By Ravi Perera –

“For forms of government let fools contest, whatever is best administered, is best” -Alexander Pope

Those living in an abyss will not easily comprehend the true reality of their existence. When the abyss is societal, when that society’s ways and habits are accepted as a norm, when its narration is endlessly self-affirming, comprehension of the human condition therein becomes extremely challenging.   

The societal abyss entraps its inmates in an endless maze. Knowing no better, they praise it, finding virtues in its permanent atrophy, heavy air, corrosive texture and the deadening sounds. Time does its work, soon the abyss becomes them, they become the abyss.

The NPP promised a brave new world, a new era, a leap from the realm of a failed system to a realm of success.

An extremely challenging undertaking, perhaps an overreach, biting more than what a people can chew. There is nothing in Sri Lanka’s preceding eighty years to show that we are capable of achieving the sanguine ambitions of the NPP. For a poor country to reach a rich status needs more than speech making or passive contemplation of the universe. Words are all we have, that is what we are good at. At the ground level, a reality of a vulnerable economy producing only the barest products, limited resources, inefficient systems, a productivity level below world averages, deep rooted corruption and an indifferent workforce ignorant of real value adding. To understand what the world really thinks of us, one has to only present his Sri Lankan passport at an embassy; the disregard is sobering.

For the abyss mindset, a leap is not grandiose enough if it carries no new constitution. (the disgraced President Gotabaya Rajapaksa was also working on a new constitution when events overtook his ambitions) This ambition faces a piquant challenge, nearly every new government is elected with a mandate from the people to change the constitution, but the existing constitution says you need a referendum ( endorsement from the people)in addition to two thirds in parliament to change it. If a new constitution is eventually adopted, it will be the fourth since independence, the last three being autochthonous. The existing constitution is commonly condemned, only its inbuilt rigidity prevents its jettisoning. Clearly, making lasting constitutions is not one of our skills.

Considering the enormity of the government’s undertaking, it would surprise a dispassionate observer that the first amendment to the constitution contemplated by the NPP government is to increase the retirement age of judges of the superior courts by two years (65 to be made 67), an inessential, academic issue.

Apart from the suggestion of an “extempore” approach, there are several aspects to this move which are curious.

It is commonly said that there are more than one million cases pending in our courts and that we need the experienced judges who have reached the age of 65, still in sound mind and body, for two more years in service to attend these delayed cases. (the backlog is in the lower courts, the extension of the term is for the judges in the superior courts) Arguably, although a judge may not be individually responsible for the enormous backlog, they work within a system which created this massive stockpile of cases in the first place. I cannot imagine the same reasoning, “you broke it, you fix it”, being accepted in any other service sector. They would look for another solution.

In our social discourse, there is an exaggerated respect for age (experience), no doubt readily encouraged by the venerable seniors. That age equals wisdom is at best a doubtful proposition. It is difficult to conceive of a judge who has sat on the Bench say for fifteen years, and is now 55 years of age, acquiring much more wisdom in the next 10 years. What the rest of the world may call a slow learner, to us is a man acquiring experience! If the logic of age equating wisdom is applied in the political field, for the failed politicians hoary with age, happy times of globetrotting are here again!

Administering justice is not like a sausage factory. In order to reduce the backlog a judge cannot indiscriminately dismiss all the cases before him. Sometimes an injustice may not even appear in the initial pleadings but might emerge in the course of hearing by an intelligent judge. A witness does not give evidence with robot like perfection. Proceedings in a court of law are designed for thoroughness, rather than speed.

The usual culprits for the law’s delays are well known and have been talked of for nearly five decades now. Lack of infrastructure and personnel shortages in the relevant departments are often referred to.

Although not stated commonly, there are not so visible factors contributing to the delays too. Laws that are ill-thought out and badly drafted contribute towards endless litigation. This applies to both substantive as well as procedural laws. Many of the processes prescribed by our laws create loose ends, leading to confusion and eventual litigation. It appears that the laws introduced by our legislators have only confounded a confused reality; our legislators do not have a reputation for good law making (all the nutritious food served at the parliament canteen to no avail!)

