its success in surviving a critical identity crisis unprecedented in its own history and that of other Sinhala kingdoms that came before it?

One may ponder related larger issues. The volume deals with a fairly long period in the history of the island, from 1500 to 1796.

During this time the island was divided into several kingdoms each of which struggled to preserve its independence. Each resisted the claims of another whose star was on the ascendant and sought to exercise hegemony. Often quondam allies became enemies and vice versa. . With the exception of Jaffna, the rest of the regional kingdoms were Sinhala in terms of ethnic identities.

The merit of the volume is partly that it faithfully tracks the record with all its vicissitudes and twists and turns. If this is the fact, one may wonder if we can justifiably speak of a unifying self conscious resistance to foreign rule, at least for the Kotte period. Such resistance demonstrably came from the rulers of Kandy which makes the marginalisation of Kandy in historiography all the more ironical and inexplicable.

In politics, regional loyalties mattered more than a common notion of ethnic affinity in spite of the presence of the foreigner which may partly account for the constant shifts in political alignments. To bemoan the lack of unity among the Sinhala rulers of this period, is to import ideas of national unity and a pan Sinhala consciousness that simply was not there and was the ideological artefact of a later day.

On the other hand to make political history alone the basis of our judgment would be wrong. Without gainsaying the stubborn power of regionalism, it is clear from both implicit and explicit themes in the very chapters dealing with political history which the respective authors have chosen not to develop (possibly for fear of losing focus), and from those parts of the volume that are concerned with religion and culture, that there was a sense of overarching unity which clearly arose from Buddhism.

This was the unifying thread that held the complex mosaic together. It would be a fatal mistake to overlook the central importance of Buddhism not only in this period but throughout the island's long history. Over and over again we see the strong ideological commitment to its worldview and its ideas concerning the symbiosis between church and state. This fact may also go some way in explaining why kings of Kandy, including those of the Nayakkar dynasty, made a better job of resisting the foreigner than their low country counterparts.

There is little of Jaffna in the volume. Subjugated early by the Portuguese, she was literally out of the larger picture. She played no part in the resistance to foreign rule which characterised the rest of the island regardless of whether such resistance emanated from regionalism, or a Sinhala consciousness of the need to resist, powerfully fuelled by Buddhism. In those areas of the island where there was a sustained resistance to the foreigner, times without number the Sinhala martyr's blood was spilt. The quiescence of Jaffna and her relative non-involvement make somewhat ironic reading today given the clamorous regional claims made by the Tamil movement.

'There is much that the book offers. It is certainly a rich resource. A review can draw attention only to a few salient points and even here it is compelled to be selective. Here we are looking at only the tip of the iceberg. The faults are minimal and do not in any significant way detract from what in sum the Volume is - a solid and brilliant contribution to our understanding of a troubled nation's history.

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