By Malinda Seneviratne –
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.
Malinda Seneviratne is a freelance writer.
Ajay / August 23, 2018
An unintended piece of self-satire by Malinda. Political contingencies can lead to the bizarre and the absurd. The unfolding situation in Sri Lanka is a good example. Malinda, among other things, is a journalist who takes pride in being staunchly anti-liberal, as amply illustrated by this article. He mocks depraved ideas such as ‘conflict-resolution,’ ‘rehabilitation,’ ‘united,’ and ‘peace.’ He’s a smug majoritarian; quite toffee-nosed about his cultural heritage – of which he likes to write in English. He openly boasts he won’t stand for a pluralist Sri Lanka built on multi-culturalism and power sharing. Yet in this piece, he is willing to give his two cents’ worth on how to reform our judicial system so that justice can be served – presumably for the benefit of members of all communities. Then, he suggests, we should hear from the presidential hopefuls. One of the names mentioned is, of course, Gotabhaya, probably Malinda’s favourite because of his pristine Sinhala-Buddhist behaviour while being an American, laying claim to the great nation’s democratic rights and freedoms. Just picture this: Malinda and Gotabhaya engaging in a profound discussion about such exotic and esoteric matters as justice, the rule of law, equality before the law, independence of the judiciary, etc. All about the niceties of jurisprudence. That would be a meeting of the minds indeed
Leon Anthony / August 23, 2018
Ajay, you have effectively undressed Malinda and clinically exposed him. Like you did with the “thimbirigasyaya” man!
malinda / August 25, 2018
can i still wear your regular clothes.
Leon Anthony / August 25, 2018
dear Malinda, you sure aren’t wearing them now, but of course you may if you wish. They are soft, pastel and linen-ish. But they will not cover what has been uncovered. I’m glad I got you miffed. Stay there. Don’t wander. Your break is near.
shankar / August 26, 2018
Nice try fake news Leon Anthony.Did your wife ask you too remove her bra?Did she also ask you to remove her panties.After that did she forbid you from ever wearing them again?
Leon Anthony / August 27, 2018
Faking, Shaking, Shankar this is your fantasy, your fetish, that only ends with a shake on your sitar. ( with apologies to Ravi).
malinda / August 27, 2018
“Your break is near.”
i already had my break long ago ,thank you.Are you on wikipedia like me?
ps.Don’t you and Ajay get confused with my pseudonym “shankar”.All poets/authors do have one you know.Saves a lot of headaches.
Leon Anthony / August 27, 2018
Hmmmmmmm Malinda you seem upset..angry..troubled.. Lets meet up soon for a chat by a crackling fire and I’ll play Norwegian Wood for you. And you can read your wikipedia to me!
shankar / August 23, 2018
You really don’t know my inner self Ajay.As i told you earlier if you had accepted my offer of the last copy i have of Open Words are for Love Letting you will have a different opinion of me.Better late than never.
Douglas / August 23, 2018
Before reminding and presenting “Notes For A Manifesto : Justice, Law And Order”, one has to examine and question as to whether our Politicians, who ultimately enter Legislature and call themselves “Law Makers” in reality “UNDERSTAND” what these terms “MEAN” and what these “ARE FOR”. In this case of examination of “CAPACITY” and “CAPABILITY” , one cannot exclude those who are directly involved in the “EXECUTION” of any of the functions assigned to those terms. Over a periods of decades, we have experienced the existence of a big “Black Hole” in all the areas of Justice, Law and Order. Why? Those in the Justice system (Judges and Legal Community) have failed to build into their life, the most important factor of “Social Responsibility”. The term “Justice” hasn’t conveyed to them, that it is the “DENOUEMENT” or the final determinant of the Law and Order process. If those social and technical (Professional) responsibilities are built into their (those entrusted with the duties and functions) chosen life patterns, we will never need to cry, argue or even NEED a chapter on Justice; Law and Order in the Political Manifesto.
Jose / August 23, 2018
Malinda, how come you neglected to mention your erstwhile hero MR as a “presidential hopeful”, even if it’s (for the moment) behind the scenes manipulating whoever with the puppet strings?
