The Law Needs Review: Uncharted Territory

By Tassie Seneviratne –APRIL 7, 2021

Tassie Seneviratne

It is THE LAW that is at issue in this article. THE LAW by itself, made for others than for the people and for the administration of the law, are at the centre of the issue for law and order.

There has been many a disparate discussion of the problem of law and order over the years, in this country. These debates taken together reflect a serious incongruence in issues, that too in scattered legal writings. They all have, it appears, been circling around the critical issue involved, namely the administration of criminal justice under the given LAW. 

This significant issue of THE LAW by itself and the law for administration of criminal justice, has not been the focus before. The difference may appear thin or no difference seen at all. Here I venture into uncharted territory in my attempt to point out the difference: THE LAW is one aspect, the law for administration of justice is an entirely different aspect/exercise. The word ‘law’ is so freely used that it makes the differentiation quite knotty and cannot be explained in a word or two, not even in a sentence or two.

Decisions have moved around in a whirlpool of analyses missing out the critical problem. Instituted inquiries and much else have since independence skirted around the problem of the administration of THE LAW for criminal justice. From a practical standpoint, however, the problem remains whether THE LAW serves for law and order. A few illustrations will help explain. 

In a case of divorce at Badulla, THE LAW had held on for so long without decision that the Judge resorted to a form of ‘non-law’. The Judge asked his friend the Christian Bishop to help despite objections from the Attorney at Law.  After about two weeks the case was concluded to the satisfaction of the two parties and Court. The difference was in the process in THE LAW and the process outside THE LAW, a form of ‘non-law’. The practical lesson learnt here was that there were the two types, ‘LAW’ and ‘non-law’, both of which were useful to the parties in the case.

In similar strain, were observations made by authors Prof GL Peiris and Sharya de Soysa relating to judicial administration, generally, and of old. They said, the principle of judicial administration should be that the bulk of cases are best dealt with locally and informally. They should be referred to higher formal law only exceptionally. Immanent in this principle was that both LAW and ‘non-law’ had a specific relevance to the need. So then, why not make way for the ‘non-law’ that benefits the people?

I was a witness in a bribery case against a Grama Seva Niladari detected by me at Kantale, when I was ASP Trinco around 1984. The Complainant was a very old poor villager. This case dragged on for many years. It was very hard on the complainant to attend courts in Colombo. It had come to a stage when the complainant was fed up with the case due to the travails of travelling to Colombo, and told me that he can no longer attend courts. He was so timid and feared arrest warrant if he failed to attend court. It appeared to me that he may not live till the next date. 

On this eventual day, I explained the plight of the old man and suggested that we press for the case to be taken up for conclusion due to circumstances. The defence counsel told me that he had punished the accused sufficiently. I then posed the question about the victim of the bribery and the harassment of attending courts. His response was that the State looks after that. Surely, he knows as well as anybody else, that all he gets from the State is travel warrants!

If non-law was permissible, I could have settled the matter summarily and amicably, getting the accused GS to return the bribe of Rs. 500/=, if I remember right. But due to THE LAW, both parties suffered untold misery. I too had to waste time in courts.

These are but few examples of problems encountered in THE LAW practically, for law and order. In realistic terms many difficulties for law and order are thus encountered in everyday life, not easily resolved. In more theoretical terms, however, some rudimentary observations can yet be made. Thus, THE LAW as given, has not the basic idea or concession that both, LAW within the court, and ‘non-law’ outside the formal LAW in court, have, each, a vital role to play in the given order. Nevertheless today, ‘non-law’ is anathema to LAW, repugnant to the instituted process. Even measures of a ‘non-law’ nature which were to be inveigled into LAW was stoutly resisted by law, meaning the law professionals, the courts and the judges, though blithely permitted so even by Parliament through representatives of the people!

How far then has it taken that deviation has come from the first salutary principles of resolution to a more complicated process of judicial administration in the current state of THE LAW? This calls in question the very standing of LAW – its central purpose. The answer is even more thorny and difficult.

Again, from a practical point of view, these stories related here are authentic experiences gained from long working for law and order. As to what happens in courts, at the end of the day, some observations can be made: The Judges move away as but a matter of fact. The Police also go away with their heavy load of books, none the wiser for their experience. The lawyers are in a happy frame of mind and look to the next date. The public disperse neither amused nor bemused. And, so it goes on day after day with little to see in the immediate beyond.

To the police, however, the return from courts to the community sparks off some apprehension. For, to the police, the problem returns, and returns with some impatience and uneasiness. The way forward for police is not clear. For unlike the others in the system of law and procedures, the police return to the people. Soon the police also become mere routine. 

Reflecting nevertheless on the meaning of all this, some thought is also expended on the idea of representation of the public in courts. A legal principle of representation by professional lawyers retained by parties to the cases, figures through in the court process. Representation of the people for justice, morality, for good governance, for law and public order are before the Judges of court. Representation by all the others in court, i.e. the court itself, the police, and the Attorney General, is of a lesser order. The practical problem is that there is no single tangible and viable process either in the courts or at the hands of the others in the system, to deal with the problem of law and order. Surely the law for the administration of criminal justice could not be so divided or divisive in their effort, that they all do not serve a common end, neither logically nor legally. In a shop or supermarket, however, the very same processes operate. In the shop, the ‘law’- meaning plain order – and the ‘representation’- meaning fair representation in distribution, both operate with little let or hindrance. 

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