Sunday Times 2
Law and order: Money and power
View(s):In my previous article headlined ‘Law and order: not for the people’, I outlined the absence of law and order and the prevalence of disorder. Here I mean to outline the power that money and finance wield over law and order.
Financing is big business today. Litigation has entered the realm of high finance, accruing more and more finance with postponements and retaining more and more costly counsel.
‘Law and order’ and ‘money and power’ are two expressions that are not easily reconcilable because of the disparity between value of human virtues and money worth. They weigh on each other disproportionately when it comes to a common objective of law and order for the people. The resistance to law and order from money and power has reached critical levels today.
This article will deal with the current crisis; the immediate forerunner to the current crisis; and the seeds sown by the elite for power appropriation since independence; all of which have been detrimental to law and order of the people.
Money has entered the scene in the Criminal Justice System (CJS), in the halls of justice, temples of morality and corridors of good governance. There is a near complete appropriation of the legal scene through money. To avoid a complicated discussion to explain this scenario, I may put it in simpler terms: The problem can be described as what takes place in a market society where every transaction is paid for. The simple truth is: no file moves except with payment.
In the current order of things, law and order is almost completely engulfed leaving less law and consequently less order. With law and order below the breathing line, issues that are relevant to law and order, such as justice, morality, public order, security, rule of law, ethics and oath of office, are all drowning with law and order. These higher values are rarely spoken of. Money and finance are the driving forces dislodging everything else of value and quality. Not even an illusion of rule of law is left.
Influence of money is minimal in cases pro Deo but keep growing more and more as fees and costs enlarge. Initially the exchange had a lower level of moral turpitude. But then with floating rates growing to higher proportions naturally and artificially, that money for law now floats in midair. Justice, and law and order remain at ground level. Lawyers’ fees are soaring in the upper atmosphere and these even include future costs, towards which postponements are duly calibrated.
Law and order are, therefore, today, lost to money and finance together with any independence they initially had. The influence of money on justice and all the higher virtues for law and order is both insidious and invidious. Postponement of cases is by the teaspoon, the tablespoon, or by the rice spoon as it suits the physician. Law and order now operating in the nature of a commodity to be bought and sold as in market society, the stakes are high and with it the disproportionate power of law professionals. Markets will not, therefore, settle by themselves, not even from reform, from transformation or by revamping the police. This perspective of the problem for prospective constitutional reform must receive top priority.
The people’s right to law and order is just what flows from the Legislative, the Executive and the Judiciary. The laws made by Parliament for law and order are laws enacted for the interests of the professional elite, the lawyers, and not for the people and their rights to laws and order. This has been the general trend of lawmaking in this country since independence. The few exceptions were stoutly resisted or later rescinded by Parliament – for instance, the Administration of Justice Law of 1973. This passive practice has merely been endorsed by the Justice Ministry. Executive check on law and order is either absent or is ineffective.
The misdemeanours are many that the thought arises whether this is merely neglect or is even actively promoted with profit by the Executive. Details of disorder are well known and need no repetition. The Judiciary on its part had its own internal problems termed laws delay. To that is now added external factors that the very basis of their appointment precludes independent judicial decision. And still further, outside influence is even to the effect that the Presidential Commissions constitute interference with the judiciary and possibly in contempt of court. It is one helluva mess.
Though the crisis and the build-up to it noted above came later, the seeds of the discordance between law and order and Money and power have been sown since early independence. The fight for independence by the people was long and hard. The independence the People fought for was of their rights to law and order and much more — rights denied to them by the Imperial order. No elite fought for this independence or went to war for rights of people. These rights so gained by the people along with independence, were the Legislative, Executive and Judicial powers and Rights to serve them. These rights were, however, denied to the people or exercised with indifference to them by the elite in this country — Sri Lanka! So, law and order for the people has now to proceed without independence for the people’s rights to it.
Prof Leslie Sebba of the Hebrew University has made a comparative study of this phenomenon the world over. He calls it “lawyers’ law” as laws determined by law professionals, serving largely the lawyers’ interests.
A retired senior police officer who had read a previous article of mine regarding the travails of litigation, telephoned to tell me how true my contentions were. In his case, his counsel, revelling in postponements, was out of his control and not agreeable to his wish to settle the case on certain terms. He took the matter to hand and informed court that he was dispensing with his lawyer and would retain another counsel.
‘Law and order’ is an enigmatic phrase. It is puzzling as to how the two words ‘law’ and ‘order’ relate to each other. But yet, the term is freely used to mean just one objective to be accomplished by the Criminal Justice System (CJS). However, within the expression ‘law and order’ are two separate components, ‘law’ and ‘order’. They are of different weight. The two must still be deliberated together to meet the purpose of the CJS. In this combined aspect, the law must contribute to order, and order must come from the law. The task for law and order, therefore, is to reconcile the two to a common purpose.
President Gotabaya Rajapaksa has given heed to the cry for the law and order situation so much so, that, in a public meeting recently, he commented on the need to restore law and order to enable the people to go about their business safely.
The prospective law and constitutional reform envisaged for the coming year will necessarily have to take these matters into consideration.
(The writer is a Retired Senior Superintendent of Police.
He can be contacted at
seneviratnetz@gmail.com.
TP 077 44 751 44)