Sugath Kulatunga.

During the last few months, we had the crude shock of so many cases before higher courts getting dismissed due to technical errors in the filing of the case. The most recent and appalling one was the CBSL Bond case which could not be continued as it was apparently filed under a wrong offense.  A number of Bribery cases failed as all three Commissioners had not signed the plaint. There are also astonishing examples where the Police have deliberately fixed cases. Our system of prosecution process is based on the adversarial system and is enshrined in the Constitution in Article 13 (5) as ‘Every person shall be presumed innocent until he is proved guilty: provided that the burden of proving particular facts may be placed on an accused person.’ In a few countries like France, they follow an inquisitorial procedure. Failed prosecutions due to administrative lapses are a gross violation against the society which had undergone loss and trauma due to those serious crimes. Justice delayed as in most Sri Lanka cases is justice denied. It may be useful to adopt some of the valuable features of the French system to ensure justice expeditiously.

Following are a few relevant extracts from a comprehensive article on the French system.

https://www.researchgate.net/publication/317037650_Prosecution_in_France

Public prosecutors/magistrats in France sits at the center of the criminal justice system, deciding which cases enter the system and influencing the way they are dealt with, from criminal investigations through to sentencing. Although founded on a strong inquisitorial tradition, with the procureur or juge d’instruction responsible for the investigation of criminal offenses, piecemeal reforms have seen the French criminal justice system adapt aspects of more adversarial traditions, often as a result of adverse rulings from the European Court of Human Rights (ECtHR).’

They are independent judicial officers with a strong public interest orientation. Although procureurs do not have the same status as judges, their belonging to the same
professional body gives them a strong ethos of independence. They perceive themselves as
accountable to the law first and foremost, rather than to their hierarchical superiors. This
accountability to the law is dominant in the professional discourse of magistrats. The
compendium of ethical obligations of magistrats issued by the CSM in 2010 provides in its
preamble that: As members of the judicial authority, magistrats draw their legitimacy from
the law, which requires them to be independent and impartial, principles also imposed on the other powers. Disregarding these imperatives would compromise public confidence.”

Legislation follows this recommendation and proposes the introduction of a new
article 39-3 CPP providing that the public prosecutor ‘checks the legality of the means
implemented by [police officers], the proportionality of investigative acts with regards to the nature and gravity of the offence, the opportunity to carry out the investigation in this or that direction, as well as the quality of its content. He ensures that investigations are aimed towards the determination of the truth and that both inculpatory and exculpatory evidence are collected, in the respect of the rights of the victim and of those of the suspect.’ The law defines the role of the procureur during the investigation in similar
terms to that of the investigative judge. However, as already noted, the two types of
investigations are fundamentally different in nature: whilst the juge d’instruction can request the assistance of the police in carrying out her investigation, the procureur supervises the investigation conducted by the police themselves.”

It is for our legal experts to look at the worthy aspects of the French magisterial system and adapt it into our system which is fast losing public trust.

Sugath Kulatunga.