The social image of the judicial system

by Ravi Perera

"...Here are no laws, but the will of the King, and whatsoever proceeds out of his mouth is an immutable Law. Nevertherless they have certain ancient usages and customs that do prevail and are observed as Laws; and pleading them in their courts and before their governors will go a great way."

Three hundred and fifty years ago when Robert Knox made the above observations we had no Marga Institute to make a sample study to discern the public perception of the existing judicial system.

For that matter, it is unlikely that any body cared what the stakeholders thought of the laws and systems that governed them. The vast majority, maybe the King included, were illiterate.

As to the usages and customs, little was put down in writing and therefore depended very much on vague and opportunistic interpretations by those who yielded power and were answerable only to the King. But perhaps the mind-set of the average citizen of the era was such that invoking the existing legal system for him was as thrilling an experience as a devil dance to appease evil influences.

We have come a long way from the times when Knox was walking the dusty tracks of a hilly kingdom in what turned out to be its sunset years.

There is now a trained legal profession functioning with written laws, which are mainly made by an elected legislature. We have professional Judges whose tenure of office is quite secure.

They have to judge according to the law without fear or favour. In criminal cases, the accused is presumed innocent while the accuser and the judge are separate and distinct.

We have jury trials in serious criminal cases. Any party aggrieved by an order of a Court has recourse to an appellate procedure, which is very accommodating. On paper, we indeed have a very reasonable judicial system.

But for some time now many persons and institutions have been expressing their concern about the perceived deterioration of the judicial system in the country. Under financed and over burdened with work, our otherwise quite acceptable system is obviously in need of immediate corrective action if it were to maintain its usefulness to society.

The Marga institute has once again fulfilled a very necessary requirement in the process of rejuvenating the judicial system by conducting a survey of the public image of it. Its report on the "the social image of the judicial system of Sri Lanka" should be read by every stakeholder in our judicial process.

The findings of the survey are often disturbing and most times unflattering to our judicial system. Even leaving a margin for the obvious fact that any order of a Court of law is bound to leave one party in a dispute unhappy, the reader of the report is yet made to wonder why a system apparently sound on paper has so few friends.

Of the persons surveyed 32.64% thought that the performance of the judicial system was poor while 41% marked it average.

As to the degree of trust in judges, 60% had only a moderate degree of trust in them while 11% had a low level of trust in the judges. It was also felt by those surveyed that the Courts do not resist pressure from outside forces uniformally. Even the compatibility of our Judges with the modern world was challenged.

Of those questioned only 3.5% thought our judges' very modern while about 40% thought they were very backward. For a system run by professionals this public perception of its workings is not something to be proud of.

It is also clear from this report that some of the services such as police, prisons and court staff, which are ancillary to judicial work, have very little public trust. Unless these services are modernized and made less corrupt it is impossible for the judiciary to deliver what is expected of it.

A judicial system does not lend itself to easy evaluation. By the very nature of its work a modern judicial system is called upon to do opposite and contradictory things at the same time. The litigants expect it to be both thorough and expeditious.

We call upon the courts to be firm with lawbreakers while also being merciful. The judicial systems are expected to respect conventions but also to move forward with the times. And unlike professions like engineers, architects and accountants a judicial system is always grappling with human situations with all the ensuing frailties and vagueness seeping into the system.

To illustrate a sadly not uncommon situation in a court it is reported that a dialogue between a judge and an accused person went thus; Judge "How can you say that you did not steal the wheelbarrow when three witnesses say they saw you take it away?" The accused responded "Your honor that means nothing. I can produce ten who did not see me taking it away!"

But nevertheless, we cannot ignore the obvious decline of the public image of the judiciary in this country. The general dissatisfaction with this predominantly professional arm of the State is too widespread to be lightly dismissed. Maybe a paradox exists here too. While we want our judiciary to be in tune with the rest of society, in morals, intelligence, standards, sophistication and capability we expect it to be our superior.

There is an apt quote in the Marga Report, which is from a World Bank legal review " ... a high quality judiciary is indispensable to a well-functioning social order".