Thus Speaks the Judiciary

27 June 2018 12:00 am - 0     - {{hitsCtrl.values.hits}}

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Two very recent court decisions deserve attention. One is the prison sentence imposed on Galabodaaththe Gnanasara Thera for criminally threatening a litigant who had sought recourse through courts to find her missing husband, a veteran journalist. The second involves the granting of Rs.400,000 by the Supreme Court, as the cost of appeal to the wife of a smoker who died of lung cancer. The first shows that, after all, the rule of law applies to all without distinction while the second is vital in terms of the scope of litigation that it opens up for future litigants as well as the judicial recognition that legal procedures are being used or misused by the able to delay and deny justice.   

The judgement of the Homagama Magistrate on the abusive and law-breaking bikkhu, is commendable, in the least, in a country where it is felt that those in places of authority whether political, business or religious, are beyond the arm of the law. We have seen the awkwardness of the law courts in merely serving summons on robe-wearers; this is in addition to the seemingly untouchable status of personnel of the three security forces.   

The general public, though not experts in the law or legal concepts are intuitively aware about what is right and just. That is why in a jury trial, the jury consists of ordinary people with some kind of basic background, but without any specific legal credentials. That is one instance where conscience and commonsense is deemed better than in-depth knowledge of the law in seeing what is just and fair .   

Lord Denning, perhaps the most brilliant legal luminary of our times, said the need was not for judges with extraordinary knowledge of the law, but with an understanding of what justice and fairness are. What wisdom from that great mind. In fact it is judges of that particular quality that modern society needs in earnest; when it comes to countries like ours, the need is felt that much more acutely.   

 

Judiciary as the weakling?

Some say that the Judiciary is the weakest branch of the state viz a viz the executive and the legislative. I disagree. The judiciary might lack the military might of the executive or the popular clout of the legislature, yet it has the respect and deference of the general public; the power to persuade, inspire, mobilize the masses not in the manner politicians do, but in a silent, gradual and steady way. We call it soft power.   

Soft power is gaining prominence even in affairs of State and international diplomacy. In the same vein, the soft power of the judiciary is second to none. Judgements by courts which the public embrace as reasonable, just and brave, go a long way in building up the image of the judiciary to a large extent.   

There is a common belief that the law courts are a place where any damn fib could be adorned as truth while even a biblical truth is undermined if one has the means to have the best counsel around. Instances of such notorious ingenuity of lawyers using technical grounds to win cases, most of the time letting loose murderers on hair splitting arguments are now folklore in showing how far from each other law and justice in fact are.   

 

Disillusioned with Law

The growing disillusionment with state institutions such as the Police, Law Courts, Public Offices does not augur well for democracy or a civilized society in general. When the common man realizes that what he reverently submits to as the ‘supreme Law’ does not apply to the high and the mighty, he will take the law into his own hands. Thus, is born the ‘lynch mob’.

 

The hue and cry generated in the backdrop of the errant bhikku being clad in a prison jumper is not only frivolous but tainted with extreme bigotry

 

The Executive and the Legislative arms of the State have lost credibility and enjoy very little soft power in the eyes of the public. But that is exactly where the judiciary holds the upper hand; in being able to retain the confidence of the public and in turn, to convince them that abiding by law, is not merely to avoid penal repercussions, but more so to benefit them making life more safe, benign and wholesome as human beings. When a very senior judge saluted with reverence the wife of the Police Security Officer who died in the line of duty, we saw the awe inspired in the society for that act of humility and benevolence of a powerful state functionary.   

The hue and cry generated in the backdrop of the errant bhikku being clad in a prison jumper is not only frivolous but tainted with extreme bigotry. To start with he is not the first monk (or member of the clergy ) in a prison jumper because fifteen of them, it is said, had faced the same predicament and we had not heard any grumbling at all. Secondly, where were the monks up the hierarchy, pleading clemency for this delinquent in saffron robe when he ran amok like a rabid dog, biting all and sundry. Thalduwe Somarama and Buddharakkhitha as well as Matthew Pieris, did time in the Government Boarding wearing what other prisoners wore. That is justice. Even if one concedes that Law and Justice do not overlap each other perfectly, we need the law to be applied generally, universally and without distinction.   

 

The growing disillusionment with state institutions such as the Police, Law Courts, Public Offices does not augur well for democracy or a civilized society in general

 

The second case was the one where the Supreme Court made an order, on a Special Leave to Appeal made by Ceylon Tobacco Company in a case filed by a person who died of lung cancer after being a long time smoker. The Order was of a preliminary nature and not final, yet the Supreme Court recognized the fact that legal procedures such as right to appeal can be used by the economically stronger parties to frustrate the very just and legitimate claims of those who are not wealthy. An eye opener for many judicial officers who seem to think that the law in the abstract is all that matters.   

 

A chequered history 

The Judiciary of this country has a chequered history; yet though bent, it is not broken entirely. It is often pressured but has not perished. It has in its ranks those individuals, who are ready and brave enough to uphold the law and more important, with justice and fairness, which is the strongest thread that can hold together a fast disintegrating societal structure. They speak out with their decisions that justice should be the hallmark of sound law and secondly that the law should apply equally to all irrespective of their civil status, economic prowess or any other extraneous criteria.   

At the same time we need those judicial decisions penalizing culprits to be enforced and not confined to paper decrees. Right of appeal as well as the presidential pardon under the Constitution should not be allowed to frustrate the long arm of the law reaching the high and mighty and the ordinary alike.   

After all, judicial power, too, is an extension of the sovereign power of the people according to Article 3 of the Constitution. If the people decide otherwise, then the Bench too will come crashing down.   

 
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