13 January 2020

From ‘out of order’ to ‘order’ and justice for all

Ranjan Ramanayake is the entertainment industry, Gotabaya Rajapaksa is in the 'Fixing Things' industry. 

‘And justice for all,’ is the title of a film released in 1979 about a lawyer, Arthur Kirkland (played by Al Pacino), who is forced to defend a guilty judge even as he defended other innocent clients. It’s an ironic title considering a script which brings to question received truths about the US justice system. Indeed, such truths such as equality before he law, unwavering pursuit of the truth, judicial integrity etc., are ‘received’ elsewhere as well. Sri Lanka, for example. 

In what could be called a flipping of the script on multiple counts, Kirkland, in the course of addressing the jury comes up with a classic line. ‘The prosecution is not going to get that man today,’ he exclaims, pauses, says ‘no’ softly and then firmly states ‘because I’m gonna get him!’

All this, after making the basic point that it is the purpose of justice is to prove that the guilt people are proven guilty and the innocent are free. It is, as we all know, it is the defense counsel’s duty to protect the rights of the individual and the prosecution’s duty to uphold the law of the state. The problem, Kirkland point out, ‘is that both sides want to win, regardless of the truth, regardless of justice, regardless of who is guilty or innocent.’

‘My client,’ he scream, ‘the Honorable Henry T. Fleming should go right to ******* jail! The son of a bitch is guilty!’ He insists, ’If he’s allowed to go free, then something really wrong is goin’ on here!’ Judge Rayford interrupts, ‘Mr Kirkland you are out of order!’ And Kirkland retorts, ‘You’re out of order! The whole trial is out of order! That man, that sick, crazy, depraved man, raped and beat that woman there, and he’d like to do it again! He told me so! It’s a show! It’s a show! It’s “Let’s Make a Deal”!

Deal. Who deals. What gets dealt. Who gets the ace, who gets the deuce? We are talking about justice, ladies and gentlemen. Justice for all and not some, and certainly not ‘some’ who have bucks and/or power. We are talking of the pursuit of truth. We are talking of due process. Fair trials. Equality before the law. Ethics and integrity. The abandonment of niceties in favor of justice. For all. 

And therefore we have to talk about systems of recruitment, training, promotion, examination of evidence, cogency of argument and delivery of verdict without inordinate which gives truth a better than average chance.  

The tapes of recorded conversations between UNP parliamentarian Ranjan Ramanayake and several individuals including a judge clearly indicate politicians have got their dirty paws all over the judicial system. Rules are bent, circumvented, encircled, strangled and made irrelevant. This was not unknown. The tapes merely confirmed what was suspected. 

There is obviously a lot of political fallout. Every single person who unwittingly incriminated him/herself will come under a cloud and perhaps subjected to investigation. The silence of political pundits (who alluded to due process when Ramanayake was arrested) on Ramanayake’s despicable behavior of recording phone conversations without consent severely compromises the holier-than-thou positions they take off and on. Their selectivity will not go unnoticed. 

All these are trivial. Sure, some people were made to feel uncomfortable, several politicians and at least one judge have tainted themselves. There could be others who are even at this moment fretting and regretting their past actions. There will be a price to pay, one way or another. 

It will pass. What should not be passed is concrete action to fix the flaws. What is it about the system that allows politicians to pressurize judges? What makes judges squirm? Why are there so many easy ways to tweak the system and extract benefit at the expense of truth and justice? 

The best thing to come out of all this is the urgent need to reform the judicial system. This includes among other things mechanisms to ensure that politician and judge are kept separate. Well, not just politician and judge, but thug and judge, corporate criminal and judge as well. In other words, what is needed is to script back integrity and ethics into the justice system.   

There are questions that need to be addressed. Why is the Attorney General’s Department like a half-way house for those who aspire to serve on the Supreme Court? Why isn’t the system adjusted so that those who opt to represent clients cannot aspire to hear representations and vice versa, as is the case in Britain for example? Why is there no discussion on the merits and demerits of adversarial and inquisitorial systems of justice? What is the reasons for inordinate delays in court, especially when it comes to land cases? Why have we retained long court vacations, originally instituted so British judges could go home for Christmas and/or Easter? 

We could talk about the career paths of those who made it to the Supreme Court. We could examine their performance in cases concerning high-ranking politicians or when they opined about constitutional matters. It is not impossible to obtain pattern through such exercises. It will not imply guilt of doing wrong, certainly, but it would alert us to the fault lines of the entire system and thereby yield pointers as to what should be done to correct them, especially when it comes to separation of powers.   

The arguments for letting things be are the spawn of ill-willed conservatism, personal interest and sloth. Systems should not be made or protected just to ensure that the interests of certain powerful segments of society are upheld. That, however, is where we stand and it’s not a happy place to be, standing or otherwise. 

The next ‘crisis’ will soon enough displace Ranjagate as it has been dubbed. The number of tapes, the likelihood that the conversations with many others are likely to prompt heated discussion and the political capital that could be made will certainly keep the issue alive. The danger is that the sordid details could get in the way of the more important examination of systemic flaws, separation of powers and a concerted effort by government, opposition, judiciary and the public to set things right. 

Punishment of an errant judge, public outcry over a shady politician with possibly adverse impact on his or her political career etc., are likely. It is not enough, though. President Gotabaya Rajapaksa promised a ‘working nation’. Order was a term he used often in his election campaign. Out-of-order is the term that is now appropriate for many things and persons — the constitution, parliamentarians, institutional apparatus, the procedural corpus etc., and this includes the judicial system, the law enforcement agencies, the entire process of recruitment, training and promotion. 

Forget Ranjan Ramanayake. He is in the entertainment industry. He revels in the publicity. He plays to the gallery. He has no scruples. He is corrupt. He had his moment. It will pass. He will too. 

There’s work to be done to fix things. The easy thing is to treat it all as entertainment. The harder matter is to go beyond the jokes. Go beyond the show. Recognize that deals are made and commit ourselves to putting in place systems that prevent such things from happening. In the end, if we focus on ‘winning’ (whatever it is we want to win), we lose. If, instead, it is understood that there’s something more compelling and of greater value, that the pursuit of truth and the integrity of processes that make for the victory of justice, that the guilty are proven guilty and the innocent are free, then we could have ‘justice for all.’ 

If not, we could, like Arthur Kirkland, retort, ‘I am out of order? No, you are out of order! All trials are out of order! They court is out of order! The judges are out of order! The country is out of order!’

This article was first published in the SUNDAY OBSERVER [January 12, 2020]



Mahesha Thrimanne said...

True, the systems are so corrupt and interwoven its very hard to change and find a point to start to remove the tangled mess is not to be seen. Country will have a long road to run.