Sunday Times 2
Law and order as a process
View(s):Process is the processing of an object — the legal item. Law and order’ has been discussed considerably in this column, from various angles.
There appears to be no end to the perspectives from which the matter has been examined, often in the context of specific incidents. The reason is that the critical element of law and order — that of the function of processing within the law as the object, within the order — has escaped consideration through all the dimensions that it has been approached. Due process in the application of the law has not been followed, but applied blindly.
Processing is the means beneath the stipulations, the substantive provisions, by which the work gives meaning to the set law. Bare application of law terms, instead, without their underlying meaning, serves little. The familiar term due process is the simple application of the law terms at adjudication. But due process is only a means of strict application of the legal tenets, without deviation. That approach has resulted in much untoward results as low rate of convictions. This low rate of convictions is in fact due to the absence of a method of processing of the matter before court but rather following a simple application of the tenets in a technical manner. Some illustration will help.
An offence or dispute before court can either be productively dealt with in the proposed sense of meaningful processing or unimaginatively put through ‘due process’. With the former the prospect of resolution is better; with the latter the case will end only in statistical terms. There is tension and difference between the two.
It was in this context that the conciliation means was introduced to allow for some meaningful processing to the general body of law. That initiative was resisted by courts on grounds that the judicial power of court is usurped by the conciliation boards. That opposition was the formal aspect. Beneath that formality was also the fact that in so many of the situations processing of the disputes inter partes was more productive with conciliation, than mere determination by courts. The antagonism yet persisted with formal courts, denying better prospects through a productive processing process to serve law and order the better.
Still other examples can be cited. Thus, statements of witnesses recorded, now, with signature and attestation, are nevertheless, in spite of everything, allowed only for contradiction, as before, not for corroboration. Power concerns may have stayed the change. But, as a result, the prospect for more meaningful processing was thereby blunted.
The reasons for denial of prospect of meaningful processing are many. These were discussed before. Brief repetition is yet necessary to make the point. Firstly, the given law after independence was strictly maintained merely to serve the interests of the elite law professionals. Power was their consideration. Later economic and financial impulses helped to further consolidate elite power. These impulses were remunerative. No change which would reduce profit was readily accepted. The imperial/colonialist mind too set these matters firmly in place.
Discussion thus far has been in the area of criminal law. The need for processing arises, however, in the area of constitutional law, too. Constitutional reform would gain much if these foundation issues were also subject to the processing as noted above. Else, they would be dealt with only within the strict power confines. These charter terms are static — no processing takes place. The suggestion is that, for constitutional terms too, processing helps to further the objectives of the constitution.
A plain example will help. Germany is constitutionally united. Angela Merkel, at her retirement, said in answer to a question, unification is given but unity is yet to be achieved. That there is much processing yet to be achieved was implied thereby. Constitutional stipulations will remain so in the absence of process to come to grips with the problem.
It was in this very context that changes only of a cosmetic nature have been considered. Police reform has been proposed repeatedly. Inevitably, any ‘police reform’ proposed was carefully calibrated, not to disturb the given order. Thus, no law changes to better police reform were considered. No consideration is there that redistribution of the order, instead of reform, will help to relieve the weight to an extent.
For example, in Japan, many serious indictable cases are dealt with at the prosecution level with legal representation on either side. The result is, that by reason of this redistribution — (without reform) — of the cases, are subject to some processing, only 10% go for trial, 90% are subject to processing.
Drawing closer to law and order, the rule of Law, the Criminal Justice System, (CJS) are today seriously impaired in their task. These are today assailed in many respects: political, economic, financial, and socially in a manner unheard of for several long years before. Rule of Law, CJS, AG, Police, Prisons, are the subject of expletives embarrassing to repeat in an article as this. These malinfluence on due judicial determination has the result of bare law with little law and order content.
All this may sound some sort of legal discourse. On the other hand, this processing is a simple principle inherent in nature. All nature is movement. Processing is intrinsic to movement in nature. Even earthquakes are the product of a process. One has heard, recently, of compost manure and its peremptory urgency. Composting is a process innate, inborn, in compost manure. Nature cannot be improved upon. Alignment is surely instead expedient.
Though all this is applicable in other spheres, law and order and its surrounding framework, could equally, and profitably take note. Or else, we’ll experience an absorbing process, whenever and where ever it leads before our eyes, to demonstrations, to crimes, to corruption, and to disillusionment.
(The writer is a Retired Senior Superintendent of Police. He can be
contacted at Seneviratnetz@gmail.com)