Gajalakshmi Paramasivam

26 August  2020

 

 

13A Regional Jury Verdict

 

In many ways, government elected by majority are like jury verdict. One government action during the pandemic is presented by Professor Felicity Gerry QC of Deakin University as follows, under the heading ‘Jury is out: why shifting to judge-alone trials is a flawed approach to criminal justice’ , in May this year:

[Last month, Victoria swiftly pushed through a bill introducing judge-only criminal trials as a short-term measure to tackle the absence of court sittings during the coronavirus lockdown

The new law, which was cautiously welcomed by the state Criminal Bar Association, puts Victoria in line with other states that already have judge-only trials as a permanent option.

The ACT also passed an emergency bill last week approving judge-only trials temporarily.

In Victoria and other states, there is a requirement for the accused person to consent to such a trial. The new ACT law, however, allows a judge to order such a trial whether the accused agrees or not. This was not welcomed by the Law Council of Australia and is now the subject of a constitutional challenge.]

Article 80 of the Australian Constitution provides as follows:

[ The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.]

 

Section 161 of Sri Lankan Code Of Criminal Procedure Act (No. 15 of 1979) provides for Jury hearing as follows:

[161. Subject to the provisions of this Code and any other written law in every case where at least one of the offences falls within the list of offences set out in the Second Schedule to the Judicature Act, No. 2 of 1978, or in any case where the Attorney-General having regard to the nature and circumstances of the offence determines that the trial should be held in the High Court by a jury, trial shall be on indictment in the High Court by a jury. In every other case and whether there was a preliminary inquiry under this Chapter or not, trial shall be on indictment in the High Court without a jury.]

As per Section 1 of the  said Second Schedule the offenses are

[Offences punishable under sections 296, 297, 300 and 364 of the Penal Code.]

Sections 296 & 297 refer to  Murder and Culpable Homicide respectively.

 

In the case of Miss Vithya Sivaloganathan, the matter was heard in Northern Sri Lanka in  Trial-at-Bar structure headed by Vavuniya High Court Judge Balendren Sashi Mahendran The other two were Jaffna High Court Judge Manickavasagar Ellancheliyan and Trincomalee High Court Judge Annalingam Prem Shankar.

Had the matter been heard by a jury the People of that area would have learnt more about the law and its order. The ‘gap’ between the stated law and the personal law of belief widens when the judiciary fails to deliver as per the truth known to all involved.

Judge Manickavasagar Ellancheliyan made a fundamental breach of Thesawalamai law in the  testamentary case regarding the intestate estate of my brother-in-law of Vaddukoddai. The proceedings ran around the same time as Miss Vithya Sivaloganathan’s murder case. I felt that it was the Dual Citizen Syndrome that resulted in such a breach.

The Nanavati case seems to have been a strong influence on the restructure of Trial by Jury  provisions:

[Commander K. M. Nanavati vs. State of Maharashtra was a 1959 Indian court case where Commander Kawas Manekshaw Nanavati, a Naval Commander, was tried for the murder of Prem Ahuja, his wife's lover. Commander Nanavati, accused under section 302, was initially declared not guilty by a jury, but the verdict was dismissed by the Bombay High Court and the case was retried as a bench trial. This was not the last Jury trial in India. West Bengal had Jury trials as late as 1973. Jury trials were abolished in most Indian courts by the 1973 Code of Criminal Procedure except for Parsis who still have Jury Trials for their Matrimonial Disputes. Nanavati was finally pardoned by Vijayalakshmi Pandit, newly appointed Governor of Maharashtra and sister of Prime Minister Jawaharlal Nehru]

This is also at the centre of Sri Lankan war-crimes hearing structures where customary practices were liberally used by both sides. The current president of Sri Lanka pardoned one such person when he became President. If he fails to extend that to the Tamil combatants – the karma is likely to return in forms similar to the 13^th Amendment which was effectively Jury verdict at the regional level. Tamils of Sri Lanka would continue to invoke such Jury Powers through Common Belief.

In her Indian Express article ‘Is India washing its hands off Sri Lankan Tamils?’ Neena Gopal indicates the possibility of another restructure as follows:

[Colombo’s strategic importance to India, sitting as it does at a key intersection in its southern backyard—where the sea lanes from the Persian Gulf and Arabian Sea connect to the Indian Ocean, and where China has acquired one critical port after another—can no longer be ignored.]

Sri Lanka being a strongly religious nation. A few years back Mr Daya Wickramatunga – a fellow Australian of Lankan origin shared the following with us through his submission to ‘Prayers in the Senate: abolition, retention or change', 2015:

[Australia is essentially a Christian country, by and large. 'The Lord’s Prayer' read at Parliament has been a tradition. As has been stated by William Temple- "Faith is not the holding of correct doctrines, but personal fellowship with the living God". The Lord’s Prayer read at the Parliament is for the faith in the Lord that the parliamentary proceedings would continue uninterrupted, for the greater benefit of the country.]

This applies to every form of belief in that circle of belief. By religion, India’s power through religious beliefs in Hinduism as well as Buddhism, could easily be invoked by Buddhists and Hindus who have deep belief in their homeland as well as our religion. We are protected by our belief  in the constitution also so long as we stay within the areas that cover our rights.

One way to resolve this duality is to have Jury hearings for Buddha Sasana law, Kandyan Law, Thesawalamai Law  and Muslim Law. Then the communities would identify with the outcomes as theirs and not as those enforced on them. The latter carries the high risk of rebellion by minority cultures.