Justice Sri Skandaraja, judicial hearings and the path we trod

Wednesday 05th February 2014 Last week at the Colombo General Cemetery we attended the funeral of Justice S. Sri Skandaraja, the President of the Court of Appeal. Se eral hundred mourners bra ed the mid!day sun to salute the memory of a man who had "i en a lifetime of ser ice to the le"al system of this country, a "ood number of those years as an employee of the State. A simple God!fearin" man whose conduct best epitomised, at least in respect of one case before him, the famous Latin le"al phrase which translates to #let justice be done thou"h the hea ens fall$% in other words, justice must be realised re"ardless of the conse&uences. Contro ersial affair 'hat case was of course the epoch definin" matter of the former Chief Justice Shirani (andaranayake who had mo ed the Court of Appeal for an order of Certiorari and Prohibition to &uash the findin"s of the Parliamentary Committee on the basis of a) failure to adhere to rule of law, b) breach of rules of natural justice, c) unreasonable, and*or capricious and*or arbitrary action and d) prejud"in" the issue. An Appeal Court bench

which included Justice Sri Skandaraja issued the writ as prayed for and as they say the rest is history. As to be e+pected when the le"islature of a country mo es to remo e its Chief Justice, it was a contro ersial and ery public affair. ,any an opinion, most with circumspection, but some more loudly, were e+pressed in the country about the justness of the alle"ations a"ainst the former Chief Justice and the procedure adopted to remo e her. Justice Skandaraja perhaps thou"ht the procedure faulty. -hether that jud"ment of the Court of Appeal was what the ideals of justice dictated in the circumstances will ha e to await the erdict of the court of history. 'he idea of justice .t is clear that the idea of justice as it has e ol ed in ad anced le"al systems is not a matter for small men with mean minds. A country where i"ilante justice is administered routinely cannot claim to ha e a rule of law. / en the blackest serial killer is entitled to the best of the system in his defence. 'he law is firm but is also fair. -hile the wron"doer may finally be found "uilty, both he and the obser in" public will ha e no doubts that the jud"in" process was infinitely more ci ilised and superior. Such standards are not totally outside of our social*historical e+periences. 0ne case which we are able to point to proudly is the well!known (andaranayke assassination case, which was heard in 1231. 4ollowin" the foul assassination of the popular Prime ,inister, his widow Srima (andaranayake had become the Prime ,inister by then. .n the committal 5non!summary) proceedin"s before Chief ,a"istrate 6.A. 7e S.-ijesekera, there were se en accused persons. 0ne 7ickie 7e 8oysa was also produced in court but was dischar"ed before the proceedin"s be"an. .n the course of the non!summary one of the accused was "i en a conditional pardon and made a crown witness. At the end of the ma"isterial in&uiry accused -imala -ijewardena was dischar"ed by the ma"istrate.

At the trial before Justice '.S. 4ernando in the Assi9e court, the crown case was represented by G./. Chitty :.C. while the first and second accused 5(uddharakkita and Amarasin"he) were represented by Phineas :uass, an /n"lish silk. 'he other accused had ery capable le"al teams defendin" them. At the end of the len"thy trial the jury were unanimous about the "uilt of three of the accused 5(uddharakkita, Amarasin"he and Somarama), while findin" accused Anura 7e Sil a not "uilty. .n respect of accused 6ewton Perera, the jury was di ided with a majority findin" him not "uilty. .n his concludin" remarks Geor"e Chitty :C who led the prosecution team complimented his formidable opponent :uass :C in the followin" words; #,r. :uass came here as a stran"er to the bar, but he is a stran"er to us no more. -e ha e had a few sharp e+chan"es across the bar table, but bree9es in court are ine itable in a trial of this nature. .n the few months he had been in our midst he has become a "ood friend to us all. . wish to say farewell to him in the 0ld 'estament sense of <fare thee well=>$ 'o the other defendin" lawyers too ,r. Chitty was "racious; #4rom ,r. -eeramantry . ha e learnt that it is more interestin" to tra el hopefully than to arri e. 4rom ,r. Shinya . ha e learnt that that if one approaches a difficult task with a show of li"ht!heartedness and "ood humour, one can create the illusion that the task is an easy one. ,r. Satyendra has demonstrated that youthful enthusiasm can "o a lon" way with an almost fri"htenin" kind of competence=$ After the jury erdict was handed down Justice '.S. 4ernando addressed

