By Tirantha Walaliyadda –
We are not final because we are infallible; we are infallible because we are final,” said a Chief Justice of the United States referring to the Supreme Court. This statement was referred to by Chief Justice Asoka de Silva in his ceremonial address to the Bar upon his appointment as Chief Justice. Now we find judges’ houses being stoned, courts being attacked by the public and even excreta being thrown at judges within the court as well as police stations being besieged by the public in protest of action or inaction by the said institutions. Why is this happening? Is it fault from within or without or both?
The business of law may be placed in two broad categories: law enforcement and the administration of justice. Law enforcement is the business of the police and the Attorney General and other departments involved in crime investigations. Administration of justice is a matter for the judiciary. Facilitation of the administration of justice and law enforcement is the responsibility of the Bar. Failure or apparent failure in any of these areas will inevitably lead to discontent and frustration within the public with the end result of violent reaction by the public. Maybe it is time that the powers that be looked into these matters with seriousness of thought and perspective without pursuing an indifferent and self serving course which will surely end in a bloody and destructive confrontation which, at the end of the day, will serve no purpose to anyone.
The judiciary, law enforcement, and the Bar comprise the backbone of the democratic system. But when the Bar boycotts the courts for whatever reason, and if the judiciary accommodates such trade union activity by the Bar with a big hurrah, where does it leave the litigants who have come desperately to court in search of maintenance, divorce, bail, custody of children, and other urgent applications? And, when the Bar deserts the litigants in a frenzy of indignation for whatever reason what becomes the litigants and their woes and their Constitutional rights for which they retain lawyers? Where legal remedies are available in a particular situation the Bar should, in my view, pursue those remedies instead of resorting to rash and rowdy conduct such as boycotting the courts and taking to the streets thereby causing havoc to the legal system in a democratic framework, which system within that framework must remain stubbornly immovable, unemotional, confident, and stable. What is the message that the Bar is sending to the public?
In terms of law enforcement and the administration of justice, corruption comes in two forms: intellectual and material. Intellectual corruption occurs when the law is twisted by the administrators of justice and law enforcement in great expectations. Material corruption in basic terms occurs where the law is twisted for monetary gain in whatever form. Portia’s judgment against Shylock in The Merchant of Venice was intellectual corruption. So also was the judgment against Socrates as recorded in Plato’s Apology where Socrates was sentenced to death by a biased and vengeful people. Intellectual corruption ends where material corruption begins.
A judiciary without a conscience is a judiciary no more. It becomes a piece of machinery and in terms of the State, it becomes an instrument of State power to be manipulated at will and justice falls by the wayside causing irreparable damage to the social structure in which it functions invoking the wrath of the people and pushing the nation into a state of lawlessness and anarchy.
The law should not be abused by its keepers or by its administrators or by its enforcers. The law is for the protection of the sovereign rights of the people. Passing dozens of laws is not the answer to the problem. It is the effective and impartial enforcement and administration of them that should be safeguarded. It is also the duty of the Bar to secure the rights of the people in terms of the Constitution which does not endorse the abandonment of the people in a so-called righteous indignation of the alleged acts of a few.
Contempt of court falls into two categories; those committed in the presence of the court and those committed outside. Where contempt is committed in the presence of an original court, the culprits may be dealt with summarily by the same court. Where contempt is committed outside an original court the action for contempt has to be filed in the Court of Appeal. Where contempt is committed in the presence of the court then the court will direct the law enforcement authorities to arrest and produce the alleged perpetrators and deal with them according to law in terms of summary procedure which is a show cause action. Where contempt is committed outside the court, action will be filed in the Court of Appeal and the Court of Appeal, if it considers appropriate, will take action on the issue. In a case of contempt in the presence of and before an original court the judge is not an aggrieved party: the contempt is not against the judge but against the authority of court and a court has no individuality. It does not belong to the judge but is a part of the judiciary which is called upon by Parliament to exercise the judicial power of the people in terms of the Constitution. As such, in matters of contempt, the Bar should not represent the judge but it may represent the judiciary. If not, the judge comes under obligation to the Bar and thereby loses credibility in future legal matters before him or her.
These are matters which the judiciary and the Bar should consider carefully before stampeding into glorious action with sound and fury. It may well amount to another version of the Charge of the Light Brigade by Alfred Lord Tennyson.