By Basil Fernando –

Basil Fernando

Deterioration of the Legal Intellect -11- : Small Miracles that Can be Achieved Through Justice

In this series of short essays I have attempted to demonstrate the terrible situation of institutions of justice- police, prosecutors and the judiciary- through some samples. I have also tried to show how intricately linked are the political and societal crisis plaguing the country and the sad state of justice institutions.

In this essay, I will try to go through the same exercise by narrating stories which stand in opposition to the Sri Lankan experiences. I have been living in Hong Kong for nearly 25 years. Owing to the shared colonial past, the basic structure of the justice institutions here are almost the same as they are in Sri Lanka. However, the stories that I have told in this article series would be shocking, in fact almost unbelievable, to the present generation of people living in Hong Kong. For the older generation which has lived here before 1970s, however, the Sri Lankan stories would be a reminder of how things were here as well.

The situation here has changed a lot from the 1970s and judiciary enjoys highest level of confidence from all sections of the society. The judiciary, in fact, is respected as the chief protector of rule of law and stability of the dynamic metropolis. There is broad consensus that rule of law is the foundation of society. Everyone agrees that it protects individual rights and also creates an enabling environment for the security of investments and thus contributes to economic development. The prestige the judges have here would make any person proud to be member of judiciary.

The government has also ensured that necessary financial arrangements required for providing a functional system of justice are made. All modern facilities are provided, down to the detail of tape recording of all court proceedings. The result of these arrangements is obvious- Hong Kong has a fair system of adjudication without delay. Among the more expensive aspects of justice system in Hong Kong is running a truly efficient system of control of corruption, through the prestigious Independent Commission Against Corruption (ICAC). This institution has proven its metal and enjoys the confidence of the people.

The discipline brought about by corruption control has been felt in all state services including the police. It also enjoys the confidence of the people. People are not afraid to complain against the police, whenever there are reasons to do and these complaints are quickly and fairly investigated and corrective action is taken speedily. All such matters are duly conveyed to the people. Over the years, police have fought a credible battle against all kinds of crime, while at the same time respecting the rights of the people involved.

Same can be said of the office of the public prosecutor which functions under the department of justice. Its functions by the principles of jurisprudence and there is no political subservience in its functioning. Attorney General Department is the legal adviser to the government and in this capacity it plays a prominent role in maintaining rule of law.

All this machinery has solidly impressed on the population that law is observed strictly and fairly for everyone irrespective of socioeconomic status.

Lawyers in Hong Kong also abide by this ethos. The Bar Association provides for a strict control of discipline and all complaints against lawyers are credibly and thoroughly investigated and acted upon.

That is the framework within which, politicians also function. No one is privileged with impunity. Impunity, in fact, is no more a part of the system.

The justice system has made special arrangements for protecting minorities, through the Equal Opportunities Commission for instance. One of the remarkable aspects of the Hong Kong life is the way, women have been able to assert their rights and have made their presence felt everywhere. Rule of law is upheld in all matters relating to sexual offences as well.

The result of all this is a vibrant civil society. People are assertive and they make sure that they get the respect they deserve. There are many open and active protests and small and big demonstrations. Recent protests of the umbrella movement demonstrates how strong these protests can be. All these activities are carried out within a rule of law frame work and justice institutions ensure that conflicting claims are settled in a just manner.

My idea here is not to create the impression of a paradise but to argue that the problems that exist in justice institutions in Sri Lanka can be resolved. One must concede that the present state of things is horrible. That is more the reason why we need to focus and strive for solutions.

I came to live in Hong Kong only because, I was not allowed to live in peace and practice my profession with honour back in Sri Lanka. My name was included in a death list just because I attempted to practice my profession with honour and without fear of undue pressures. Even as I was coming to the air port to leave Sri Lanka with a protective ring of few well wishers, we were pursued by a group of four persons security agencies, sent from the house of a cabinet minister living in the area. They failed only because a tire of the vehicle they were following us with got punctured. Quite contrary to that experience, Hong Kong, the city state which came to host me for all these years did not give me a single occasion to complain of any harassment. The difference of two places in my view lies with their respective justice institutions- police, prosecution and the judiciary.

I wrote this essay as a response to a comment made by a reader of my past article (part 10 of the series), who in good humour has said, “the writer must be dreaming”. I want to assure him that my reflections are product of my life experiences. I have had opportunity to see both- the harms justice systems can cause and also,the good they can do to the society.