By Sarath de Alwis –
Franz Kafka is a 20th century literary giant who focused much on the judicial process that all societies rely on to uphold the rule of law. His unfinished yet universally acclaimed novel – ‘The Trial’ is an incisive commentary on the arbitrariness of the judicial process.
“Traitors in Black Coats Flocked Together,” was the caption of a news item that appeared on 9th July 2009 in the official Web site of the Ministry of Defense. The news story identified the five lawyers who represented the Sunday Leader newspaper at a hearing in a Mount Lavinia court as having “a history of appearing for and defending” LTTE guerrillas.
It carried pictures of three of those lawyers. In addition, the story did something that was remarkably original in our judicial history.
It announced that the original Defense team of the defendant newspaper had voluntarily resigned from handling the case citing it was against their ethical and moral standing to oppose a national hero like the Secretary of Defense, who made Sri Lanka a free country.
A news report on Thursday announced that the former Defense Secretary Gotabaya Rajapaksa today undertook before Court of Appeal to appear before FCID on June 25 to make a statement.
Franz Kafka haunts Hulftsdorp. Kafka was a literary giant who focused on shame and guilt. He was particularly incisive with the absence of shame and guilt in people wielding power and authority.
With a devastating eloquence, often almost uncanny and frightening, he painted despair, solitude and alienation in biting, abrupt lines. He condemned social orders and systems of administering justice which were moral neutral. He was the archetypical inhabitant of the ‘surveillance state’.
The term ‘Kafkaesque’ is used even in this day, to describe the nightmarish legalese resorted to by judges and lawyers who alone can comprehend the logic of illogical situations that often unfold before courts.
The term “Kafkaesque” also describes court proceedings manipulated by a coercive state machine that compels citizens to navigate through procedures that are designed to frustrate those who dare to challenge authority.
Today we are bewildered by Judges recusing themselves from hearing cases, putting off trials by months, releasing accused persons known to be domiciled abroad on bail to seek medical treatment in countries of their domicile and later issuing Interpol red notices to bring them back.
As Defense Secretary Gotabaya Rajapaksa did not wish to give evidence in person at the District Court Mount Lavinia in his litigation against the Sunday Leader.
He wanted the case transferred to the District Court in Colombo so that he could give evidence from his desk in the Defense Ministry by video link. The Defense Ministry web site described the lawyers appearing for the Sunday Leader as traitors.
The same Gotabaya Rajapaksa, patriot, dual citizen, intellectually inspired presidential candidate and corporatist prophet in the digital age, seems comfortably cocooned in a happy state beyond the reach of the laws applicable to other citizens.
That is the kind of land and people that Franz Kafka wrote about.
Franz Kafka is the genius who made an art form in describing the neuroses we develop by watching the slow grinding of what we call the ‘wheels of justice.’
Unhappy with and confounded by the way justice is dispensed today, this writer thought it best to share the experience of the peasant in Kafka’s novel – The Trial.
A peasant arrives in search of justice. There is a doorkeeper on guard at the entrance to the halls of justice. He begs to be admitted. The doorkeeper says he cannot admit the man now. Come later he says.
The man, on reflection, asks if he will be allowed, then, to enter later. ‘It is possible,’ answers the doorkeeper, ‘but not at this moment.’
Since the door leading into the Law stands open as usual and the doorkeeper steps to one side, the man bends down to peer through the entrance.
When the doorkeeper sees that, he laughs and says: ‘If you are so strongly tempted, try to get in without my permission.
But remember that I am powerful. And I am only the lowest doorkeeper. From hall to hall keepers stand at every door, one more powerful than the other. Even the third of these has an aspect that even I cannot bear to look at.’
These are difficulties which the man from the country has not expected to encounter. He thinks that the law should be accessible to every man. He looks more closely at the doorkeeper in his furred robe, with his huge pointed nose and decides not to incur his wrath. He decides that he had better wait until he gets permission to enter.
The doorkeeper gives him a stool and lets him sit down at the side of the door. There he sits waiting for days and years. He makes many attempts to be allowed in and wearies the doorkeeper with his importunity.
The doorkeeper often engages him in brief conversation, asking him about his home and about other matters, but the questions are put quite impersonally, as great men put questions, and always conclude with the statement that the man cannot be allowed to enter yet. The man, who has equipped himself with many things for his journey, parts with all he has, however valuable, in the hope of bribing the doorkeeper.
The doorkeeper accepts it all, saying, however, as he takes each gift: ‘I take this only to keep you from feeling that you have left something undone.’ During all these long years the man watches the doorkeeper almost incessantly.
He forgets about the other doorkeepers, and this one seems to him the only barrier between himself and the Law. In the first years he curses his evil fate aloud; later, as he grows old, he only mutters to himself. He grows childish, and since in his prolonged watch he has learned to know even the fleas in the doorkeeper’s fur collar, he begs the very fleas to help him and to persuade the doorkeeper to change his mind.
Finally, his eyes grow dim and he does not know whether the world is really darkening around him or whether his eyes are only deceiving him. But in the darkness, he can now perceive a radiance that streams immortally from the door of the Law.
Now his life is ending. Before he dies, all that he has experienced during the whole time of his sojourn condenses in his mind into one question, which he has never yet put to the doorkeeper.
He beckons the doorkeeper since he can no longer raise his stiffening body. The doorkeeper must bend far down to hear him, for the difference in size between them has increased very much to the man’s disadvantage.
‘What do you want to know now?’ asks the doorkeeper, ‘you are insatiable.
‘Everyone strives to attain the Law,’ answers the man, ‘how does it come about, then, that in all these years no one has come seeking admittance but me?’
The doorkeeper perceives that the man is at the end of his strength and that his hearing is failing, so he bellows in his ear: “No one, but you could gain admittance through this door, since this door was intended only for you. I am now going to shut it.”
In this passage Kafka, poignantly and elegantly reenacts the absurd world of the law. It is a chaotic world in which the process overrides, supersedes and defeats the purpose.
Kafka’s world of the law is a bleak world. That is the world in which, we ordinary citizens have their uneasy dreams of justice, finally repudiated.
Courts are the bureaucratic embodiments of the law. While all are equal before the law, Kafka’s peasant becomes less equal before the door keeper.
Let us go back in time. This is how Lal Wickremetunge, Lasantha’s brother and publisher of the Sunday Leader described the Kafkaesque court in Mount Lavinia.
“On the first date of hearing Gotabaya came to Mt Lavinia court accompanied by the Tri Forces Commanders and the then IGP in addition to several government big wigs. I represented the newspaper by myself. The streets leading to the court house, roof tops and the court premises were swarming with armed personnel. No lawyer practicing in Mt Lavinia Court was allowed to bring their vehicles into the premises as was the practice. Security personnel dressed in suits carrying firearms sat around me. My lawyers withdrew from representing us whilst on their feet.”
Lal Wickremetunge laments. Kafka does better. He puts justice on trial. Kafka describes the faceless, godless, indifferent universe of lawyers nitpicking on irrelevant essentials.
Contemporary lessons from the Kafkaesque commentary: We have wasted three years negotiating with the ‘door keeper’ to enter the door. We are yet to learn that the damned door is meant for us. Let us not allow the doorkeeper to shut it on our face.
Franz Kafka in his novel – ‘The Trial’, dives in to the chaos and absurdity of the process of the law with the supersonic precision of a MiG fighter plane.