Thoughts from London

Justice where art thou fled?
James Boswell in his "Life of Samuel Johnson" cites a perceptive observation made by the subject of his book. Johnson had once said that he did not care to speak ill of any man behind his back, but he believed that this particular gentleman was an attorney.

Such opinions about lawyers are not just 18th century fantasies. Two centuries or so earlier Shakespeare wrote in Henry VI (2):"The first thing we do, let's kill all the lawyers."

Today's society would not accept such a drastic method of eliminating any breed however rapacious it might be, though victims of the law and lawyers would have wondered sometime or other what kind of necromancy would result in the extinction of the species.

We know only too well that those who practise the law and sit in judgment in our courts are increasingly becoming victims of malevolence in our society.

If so we need to ask ourselves some fundamental questions, not resort to knee-jerk reactions such as reviving the death penalty or waving puerile admonitions at its own members as the Bar Association has done.

There is no need right now to engage in a debate on the effectiveness or otherwise of capital punishment as a deterrent to murder and other heinous crimes.

The question to ask is whether society is losing its respect in the administration of justice, where the fault lines are, and who is largely responsible for this sorry state of affairs.

The killing of High Court Judge Sarath Ambepitiya last month should certainly be condemned. It is a high-handed criminal act that should certainly not go unpunished.

But so many have been killed in Sri Lanka in recent times, murdered by terrorist gangs, contract killers and other criminals on the loose, without the authorities or the more vociferous organisations in the country raising a finger.

Now a judge is killed and everybody is in a hurry to voice their anger and protest but when lesser people were killed or otherwise suffered injustice they have maintained a deafening silence.

One can understand the Bar Association getting into the act. But even the Organisation of Professional Associations has deemed it necessary to call for justice and the apprehension of those responsible for this dastardly act.

Had it not been a high court judge would all these organisations have bestirred themselves to raise a hue and cry? Where were the great Bar Association and the OPA, not to mention the Chamber of Commerce, when a human rights activist Michael Fernando was hauled before court?

Where were all those champions of human rights at the time when Fernando could hardly find a counsel to appear for him? I happened to be in Colombo at a Commonwealth Press Union conference when Param Cumaraswamy, the UN Special Rapporteur on the independence of judges and lawyers explained to me the peculiar situation in which Fernando found himself.

All this is not a reflection on a highly respected judge who, one is told, dispensed justice without fear and favour. It is a reflection on the state of our society, the apathy, insouciance or sheer helplessness that afflicts us as a community.

Passing through Colombo earlier this month I was struck by the utter contempt in which people hold the country's politicians. That of course is nothing new. People began losing faith in their leaders and their fellow travellers as soon as they came to realise some politicians were even more corrupt than the officials they condemned.

But the tenor of society's anger and disgust today is far more than I noticed last year or even six months ago and it has now spread to institutions whose independence, impartiality and integrity are intrinsic to the effective functioning of the rule of law.

It is not merely the corruption and abuse of power that people see at every turn. It takes a quantum leap when almost everybody is officially endowed with power, making it easier to engage in all the skulduggery and malfeasance.

People are not blind; they are not dumb. Colombo society thrives on tales of derring-do, of bribes given and taken, of influence peddling and who can do what through whom to get what done. Stories of moral turpitude in political and official circles abound.

Three or four decades ago such conduct in the political establishment and bureaucratic circles would be scarce. Today it seems to have become endemic.

The problem is that nothing appears to be done to punish those responsible. Society is aware of the absence of official sanction. All recent governments have been guilty of abandoning the principle of accountability and letting the cancer spread deeper and wider.

Had the Ranil Wickremesinghe government made a lesson of one political heavyweight or crony and shown the public that it was ready to cleanse the stables, it might not have lost public faith.

Today the same appears to be happening. Only the other day President Chandrika Kumaratunga made charges of corruption against sections of the judiciary and police and later clarified that the remarks were based on the report of an NGO.

Whatever it is when the president says so publicly, it buttresses already held public perceptions. The question people will inevitably ask is whether they could rely on these institutions which are integral to the administration of justice.

Could the people expect justice for themselves if the corrupt and the abusers and mis-users of power get away unscathed? Why is the public expected to respect these institutions when those who wield power virtually mock them by their actions?

That is not all. When the legal profession that is expected to provide representation to all those who seek help, is suggesting that it abdicates that responsibility, how much faith and respect could the public have in its integrity or its independence.

Bar Association leadership is reported to have advised lawyers not to appear for the suspects in the Ambepitiya murder. If indeed they have done so, then it is yet another faux pas of the present BASL administration.

It was not long ago that the BASL chief had advised the Supreme Court to use its powers under the constitution to chastise journalists by hauling them up on charges of contempt for criticising the judiciary, a charge that most civilised societies are removing from their statute books.

Perhaps it is time that Bar Association president Ikram Mohamed and others of the same mind acquaint themselves with the UN's Basic Principles on the Role of Lawyers, the Draft Universal Declaration on Independence of Justice, the International Convention for the Preservation of Defence Rights and even the International Covenant on Civil and Political Rights which set out what constitutes a fair trial and the role of the lawyers in this process.

Meanwhile, one wonders how many in the judiciary have read the Bangalore Principles of Judicial Conduct that emerged following an initiative of the UN Commission on Human Rights last year. They would doubtless find it educative and enlightening.

Meanwhile the words attributed to the 16th century emperor Ferdinand 1 should be etched in our halls of justice: "Fiat justitia ruat caelum" (Let justice be done though the heavens fall).

Equality before the law, the right to a fair and impartial trial and the right to legal representation are fundamental rights. Moreover the innocence of suspects until proven guilty is a bedrock principle of law. To deny these is to put justice itself on trial.

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