Sunday Times 2
Towards a people- friendly judiciary
View(s):
The visions of a Supreme Court (SC) in the eyes of the newly appointed judges are contained in their statements made at their ceremonial sittings. These statements are reported in the Sunday Times of January 24.
Their assertions being candid about the fact that the SC is not people friendly as it stands kindle hope in the people that the SC means business. This clarion call is most welcome. For, in fact, and, in truth, the idea of a people-friendly legislature or executive is presently not there.
For the judiciary, the SC is then the last bastion of hope the people can have, of such people-friendly idea that is owed to the people. Of course, there have been other vision statements of a people friendly nature elsewhere, for instance in the National Police Commission. But in most of these instances, these expectations were not realised. Reasons for disappointment were many. In the current context, too, law and order also fail people-friendly requirements, as evident in the SC call. With SC now taking upon itself to help out, the prospect springs hope in the people’s hearts. Some previous experiences of a setback in the people-friendly vision are nevertheless useful to recount here to prevent a recurrence.
Unlike perhaps the more isolated previous SC calls, it is noteworthy that the latest SC call is from a ‘fuller bench’.
Laws not people-friendly
The SC call now speaks of people-friendly laws for judicial administration, with yet more authority. For, laws relevant to law and order of the people, made since independence, are laws not people friendly. Instead they are lawyer friendly. They are made so by the law professionals themselves to serve their vested interests.
The exceptions in this manner of lawmaking are few and even negligible, in effect. These laws, different in that they were people friendly, were even actively resisted by court administration. The Administration of Justice Law (AJL) of 1973 is a case in point where such resistance denied the people of a people-friendly law – just because it was people friendly in particular and was not lawyer friendly. This reality is one further difficulty the SC would therefore face in its people friendly endeavour.
Ethics are only platitudes
The SC call then beckons action. People-friendly notion entails a value. Another difficulty the SC needs then to contend with is the ethical value in a people-friendly idea. Albert Camus said in the Rebel Part III, The Fastidious Assassins: “A value to come is, moreover, a contradiction in terms, since it can neither explain an action nor furnish a principle of choice as long as it has not been formulated”.
A people-friendly value will then surely have to contend with this fact too, that value can have any meaning only with action. In fact, field experience in law and order tells of values emerging from within the very action, itself; the people know this well. All our codes of ethics and oaths taken with no action, fail effect, on these very grounds. No action, no value. Value codes in ethics do not halt action, nor start action. Law and order likewise falls short of the action-oriented value of people-friendly aspect. The SC call needs, therefore, to focus attention on this aspect, specifically.
People-friendly social action
In further explanation of its call, the term ‘social action’ is used by the SC judges. That plea has possibly the makings for great expectations. The reason is that social action is intrinsically people-friendly. Consequently, they are different from executive action, from judicial action and even from legislative action. Social action, as termed by Max Weber, is action taken on by the response of the person acted upon, the society. Action independent of such social response is then less likely to be people-friendly. The SC reference to social action is, therefore, entirely pertinent. No action; no value.
People-friendly administration of law
All these ideas are, nonetheless, submerged within the better-known notion of rule of law. Bingham identified administration of the law in courts as one vital ingredient and element of rule of law. Laws delay, notwithstanding any other, has strained the rule of law beyond its elasticity, and this just by simple effort. Laws delay is then surely not people-friendly. Law and order stretched so to breaking point is surely not people-friendly.
Disappearances too from police custody, added to the unfriendly law administration, somehow do not engage any other authority on a people-friendly note. Rule of law is then helpless to promote the people-friendly concept in such law administration. The task for the SC is here onerous. The SC plea is clearly for equal access to friendly justice without discrimination.
People-friendly lawyers
The call of the SC must necessarily resonate the same in all aspects. This SC plea, however, incurs much poignancy because the assistance of the Bar Association of Sri Lanka (BASL) that the SC seeks in its ceremonial invocation is, itself, severely faulted, in limine. The problem is corruption in the lawyers. This ranges between 95% and 99% as they have reported to Parliament. Can the SC then deliver on its ceremonial call for people-friendly law and administration aided by lawyers? The SC call nonetheless needs support. The prayerful invocations of the SC are then surely not to be reduced to mere utterance, just by this one fault.
Unfriendly executive and legislature
The SC call may not reverberate as well outside the courts. It is important nonetheless, that there should be no reversion to business as usual. The worth and the dignity of the SC in its statements should be upheld in a meaningful manner. This call to the SC is from the perspective of law and order as well as with justice. The prospect, however, for law and order from the Executive is deeply disturbing. Interference in law and order by the Executive is political and invidious. For such involvement of the Executive with law and order only brings in the influence and the votes, not law and order. The legislature, on the other hand, meekly passes to the judiciary the laws that are not people-friendly, but only lawyer-friendly.
The hope, therefore, for the people-friendly law and order from that quarter of the Executive and the Legislature is, possibly, rendered in vain.
Post-colonial yet?
The pleas of the SC are in fact for the ‘people-friendly’, for the sovereignty of the people, and for law and order. We hear all this, in fact, in a continuing supplication and in a familiar petition of our post-colonial mindset. We have now to ask for what we ourselves have not given to us – for over 70 years – without SC appeals. The ongoing denial or neglect of these virtues, we yet ask, even though constitutionally stipulated, they yet bespeak of a post-colonial failure. No country that has been forever independent, with never a colonial past, did ever ask for the likes of these, for sovereignty of their people, for people-friendly laws and for law and order of the people, and not of an elite.
Even at this point after much lapse of time, it is now left to the constitutional reformers to set this aright, to straighten what has been going erringly. These reformers may fare better if they get over their colonial and elitist mind set and make with firm assertion for sovereignty of the people in which a people-friendly law and, law and order administration, are implicitly asserted.
With the avowed call of Supreme Court justices, “Hope springs eternal in the human breast.” (Alexander Pope)
(The writer is a Retired Senior Superintendent of Police. He can be contacted at seneviratnetz@gmail.com TP 077 44 751 44)