By Vijitha Yapa
“Our lawyers are like Arabs; they live on dates.” This is a popular joke in the legal fraternity and upon reading The Secret Barrister, one realises it’s a universal phenomenon. In Sri Lanka, cases are postponed for about three months for a variety of reasons – e.g. judges are absent because they’re on leave, lawyers appearing in other cases elsewhere or the prosecution not being ready.
So a trial takes years to complete.
The writer is anonymous but what he highlights is worth studying. Legal delays in Sri Lanka are well known and the fact that not one Member of Parliament has been convicted of corruption in the last four years tells a story.
Various corrupt practices have been brought to light but the searchlight seems to have run out of power.
Writing about incompetent court officers who carry out the functions of professionals, he notes that in criminal justice laypeople are subcontracted to perform strictly legal functions. Incompetence, not chasing up on cases even when a judge has granted a few days’ grace, emails that go unanswered by the Crown Prosecution Service and suspects being freed by judges without evidence are some instances he highlights.
A woman who sought police assistance in a domestic violence case was shocked when the accused was freed due to institutional incompetence. The writer charges that more than half the cases before the Crown Court now involve sexual allegations and the Criminal Bar Association has warned of a “tsunami of highly sensitive sex cases.” He laments that the victims’ interests aren’t put first.
Apparently, half the witnesses surveyed say that they wouldn’t be willing to take part in criminal proceedings on a future occasion. If they were the victims, “they would not entrust the justice of that crime to the state, preferring (or so one infers) that the miscreant go unpunished or be subjected to a more immediate – possibly divine – form of retribution.”
If this is the case in the UK, one isn’t surprised to hear the lament of a kapuwa at a temple in Sri Lanka pleading for justice for his clients in the devalé. “May he meet with an accident and be injured all over, his ribs cracked, his limbs broken and may he lie on the road…” – these are some of the incantations recited.
We’re told that in the UK, there are floating trials where there is no guarantee that a case will be taken up unless another trial ends quickly or is postponed. The author describes how at some “sadistic courts” they’re perennially told that the trial will be held the next day, which event is called a ‘priority floating trial.’
He adds that 50 percent of witnesses interviewed say they will not bother to assist next time. One concurs with the ‘sadistic courts’ reference, to which this rider is added: “If you were a criminal mastermind trying to design a system to deter victims of crime from engaging with the authorities, you would struggle to devise something better.”
How many lawyers in this country are asked the following question on social occasions? “How do you defend someone you believe is guilty – have you ever prosecuted someone you think is innocent?”
To the author, lawyers are simply cogs in the wheel and carrying out their role impersonally is the key to ensuring that the existing justice ecosystem remains symbiotic. If a system doesn’t have the ‘pursuit of truth’ as its goal but looks instead to the best player in a ‘winner takes all’ contest, he asks: “Then where is justice?”
Cross-examination is an essential tool in any trial and the UK is no different. Since trials are held long after the event, undermining the credibility of witnesses is not difficult. “The witness’ statement is a delightful tool for chipping away at a witness’s credibility,” the author points out.
There are also hints of what questions defence attorneys may ask. The manner in which lawyers like the late Dr. Colvin R. de Silva made their case in court is legendary. When Sir Winston Churchill said that “the sun will never set on the British Empire,” de Silva had retorted: “That’s because God doesn’t trust the British in the dark!”
In court, multiple witnesses offer diverse opportunities because a group of honest witnesses giving a factual account of something that happened will naturally diverge in their perceptions and recollections.
There will always be something for a sharp attorney to pluck out as proof of unreliability. When the evidence is different, they’re tripping up on their own lies. When they are similar, it is because they are in cahoots.
To my mind, this is an honest book replete with examples that expose what goes on in court.