Oh, and I almost forgot, how come you weren’t critical with MR et al about those “terms such as justice, law and order, independent of the judiciary etc. ” that he never seemed to care too much about??
Much of what you write has merit but do try a little objectivity next time, it may help with your credibility.
Thappu / August 23, 2018
Malinda Seneviratne, You have let the opportunity slip thru your fingers. I do not blame you. In our Sri Lanka politics stands so maligned and twisted it is tough to write straight on the topic you have chosen. The subject is crying for urgent attention. Even though you have not done justice to it this time around, you could still do it. Take a deep breath. Pause. Wipe out the slate clean. Start all over again. If any one could do it, it is you. Oh! You write so wonderfully well.
K. Anaga / August 23, 2018
You have rightly said that the lawyers attached to the Attorney General’s department are more keen on their future- being elevated to the bench rather than dispensing justice. Invariably they are given the task of defending the ‘crime’ committed by the government departments and corporations in the courts. It appears they do not care to ascertain the facts prior to defending them and the departments concerned too are not worried as they are defended without any cost to them. Very often AG’s department are called upon to make a preliminary decision as to whether there is a’ case or no case’ . This would mean they act as judge and come to conclusions. Their decision may be made unilaterally, depending on the the ‘influence’ of the alleged accused possess with the AG’s department.If the accused possess sufficient political clout the decision is dragged on indefinitely and thereafter thrown out. Government departments should be made to pay and if the are found guilty. The guilty person/persons should be made to pay out of their pockets. I am aware of a land case of a friend , going on for 46 years approximately. The case commenced in Jaffna and it is now under appeal by the opposing party and the party who filed the case has passed away. I understand large volumes of case records have to translated. This may take another couple of years. Further I came across an article in the Colombo Telegraph a couple of months ago, which states that despite the hearing being completed two years ago no verdict has been given.
nimal fernando / August 23, 2018
Dunno about all these Malinda’s justice gobbledygook
Action and efficiency speaks loudest
Nothing beats Gota’s efficiency ………. judge, jury and execution home-delivered ……… carried around the country in a few white-vans
Hands down Gota is the man …….. I say Gota for president!
Malinda, you can thank me for saying in few words ……… what you tried to say in so many words
Efficiency of words …….. efficiency of painless execution is the key ………buddy
K.Pillai / August 23, 2018
Malinda Seneviratne’s angst comes out in ~ “Notes For A Manifesto: Justice, Law & Order”
Malinda Seneviratne suggests PhD research topics. Is not ANY topic a PhD topic? To the best of my knowledge no one has established as to whether Ravana is fact or fiction. Is this worth researching?
Let us examine how we got into this predicament. Did the language/religion-divide create this? Or was it a coincidence?
Was the SLPP performance at the LG based on the ‘divide’, couched in “Reconciliation is Separation”?
The next lot of PC elections will be based on this.
Malinda wants those who have presidential ambitions to answer questions raised by him. Among them were Gotabhaya Rajapaksa, Rohan Pallewatte, Nagananda Kodituwakku, Maithripala Sirisena, Ranil Wickremesinghe and Patali Champika Ranawaka.
Ask them about the ‘divide’. There is no such ‘divide’ will be a stock answer.
No point going further. We are back in square one!
Ajith / August 24, 2018
It took very long to Malinda to understand that in real politics of Srilanka words our politicians speak are meaning less and worthless and our political and Buddhist political Monks leaders are useless.These leaders are protected well from justice that is lead them to corrupt, carry out murders and destroy the nation.
Burt / August 24, 2018
“It is easy to mutter words and terms such as justice, law and order, independent of the judiciary etc. “
Quite true: Still Ganasara is comfortably seated on a hospital bed and not inside a prison cell where he should be. So the above words means nothing if your a connected politician or a goon connected to a powerful politician.
shankar / August 24, 2018
he is waiting for a presidential pardon.In other words he wants the president to humiliate the judiciary by giving them a slap in the face.The kotte bigshot thero also has written a strongly worded letter to the president tat monks should not face prison.In other words they should be above the law.If president pardons this bugger he will be making the same mistake of SWRD in listening to monks and getting shot.