Continued from yesterday

The conclusive demonstration of its Untruth follows in the analysis of the ensuing 2nd Argument.

The Law of Contradiction taught in philosophy states: NOTHING CAN BOTH BE AND NOT BE.

But the Presumption embraces 2 concurrent and mutually irreconcilable, i.e. contradictory, statements of fact: that (1) a person has committed a criminal offence and that (2) that very same person is innocent.

Even a schoolboy must see that this is but lurid lunacy.

It is but elementary law that such a contradiction is proof of falsehood.

In fact, jurist and commentator on the law of evidence, Jeremy Bentham, once called it the "Lying fiction of the law".

Therefore, the Presumption of Innocence must be summarily dismissed as literally a lie.

In other words, the principle of the Right to Silence and the further rider of the Non-compellability of the Accused to testify in his own defence is exposed as wholly without justification.

There is here indeed an element of sacrilege about this warped ethic. It flies in the face of an edict of the moral code which in Buddhism is delivered by the Buddha in categorical terms in the injunction in the Prathimokkha to the clergy in their Uposatha assembly to say:

It is to be noted it is delivered in imperative terms demanding compliance as absolute and universal. It is the imperative decree of all religion and all morality. English law has erred profoundly, and disastrously, in venturing to deviate.

It may be said to be simply formed by imperatives of conduct that work. In contrast, English law trifling with truth as it does in the Presumption, with its licence to lie, has invented a vicious ethic that operates in entirely the opposite direction. Making matters worse, it is presided over by a manthram that is only a bundle of words of meaningless and self-contradicting gibberish making a witches’ brew of confusion worse confounded. It is precisely this prescription for disaster that now troubles this country - and actually the whole world beyond.

But argument here is confined to bare mention of this theory as serving to ipso facto refute its corollary of the non-compellability to testify in order to rapidly cross over to the next and 4th Argument of the examination of the cogent "mechanics" of how in fact and in truth the Presumption and its implications ‘do not work.’

At the same time, it is to also demonstrate the converse that doing the opposite of what they decree ‘does work,’ shown below.

This states that only truth "works".

Conversely, whatever does not work is false.

In other than matters of palpable physical fact verifiable by the 5 senses, the fact of "working" being the reflection of the operation of the laws of cause and effect - successfully, where the hypothesis is true, and unsuccessfully where the hypothesis is false.

It suffices to cite the Kalama Sutra as the most magnificent exposition of this rule of logic or thought, whereby we decide on whether something stated is true or not.

It would be apt to first consider, summarily, the "mechanics" of how the Presumption and its implications FAIL, as now, as follows.

It results from:

i. as by far the worst casualty of wisdom and common sense, the disastrous suppression of the "BEST EVIDENCE" under the ‘Right to Silence’ implied under the Presumption, where the best evidence is what is in the innermost heart and mind of the accused in his knowledge of what he himself did, which the Right to Silence and its corollary, the Non-compellability of the accused to testify in his own behalf, excludes against him. This folly of criminal degree is an unpardonable breach of the law’s own imperious and invariable rule demanding production of the "best evidence" - or none at all. It is a gross inconsistency of principle which it fails to see in its Blind Faith in the Presumption.

It is pertinent to mention that former British Prime Minister, Tony Blair, himself a Barrister at Law hailing from Oxford University, entered upon his high office declaring the English Criminal Justice System was "weighted in favour of the criminal and in need of rebalancing towards the victim" and vowing that "in a major reform of criminal justice, we will re-balance the system emphatically in favour of victims of crime".

In this, it is important to note that the Criminal Law is also fundamentally and grievously flawed in the favoured treatment it gives to the criminal as clear from the weighty evidence of the explicit admission by Mr. Blair, who might be taken for a sufficiently authoritative and reliable spokesman for English law.

This is a gross violation of the principle of Equality embodied in Article 12(1) among Fundamental Rights in our Constitution. This alone must serve to demand the ruthless overthrow of the Presumption overnight.

ii. consequent frustration of the prosecution by confining evidence to subs-standard evidence, which, it must be specially mentioned makes the criminal trial particularly upto the oint of the accused being called for an explanation from the dock a doctored SHAM. The grudging allowance of the ‘dock statement’ does not do much to improve the doctored evidential process, as the 96% rate of failed prosecutions eventually proves.

It could at once be all thrown out as utter waste of time and effort if only the above BEST EVIDENCE were elicited, which is bound about 90 to 95% of the time to ensue in confession, and ergo, instant conviction, at the very gate of the law - the first arrest of the accused!

iii. delays involved in forensic - and indeed needlessly theatrical - presentation in Court of such evidence leading to "killing" the ragtag and bobtail of what is left of the prosecution by sheer attrition of time - such delays principally arising from another BLIND FAITH of Sri Lankan law that supposes the number of Courts/Judges we have is what the gods decree, whereas on a rough "guesstimate", the volume of cases might be held to demand not less than 1,000 Courts/Judges. In the Criminal High Court of Kandy, trial postponements can extend currently from as many as 6 to 9 months at a time, which, with greatest respect, is unarguably BAD administration of justice, by overall failure of State policy in the matter, which creates in consequence, POSITIVE INJUSTICE!