There is the issue of incompetence, many cases end up in appeals, and successfully too. If the law is clear, and the matter is heard competently, much time can be saved. There is no reason to believe that our courts are better or worse than other segments of the society.

Sri Lankans could be considered litigious by nature. Just observing their road manners, drivers jostling for every advantage, gives an idea of what goes on in courts; bad laws and primal temperaments.

We cannot even understand a queue. Dignitaries eat first!

When talking about the legal system or the judiciary, it strikes us that everything we have, the very essence; the form, the substance, the ideas of law, belong to other cultures. Many human rights and liberties we take for granted today are the results of work done in foreign courts by foreign judges. These are very unlike cultures and peoples; they are societies deeply individualistic, committed to a high work ethic and a people vigorous in nature, disciplined and carrying different social standards and norms.

What we have is a mimicry acted out in an unlike setting, does it carry authenticity?

The adopted legal system has been planted in a culture fashioned by centuries of feudal servitude. In the originating countries, courts are simply ‘courts’, and judges are simply judges, Judge ‘Smith’ and so on. But in Sri Lanka, one dares not such egalitarian straightforwardness. Even a casual reference to a court or a judge will carry the obligatory title “Garu” (honourable}. There is a strong suggestion of fearfulness or nervousness, like when dealing with an unpredictable and fussy village big shot, unwise to fall foul of. One is reminded of Robert Knox’s description of the lives of the humble folk of the Kandyan Kingdom in the 17^th Century; their abject fear of the feudal authority, placating them by word at every opportunity.

Likewise, the “Garu” is a prefix with the politicians too. However, here there is no fear, only a customary beseeching of a patron. The true nature of this interaction is seen now in perspective, as these “honourable” politicians are unmasked in steady succession for their corruption.

Western legal thinkers have described the judiciary as the least dangerous arm of government. A justifiable proposition; the legal practitioners are usually men of the world, urbane and learned. By the very nature of their occupation, they are committed to a search for legal justice. Even to a man convicted of a serious crime, the courts extend every legal courtesy; a fair hearing, and if found guilty, a reasonable, uniform and proportionate punishment. It can be said that the process of the law is a civilizing process.

Undoubtedly, there have been aberrations in judicial history, however, the law’s impetus is towards greater liberality, transparency and fairness.

One must not make the mistake of thinking that the mere existence of a judiciary guarantees our freedoms and rights. The judiciary is also a career for a lawyer. Judiciaries exist even in ‘rogue’ States, we have heard of judiciaries in countries like Pol-Pot’s Cambodia and Idi Amin’s Uganda. There are legal proceedings in North Korea and Afghanistan. Whether these proceedings accord with universally accepted legal norms is extremely doubtful.

Even today’s developed societies are not without their dark judicial histories. We have the notorious example of Judge Roland Freisler, Adolf Hitler’s President of the Peoples Court. Lawyer Freisler was initially a member of Germany’s Communist Party and later became an ardent Nazi. In July of 1944 a group of idealistic German army officers appalled by the disaster awaiting their country as a result of Hitler’s war, made an attempt on Hitler’s life at his headquarters in East Prussia. The assassination attempt failed, and several conspirators were brought before judge Freisler in a mock trial. Behind the judge’s seat in the courthouse was a large bronze bust of Adolf Hitler. Freisler harangued and abused the helpless accused and reiterated that he would judge them in the same manner Hitler himself would have (for attempting to assassinate him)!

Our lawyers, from whose amidst our judges have emerged, think that the offer of an extension of two years of additional service will be too tempting an inducement, seriously undermining a judge’s capacity for independence (know thyself is an old Greek maxim). Some argue that even if judges, despite the lure, walk the straight and narrow path, the test of independence is objective and must be seen to be so.

But then in the abyss, appearances are never what they seem, everything is Helter-skelter.