Justice Asoka de Silva

[Ed. Note: The speech below was given during the induction of the new president of the bar association of Sri Lanka, Ajantha Atukorala, in March 2001. The author is the president of Sri Lanka's Court of Appeal. The title was added by the editor.]

Ladies and gentlemen, I am here with you today on this important occasion of the induction of the newly appointed president of the bar association by reason of the demand of custom. May I take this opportunity to extend my personal best wishes to the new president and secretary.

After much contemplation on the nature of this occasion, I decided it opportune to draw your minds to a burning issue in the current legal and social scene: the emergence of the ominous signs of a breakdown in effective law enforcement and the rule of law. For instance, a lawyer is shot down in the vicinity of a provincial court. A judicial officer is manhandled by an unruly element inside the court premises. The accused are cut down and murdered in public places in the vicinity or, indeed, inside the precincts of the court. Witnesses are threatened and abused. Investigators are shot down in organised violence. The list is long and varied, but the central theme in these activities is the same: the disruption of proper law enforcement and legal process.

The criminal legal arena comprises three elements: two mighty gladiators - the official bar, which ordinarily represents the prosecution, and the unofficial bar, which ordinarily represents the accused - and the indomitable judiciary, which is the referee and dispenses justice endeavouring to strike a balance between the two antagonists. In the middle of all this are the law enforcement agencies and the litigants without whom the gladiators would have no battle to fight and the referee would have no issue to decide.

Combating crime is no simple matter. Again, the task is threefold. It cannot be done by law enforcement agencies alone. Overwhelming evidence gathered by the investigator can be turned into a shambles by a shrewd defender unless effectively and diligently prosecuted and protected by the prosecutor. Weak presentation of a prosecution can disgruntle a competent investigator, just as a shoddy investigation into an otherwise formidable case can dishearten the prosecutor. The role of the defence is also paramount - punching holes in the prosecution's case, thereby raising the standard of the next prosecution - if all are willing to learn from experiences.

Hence, I say that the prime responsibility of combating crime rests on the law enforcement agencies, the bar and the bench working together with understanding and cooperation. By cooperation, I do not mean that the defence must cooperate with the prosecution. What I mean is that a diligent defence will result in a diligent prosecution or vice versa, and both will ensure diligent judgement and better investigations in the future.

Now, to come to the main theme of my address today, while the bench, the bar and the investigators act out their respective roles on stage, very little consideration is given to the most important pieces in the game: the victims and the witnesses, on one side, and the accused person and witnesses, on the other. Let us give a moment to the reporting of a crime.

Reporting a crime means activating the law enforcement authorities by giving them the relevant information of the commission of a crime in order that the culprits may be apprehended. The information of a crime may come in numerous forms: by a victim, by a witness to a circumstance or by an interested party. It may come via the media, by anonymous petition, by a telephone call. The motives for reporting a crime may be quite diverse: the victim or his kith and kin may seek their vengeance through justice, the bystander may be moved by civic consciousness, the petitioner may seek to nurse a private grudge by informing on a third party and so on.

Of these, a vital role is played by the civic-conscious person. Generally, such persons form the backbone of a case by providing independent and indifferent evidence. The present trend of criminal activity strikes hard at the civic-minded person who also entertains some degree of self-preservation. The term "underworld" has clawed itself into our vocabulary during the past decade and is wedded to the term "contract killer." The ruthless and frequently fatal assaults on persons by criminal elements on contract is quite sufficient to deter civic-minded persons from continuing to be so. Thus, the continued availability of the civic-minded witness appears to be rather doubtful, if not non-existent, in this scenario.

This leaves us with the vengeance-seekers and petitioners. It would appear from current news reports that the vengeance-seekers prefer to settle their differences on the way to or from court or inside the court premises with their own brand of savagery that is far removed from the law. They little realise that, apart from achieving a notoriety and some perverse self-satisfaction, if at all, the damage they do to the social fabric which they themselves live in is, with each passing incident, fast reaching irreparability. Here again we find the words "contract killings," "underworld clashes," scorched into our minds and into our once gentle society.

The petitioners, of course, are a law unto themselves.

Laws delays may be irksome, but the root causes for the serious deterioration of law and order are far beyond that. They are fast becoming embedded in the fabric of our society. The reintroduction of the death sentence, enhanced punishments, draconian bail laws and other such measures do not, to my mind, really eradicate the root causes but, at the most, may cause some deterrence. The adoption of these measures is akin to using a disinfectant on a cancer. I shall not to any degree endeavour here to identify those root causes. Let it suffice if it tickles your imagination.

The identification of the dangers I have set out are neither novel nor dramatic. I am merely voicing with authority the concern that all of us have had for some time now that we are in the midst of great danger, not really to our physical being, which is a secondary issue, but to the moral structure of our society. We are gradually approaching that stage where complaints of crime to law enforcement agencies will be few and far apart and summary justice may become the order of the day.

This worrisome situation is not confined or special to this system alone. I would venture to say that this gun culture which has begun to plague the system was born and nurtured elsewhere in foreign jurisdictions, and it is the virulence that has now spread and caught up with us and is threatening to overwhelm us. We of the law must now apply our legal minds to the subject. It is our duty to our nation, our society, our children and to ourselves to endeavour to curb this rising trend of lawlessness to suggest solutions and remedies now because that is not the intent of this speech. I only hasten to say that the time for hastening has come.