31 August 2018

Notes for a Manifesto: Justice, Law and Order


This is the second installment of a series of articles on subjects that potential presidential candidates and political parties ought to reflect on when putting together election manifestos.   


There are some lovely words that have been bandied about in political circles over the past couple of decades. Peace is one.  There was also conflict-resolution. Reconciliation has displaced both these of late. Those who are focused on constitutional reform, in particular those who are hell bent on devolution, like to use the word ‘united’ (as in, ‘maximum devolution in a united Sri Lanka’).  Now unity (like peace and reconciliation) cannot be legislated. The ‘United Nations’ for example is made of separate states (let’s forget for a moment that unity in that formidable body is largely absent). The point here is that words are easy; getting the meaning concretized and operational on the ground is tough.  This is how ‘justice’ should be understood too.

Justice. Another lovely word. Obtaining it requires robust systems where truth has a better than average chance; in other words, an institutional arrangement as well as a set of procedures including recruitment, training and promotion. 

Typically, however, those running for political office and parties/coalitions aspiring to capture political power, only talk about ensuring justice and establishing the rule of law. That’s a promise. An easy one.  There’s hardly any analysis of what’s wrong with the system; the focus is on the unpalatable outcome of these flaws. It makes for sloganeering, that’s about it. 

It would be better if candidates delved into the nitty gritty of it all. Then they would have to talk about the legal system, separation of powers, the judicial system, the legal profession and of course the Police. This would require a doctoral dissertation of course, but this side of a PhD, it is possible to point out glaring flaws.  

Today there is absolutely no discussion on the merits and demerits of adversarial and inquisitorial systems of justice, the former being what we have whereas the latter was what we had. Both target justice but whereas one does not care of social fallout, the other does. The argument for retaining the current system is essentially a product of conservatism and sloth, not to mention the fact that it is remunerative to the key stakeholders in the system. So we have come to this: this is what we have and this is what we will always have; we could only, at best, tweak things a bit.  Are we that poor, though? That’s a question that needs to be addressed. 

Separation of legislative, judicial and executive powers is of course talked about.  However, when career paths are dependent on executive fancy then independence flies out of the window. Here’s an exercise for those who are really interested in an independent judiciary:

Check the career paths of the last 10 Chief Justices. How many of them held the position of Attorney General? Who appointed them? What was their track record in the AG’s Department in cases where high ranking politicians were involved? What kind of determinations did they give when opinion on constitutional matters was sought? How did they perform when they held the office of Chief Justice? 

The truth is that the AG’s Department is now seen as a half-way house for those aspiring to serve on the Supreme Court and become the Chief Justice. What value then can we attach to the integrity of judges in the higher courts?  

It’s not just about career prospects. It’s about bucks too. I would challenge any judge in any court to say the following: ‘There are no corrupt judges in any court in Sri Lanka!’ Their salaries were considerably upped recently, in some cases the jump exceeding 250% and yet, there are inordinate delays in courts. Land cases take on average over 30 years, for example. Part of the story is court vacations which were declared only to allow British judges to go home to see their families and are essentially a colonial remnant that make absolutely no sense.

In Britain, for example, the two professions operate independent of one another, as it should be.  It cannot be impossible to set up systems where law students well versed in all aspects of the law can, if they so wish and satisfy relevant criteria can either choose to represent clients or hear cases. Such systems could have inbuilt mechanisms that facilitate acquisition of knowledge and relevant experience.  

A quick note on legal education would be appropriate at this point. The Law College, Medical College and Technical College were established long before the formal university system was set up in this country. As time went by, the functions of technical colleges were incorporated into the university system, as was the Medical College. The Law College was spared. It is high time that the Law College was formally absorbed into the overall system of legal education in higher educational facilities.  

Let’s not forget the enforcers, those who are also mandated to ensure law and order: the Police. Over the years, due to the conflict, the Police was tasked to do a lot of things outside the frame of traditional police work. Today, almost a decade after the war on terrorism ended, things haven’t changed. No wonder that crime cannot be effectively combatted!

There are other reasons. Corruption, for one, but let’s leave that aside for now. Incompetence is a serious problem. There are massive flaws in the entire system of recruitment, training and promotions. The Police Commission seems ignorant of all this or incapable of sorting out the mess. In Britain people are recruited as constables and have to work their way up depending on performance that is regularly and systematically assessed. There’s no way that the top post goes to someone who has not done the constable’s beat. 

There’s training on the job and training for the job. Both are important, no doubt. Do we have a solid training regimen and systematic competence assessment? If we did, would we be in this situation? What does the Police Commission have to say?  

What’s also imperative is a cogent system ensuring that incompetence is found out and corrected. In Sri Lanka’s case, there are ways around all this. Political patronage always ruins systems. We have it. Stringent evaluation makes for quality control. We don’t have it. 

It is easy to mutter words and terms such as justice, law and order, independent of the judiciary etc. Will our presidential hopefuls go beyond?  

Let’s here it from the following and others who have presidential ambitions: Gotabhaya Rajapaksa, Rohan Pallewatte, Nagananda Kodituwakku, Maithripala Sirisena, Ranil Wickremesinghe and Patali Champika Ranawaka. 

malindasenevi@gmail.com

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