Rider: no Court, criminal or civil, should be called upon to undertake more than one trial on a single day, which it MUST get through whether privately retained Lawyers come or not, with the aid of State Counsel assigned to each Court. This is an idea adopted from the practice said to be followed in Continental Europe for the Judge himself to question the witnesses first. It is respectfully submitted it would be an "improvement" to assign the task to a State Counsel.

iv. destruction of evidence in the course of such delay by death ofwitnesses, faded memory, by subornation, intimidation etc. etc.

v. The following citation from a speech made by the late Attorney-General, Hon. K.C. Kamalasabaysan, P.C., cited in the accompanying article, is an eminently authoritative commentary exposing the farce that criminal prosecutions turn into under the perverse auspices of the Presumption, which the inadequacy of judicial "cadres and establishments" - to which, too, as already mentioned, the law is blind, help to aggravate:

"A criminal has a field day. Even if he is apprehended the rate at which the wheels of justice grind is so painfully slow, that by the time he is brought to trial, the witnesses are either dead or unable to give acceptable evidence due to the lapse of time (causing failure of memory) and the accused is acquitted. He is conscious of this fact and carries on regardless with his criminal activities…

In a society where there is no effective and efficient mechanism to mete out justice, a breakdown of law and order is inevitable."

It is to be noted that the learned Attorney-General makes no mention of the Presumption. Except for the undersigned, nobody in the law dares raise a voice against this icon at the top of the legal Pantheon. Though taken for a god, it is actually an "evil spirit" that hovers over and makes a nightmare of the law, spreading its mischief from the criminal department into the civil side as well. No wonder Charles Dickens was driven to say that "the law of England puts all the honest men under the diabolical hoofs of all the scoundrels" - which the undersigned ventures to call the best judgment on English Law he has ever heard, true to the present day even in England itself.

The summation in the learned Attorney-General’s final words alleging "there is no effective and efficient mechanism to mete out (criminal) justice, (which renders) a breakdown of law and order .. inevitable" is (profoundly begging Your Excellency’s pardon in interests of a clinical objectivity in these representations) an utterly "damning indictment" on our criminal justice system. The learned Attorney-General has been absolutely right to say what exists is only a negation of an efficient system, with its continuing running sore of breakdown in law and order.

Nobody then seems to have a clue as to what an efficient system must be. In the light also of the rest of this overall critique, `` I humbly beg to urge, especially in the crisis now officially recognized, that demands a determinedly and ruthlessly purposeful scrutiny and revampment of the working methodology of the criminal law we operate today. Each step of the way must be scrutinized to find out where it has gone wrong.

Rider II: I humbly suggest that all presidential and other official legal advisers should be put in the dock whilst Your Excellency draws upon other eminent persons particularly in other fields of learning familiar with scientific methological research in cleansing the Augean Stables of our legal system. The scrutiny should be indeed ruthlessly and meticulously investigative, finding clear answers to all points of obscurity and failure.

The "pragmatics" of how the direct INVERSION of the Presumption advocated here would "work" is quite simple, and is as follows.

Essentially, by intensive JUDICIAL interrogation, upon oath, and INSTANTLY at first arrest, eventuating inevitably in the CONFESSION of (of course) the genuinely guilty and thereby the FINISH of the prosecution AT STARTING POINT .

By dint of which process it would be possible to extrapolate the direct inverse of the status quo in a rate of 96% SUCCESSFUL PROSECUTIONS!

It is important to add that LIE DETECTORS would be a significant aid of new technology in the above interrogation process. It would largely superannuate and displace Police and other official duress in obtaining confessions. Presently common charges of violations of Human Rights on this score would also disappear.

Convictions attained at first arrest would mean that the need for remand and bail would also largely appear, with the offenders immediately earning their due reward.

In fact, soon Criminal Courts could be cut down by half, if not more!

Law administrators will then need to mind the recommendation of the Laws of Manu said to be comprised within the following 2 lines:

This spells a new and more scientific regime of criminal law that revolutionizes and must eventually replace the present disastrous English jurisprudence the world over. It will in fact spell one of the greatest revolutions in law in modern times.

Capital punishment for capital crime would be fittingly appropriate under such a regime.

Opponents of the proposal might be told, like Hamlet told Ophelia, "Get thee to a nunnery - go!"

Your Excellency has already achieved distinction on the world stage. It is such distinction that can best wage the heroic agitation for this change of the law of the world.

Your adoption of the above proposals would serve to lend them persuasive endorsement. They are inescapable if law and order is to be restored, certainly throughout the world wherever the colossal doctrinal error of the Presumption has spread its malefic roots.

I would humbly urge your favourable consideration of instructions to be given to the competent Sri Lankan officials for formal proposals to be put up to the United Nations, the International Commission of Jurists etc., in a collaborative effort with other States for adoption of consequent amendment of the law beginning with the Universal Declaration of Human Rights in its Article 11, and concurrently our Constitution as well in its corresponding Article 13, in the light of the expose here on the doctrine of the Presumption.

Accordingly, in the light of these submissions, and the more significant official document of the report of the Presidential Commission on Law and Order referred to above, I most humbly implore of Your Excellency, as a measure of compensation as well for past negligence, to put all concerned official branches "on the double" in converting to an active consideration and eventual implementation of the above proposals which are inescapable if justice is to be done to victims of crime, and thus to repair the law’s own ancient wrongs, so that a genuinely just regime of law and order might be established under your Excellency’s administration as rapidly as possible.

Considering that in the main the conversion, at least in principle, is merely verbal, such rapid revolution, it is respectfully submitted, is readily attainable, even "overnight" as suggested above.

Your Excellency, with your kind permission, and so as also to put the above submissions to the test of public opinion, I am releasing this Open Letter to the press.

And so as also to place its message in the most intimately concerned official hands, I am forwarding copies of this Open Letter to His Lordship the Chief Justice, and also the Hon. Minister of Justice, hoping this will assist in readier co-ordination at this very time when the issue of the crime wave is under active consideration, when its more fundamental underpinnings as put in issue here imperatively demand the most anxious investigation at all hands as a matter of national duty on the part of those committed to the administration of justice in this country.