The social image of the judicial system
"...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
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
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
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".