the accused in the followin" manner; #?ou ,apiti"ama (uddharakkita by the unanimous erdict of the jury ha e been found "uilty of conspirin" to kill ,r. (andaranayake= . do not wish to harrow your feelin"s any further than say that bein" a (uddhist myself . ne er thou"ht . would ha e to perform the painful task of passin" the sentence of death on a (uddhist monk= ?ou @.P. Jayewardene ha e just heard the unanimous erdict of the jury that you too were a party to the conspiracy which sent a man so belo ed by his people to an untimely death. 'here is nothin" further that . need to say to you= ?ou Anura 7e Sil a you ha e just heard the foreman>s erdict that you are not "uilty= ?ou Somarama who appear to ha e been the instrument of the conspirators, wore a hallowed robe at the time of the commission of the crime= (y a di ided erdict of the jury you 6ewton Perera ha e been found not "uilty. ?ou owe your life to the labours of your counsel. (y your own showin" you are "uilty of conduct unbecomin" of a Police officer. ?ou should not dis"race the Police force by remainin" in it a second lon"er=$

Life s death .n the appeal hearin" before the Court of Criminal Appeal , /.G. -ickramanayake :C appearin" for the appellants raised a &uestion of law referrin" to the substitution of life imprisonment for the death sentence by the Suspension of the Capital Punishment Act of 12AB. Althou"h soon after the assassination of the Prime ,inister this Act was repealed by the Parliament with the intention of reintroducin" capital punishment, no e+press pro ision was made in respect of the offence of conspiracy to commit murder.

.t was ar"ued that the .nterpretation Act is clear on the re&uirement of an e+press repeal, in the absence of which the ori"inal situation pre ails. 'he Court of Criminal Appeal a"reed with this ar"ument and the sentences of (uddharakitha and Amarasin"he were accordin"ly made into imprisonment for life. 'he Pri y Council to which the accused appealed did not alter the con ictions either. Later the Go ernment of the day sou"ht to present a bill reintroducin" the death sentence for the offence of conspiracy to murder but ran into such a storm in the Parliament 5from both sides) that it abandoned that ill!ad ised effort. Search for justice 'hat was fifty and some years a"o. -e then had /n"lish speakin" juries which due to irre ersible de elopments "radually faded into disuse. 'he concept of trial by a jury which came to us with /uropean le"al systems ine itably led to ernacular juries. 0ur courts seem to ha e abandoned juries alto"ether now, perhaps subse&uent e+periences pro in" them meanin"less. 'he costs of criminal in esti"ations and trials ha e become so prohibiti e that most jurisdictions now look for e+pedient methods of case disposal. (ut certain countries can not only afford but also think that justice is a fundamental tenet of its e+istence. Cecently in the State of Ari9ona DSA there was the much!publicised case of Jodi Arias, a former waitress. She was accused of murderin" her boyfriend 'ra is Ale+ander in a brutal attack in his apartment. 'he State pro ided her with a defence team and also met the e+penses for all her witnesses includin" e+pert witnesses. 'he bill footed by the State of Ari9ona for the defence of the accused woman alone in now estimated at about DSE F.A million. Jodi Arias still has se eral appeal options open and of course the State will pro ide for all that. -hen we add up the costs of the in esti"ations, prosecution, judicial, security, custodial facilities and so on, the cost should be hittin" somethin" between 1G!FG million dollars. And this is just one case in a society which takes the idea of justice as crucial and therefore e ery cent spent in the search for justice is money well spent. Sri Lanka As much as Ari9ona is not Sri Lanka, 1231 was ery different to what we ha e become today. 'he Latin phrase about justice bein" done e en if the

hea ens fall is sometimes attributed to a belief of the time that the sky may actually fall on one>s head if the "ods of ill!fortune so decree. .t may be that the concentration of power and its unfettered ability to either reward or punish in present day Sri Lanka has made most of us to iew that e entuality as a real possibility now. (y its scope and desi"n the judicial system is a creation of certain social alues and sensibilities. 'o function effecti ely the edifice re&uires independent men of learnin", skill, inte"rity and coura"e. .n a diminished society these are not attributes found abundantly. Perhaps it was so fated that Justice Sri Skandaraja was to be on a bench that had to decide on doin" justice e en at the risk of the hea ens fallin" on them. (ut in makin" that decision he has surely earned a ri"ht to an honourable mention in the court of history, of course sittin" a healthy distance away from the loud and "audy happenin"s of the day.