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| Sunday, 28 November 2004 |
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A judge's killing and limitations of the law Sunday Essay By Ajith Samaranayake
In a society where many certainties have crumbled before this we have now been made to watch the spectacle of a judge being gunned down in broad daylight by common criminals who had lain in wait for him outside his official residence like predatory beasts waiting for their prey while the forces of law and order appeared to have fled (except for the lone policeman who laid down his life). Powerful politicians In a country where powerful politicians and service chiefs have been killed including an Executive President, Mr. Ambepitiya's killing might not be unusual but it assumes chilling significance on two counts. One is that this is the first time that a judge who is normally considered to be above the hurly burly of politics and the scramble of the market place has been murdered. The second is that this killing comes at a time when it was hoped that large-scale and major killings of public figures had ended and a kind of uneasy peace had descended on the land. The Roman Dutch law as dispensed by the likes of the late Mr. Ambepitiya is, of course, part of Sri Lanka's colonial legacy and has continued largely without any modification into our own Republican times. The law is part of the superstructure of any society and inevitably reflects in some measure the balance and alignment of class forces obtaining in such a society. But from another point of view the dispensation of justice is the disinterested administering of the laws obtaining in any such society for without this administration of justice the social order is bound to crumble and collapse. This is the kind of danger which the killing of a judge can portend for if judges who administer the law are not safe from criminals who else can claim such security and safety in any society? Reality of daily life Time was when Supreme Court and other judges were referred to as 'rajjuruwo' or 'nadukara hamuduruwo' by the supplicants who came to worship at the temple of justice or pay court to the ermine or purple-clad figures on the bench far above the clamour and the din of the market place and the dust and grime of partisan national politics. The judge then was a remote and distant deity, a figure on an Olympian pedestal. Let alone consort with the hoi polloi he was even discouraged from mixing with his social peers lest the purity of his sense of judgement be polluted by contact with the quotidian reality of daily life. A judge was considered some kind of divinity inscribing his flaming words on a tablet and handing it down from a great celestial height. Naturally this served to deepen the judiciary's alienation from society at large and to raise and place it on a pedestal above the common herd. The best picture of this is still what is available in Leonard Woolf's novel 'The Village in the Jungle', where Silindu, the unlettered southern peasant, half human and half animal, is sentenced by an English judge after a trial which Silindu can not comprehend conducted as it is in English. English was, of course, the lingua franca of the courts as it was of the entire administration until it was dislodged in 1956. This served to separate the law even more from the average litigant. The whole strange and intimidating machinery of the law peopled by judges, lawyers, court mudliyars and policemen combined with the alien tongue to build a wall between the law and the litigant. Mercifully with the spread of free education and instruction imparted in school, university and Law College in Sinhala more and more cases are now being heard in the language spoken by the large bulk of the people. Judge Ambepitiya himself at 57 was a symbol of this new bi-lingual generation of the law capable of adjusting to the changing times which have thrown up more and more lawyers operating outside the magic circle of English. This is why it was somewhat incongrous that his funeral obsequies should have been conducted in English beamed as it was over national television as if a cabal of lawyers was intent on seeing that the mystique of the Queen's language should be preserved even in the public cemetery, the common graveyard. By and large this mystique of the law operating over the heads of the hoi polloi has been preserved from colonial times with the exception of the reforms initiated by Felix Dias Bandaranaike as Minister of Justice in 1970 for which he came in for considerable flak from all quarters. But what can be safely said today is that while successive governments have been keen to politicise the judiciary in the sense that they have wanted to see the judiciary hand down verdicts favourable to them they have been less keen to modify the cumbersome machinery of the law so that the litigants at large would have their cases settled faster without being pushed from pillar to post and getting caught up in the delicate game of dates played out by the lawyers with the intent of milching their clients to the utmost. Judiciary petrified What is more the judiciary itself has remained petrified in a rapidly changing world. Judges no longer belong to a brahmin caste out away from the hoi polloi. Materially they are no better off than the average middle-class man. Their salaries and emoluments are hardly worth writing home about and in the matter of official housing and other facilities there is much to be desired. Socially too they have been increasingly drawn from the middle classes rather than the upper classes as before so that in a world dominated by a vulgar new-rich class spawned by the unbridled open market economy the judiciary as also some other sections of the professional classes has stood out as the poor relations at the banquet. The law as codified and established during a different social era also represents something of an anachronism in our times. The forces operating to undermine law and order in our day command resources, personnel and weaponry on a scale which would have been undreamt of a few decades ago. The killings and gang robberies of the 1940-70 period pale into insignificance in the face of the calculated crimes of today. Much play has been made for example in the wake of the Ambepitiya murder of the possible involvement of sections trafficking in narcotics with the killing. The large-scale trafficking in drugs is a relatively recent phenomenon and constitutes the hard core and the most lucrative line of business in the underworld today. The underworld itself has grown rapidly with the injection of new professional sections into it quite in contrast to the IRCs with colourful aliases who used to dominate it during a different time. The nexus between politics and organised crime has also served to severely undermine the hold of the law on the social order. The underworld today constitutes the underbelly of the rotten and decadent political system with every political party needing to draw on criminal elements in the brutish quest for power in a society riddled with violence. violence and big money have become the ruling forces of society. In such a situation the law is often helpless and one has necessarily to go beyond the limitations of the law to find a remedy. Sharp contradiction In fact Mr. Ambepitiya's killing brings out a sharp contradiction at the heart of the justice system. The late Chief High Court Judge was known as a judicial officer who did not hesitate to hand down the stiffest penalties possible under the law and hence his being hailed as the most courageous and fearless judge of them all. But his murder is a reminder and a demonstration that the enormity and the severity of the law is no match for the gun which is steadily becoming the final arbiter in our blood-spattered society. The resurrection of the death penalty and the call by the Inspectors' Association to revive the Prevention of Terrorism Act are only desperate reflex actions. Even the Chief Justice has advocated that those who are charged with murder should not at any point be enlarged on bail as it happens today. But all these are purely legalistic reflexes when it is quite apparent that the present malaise transcends the purely legalistic domain and is no longer merely a problem of law and order. The unholy conspiracy between the forces of corrupt politics, big money and organised crime is eating into the very entrails of society. Forms of punishment however stringent which spring from the soil of the law by themselves will not be able to check these barbarians at the gates of the city. Radical acts of social engineering are called for. A process of social cleansing which involves getting to the bottom of the forces seeking to undermine society and their systematic unmasking should be the urgent priority. This is necessarily a political task. |
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| Produced by Lake House |
The calculated murder of Colombo's Chief High Court Judge Sarath
Ambepitiya a day after his 57th birthday signifies the steady
brutalization which Sri Lankan society is being subjected to while holding
out an eerie reminder that not even the high priests of the law are immune
today from the machinations of criminals and gangsters.
