Sunday Times 2
Whither justice in criminal law?
View(s):
When two opposing litigants are given the court’s decision, justice may or may not have been served in the decision.
Justice is a value that cannot be physically touched, smelt through the nose, or tasted by the tongue. Justice on the ground is felt differently than it may in the higher realms.
In criminal law, justice figures differentially at ground level and calls for examination. Here, justice entails a value. The value in justice is its worth, its significance and its consequence. The examination then becomes similar to a pathological breakdown of the idea of justice. Value and worth attached to justice can be measured from action and are not determined by laboured expression.
Feelings then are the relevant factor. To the average man in his ordinary understanding, justice is neither obscure nor mysterious. He feels the want of justice in his veins. At times, the man on the street experiences justice and is elated by his positive feeling for justice. This inspires confidence and trust in the system as the man in the street understands what justice is. To convey a sense of identity in the man on the street with the criminal law system, is the purpose of justice in criminal law. Justice, it will be seen, is something to be served. When it is justly and fairly served, justice is elevated to its due heights, its due meaning and value. Regrettably, rarely do such feelings prevail in our country.
Feelings of injustice are instead the order of the day for the man in the street. He sees injustice all around him. He feels it in his bones, though may not be in chapter and verse. The man in the street feels injustice all the more starkly when he is deprived of justice only because he could not afford the price paid by his adversary. So, it is injustice that is served with a price. ‘Justice’ or rather a favourable adjudication, bought at a price is downright injustice. Feelings of deprivation are then far more acute when the man in the street senses the economic factor.
Therefore, feelings, both positive and negative, make for a loose idea of what justice means to the people. That means justice has lost its moorings; it has become obscure and lost its connections with reality. This then is the background in criminal law.
In this context, criminal law, as generally administered, is plainly reduced to a matter of contention between two parties. Justice then is to be practically dispensed. This often invokes a mechanistic determination, dropping in the process the more important purpose. It will then yield little justice. An illustration is expedient.
For instance, doctored video tape evidence is rightly considered as a violation of the evidence. But this very evidence, whether doctored or not, was yet undeniably an unbecoming conversation inimical to justice in the case of the Director General of the Commission to Investigate Allegations of Bribery or Corruption (CIABOC). And that is the glaring fact that has escaped the law. Again, there are many court cases where technicalities of inconsequential doubts have been deemed doubtful of the truth of the matter in issue, in effect striking down justice.
In the case the CIABOC DG, there is more to it than has received attention. When making appointments to such posts, although integrity of the highest order is what is required, the appointing political authority, more often than not, selects a person pliable for his or her nefarious, even treacherous, objectives. It is only to be expected that a person thus appointed will make hay while the sun shines. It is the person making the appointment with such motivations that should get a kick in the pants as summery justice.
Be that as it may, a different approach is to consider ‘productivity’ as delivering justice in criminal law. Productivity includes related expressions: to produce, to deliver, to generate, that which is justice. Productivity is a familiar word in other spheres of activity, as in politics, economics and agriculture. In the judicial area the idea of productivity is strained, yet compelling. But in the realm of justice the concerns are of feelings, noted above, and of values. Values are felt and upheld and the value must be in the action itself and immediate, not to be processed later. Justice is of similar import as value. The problem, however, is that such concerns have not engaged justice in criminal law. As a result, justice, together with morality and ethics, just float about in mid-air in the area of criminal law. They do not touch on action.
The area of criminal law is often technocratic in practice. It is not difficult to understand why the court process can end at 1 pm every day as said in evidence before a Commission. Justice so determined is in the hands of those who hold the reins of control, and the average man is then left to fend for himself as best as he may.
An entirely new dimension from economic impulses hovers over all concerned. All These have a detracting effect particularly on justice. It is no secret that the Criminal Justice System (CJS) is riddled with problems of profit for justice, at all levels of the CJS. None in the CJS has strived to exert a corrective influence on the other. The system has degenerated to a level that justice is being marketed. The average man looks up in awe.
Justice in criminal law is as much relevant to the other organs of law, as it is to the judiciary. It is equally the responsibility of the legislature and the Ministry of Justice, in the preparation of the criminal law for justice. Within the conventional exercise of law, justice may come or may not come. There is no quest for justice per se, more so for justice in criminal law.
Justice, morality and ethics are the common good. So, justice in criminal law must remain as common good. But in the wake of economics engulfing the system, what is the solution?
No faith can be placed in law reforms within the prevailing system, as law professionals who wield power over enactment of laws, will hijack it at some point and ensure loopholes for their benefit.
As repeatedly stated by me earlier, people power is the only way out of the prevailing system that is rotten to the core.
(The writer is a Retired Senior Superintendent
of Police. He can be contacted at seneviratnetz@gmail.com – TP 077 44 751 44)