Justice is blind – Really? - Part 2
Sadly, when called upon to step up, generally, some courts have been found wanting. They have failed to champion the rights of the poor. It is unacceptable to have two standards of justice; a rigid and uncompromising standard for the indigent and a pliant and permissive one for individuals flush with oodles of cash. KEVIN MOKENTO* writes
It is quite intriguing that the concept of Lady Justice has been embraced throughout the world. If you were to visit Brisbane, Budapest, Dhaka, Frankfurt, Hong Kong, London, Rome and Tennessee you would see Lady Justice with at least two of the three symbols mentioned in last week’s submission.
In spite of all the laws and provisions available to guard against the possibility of injustice being perpetrated by the very individuals supposed to vehemently uphold justice without fear or favor, there is a view that justice can be bought.
That on a good day, all men including esteemed judges have their price. While this is debatable and certainly not true for all judges, what is indisputable is the fact that lay people have often seen courts imposing stiff sanctions on people of lower means, while for more or less similar infractions of the law, the rich often go scot free or get away with negligible sanctions that hardly match the magnitude of their crimes.
Sadly, when called upon to step up, generally, some courts have been found wanting. They have failed to champion the rights of the poor.
It is unacceptable to have two standards of justice; a rigid and uncompromising standard for the indigent and a pliant and permissive one for individuals flush with oodles of cash.
Unfairness is often attributed to two factors. One, he fact that the poor cannot afford the crème de la crème of attorneys and advocates, and owing to their compromised budget, their legal representatives are often hamstrung from securing all vital resources required to competently represent them before the courts.
Two, individuals with money to burn always benefit from access to the best of available legal brains, who do not necessarily always put up compelling and convincing oral arguments and factual evidence before the courts on the innocence of their clients, but in many instances benefit from legal technicalities owing to the harrowing ineptitude and mediocracy of the prosecution teams.
Over and above this, there is a view that some people are above the law and untouchable, simply because of the power, clout and influence they wield. For this reason, throughout the globe, it is important for all directors of prosecutions to be individuals of impeccable and unimpeachable integrity.
They should deliberately surround themselves with qualified, incorruptible and competitively rewarded men and women whose sense of loyalty to the constitution cannot be faulted.
Bright, astute, confident and bold professionals with the intestinal fortitude to anchor themselves on the constitution, fearlessly and resolutely digging their heels in when called upon to step up to the plate, particularly in the face of undue external pressures. Also important is for directorates of prosecutions to be sufficiently resourced with required tools and human resources, otherwise capacity to effectively render justice will forever be an elusive goal.
The view that the wealthy and powerful are often favored by the courts has gained currency in a good number of sovereign states including the so-called first-world countries.
In some jurisdictions, there is undue inclination by the courts to show misplaced compassion and kindheartedness to individuals with bulging purses, particularly in cases of securities and tax fraud, a phenomenon called ‘white-collar paradox,’ by Professor J. Kelly Strader of the Southwestern Law School of Los Angeles.
Unfortunately, this reprehensible practice is at variance with the principles captured in the symbolic Lady Justice. For as long as this conduct is considered acceptable, equal justice for the poor will remain a pipe dream.
Fittingly, Justice Hugo Black, a former judge of the US Supreme Court in Gideon v. Wainwright said, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” A judiciary which obsequiously ingratiates itself with the rich can only contribute to the creation of a surly self-seeking class of oligarchs or as Hillary Clinton would put it, ‘a basket of deplorables’.
Deepak Gupta, a former justice of the Supreme Court of India laments, “The system usually goes into a tizzy if a rich person is put behind bars. Applications for his bail and expediting his trial are filed repeatedly in the superior courts. His case is heard at the cost of delaying the case of the poor litigant. The poor too have a right to life and dignity.
The judiciary needs to hear and help them.” Perhaps this explains why some people have derisively said the courts, especially higher ones, have simply reduced their status to red carpet tribunals, that are only too keen to roll thick, plush and fluffy carpets in honor of affluent criminals, thereby unwittingly serving their interests, as opposed to upholding justice for all.
The courts exist to serve justice to all and sundry. However, all too often, it is the poor who bear the brunt of injustice.
‘Incapacitated’ by their lack of cash, a collusion of factors often work against indigent individuals. Unlike their rich compatriots, they cannot raise money for bail, and consequently have to wait for trial incommunicado while their equally culpable well-off compatriots enjoy all the civil liberties of being surrounded by their loved ones from day to day, daily putting in hours and receiving appropriate monetary compensation for their work, frequently eating out in ritzy restaurants, religiously imbibing their favourite tipples almost daily, while comfortably seated in commodious balconies and spacious gardens as the sun goes down. Finally retiring to the material comforts of their chiropractor-approved firmly quilted long, wide and spine-friendly beds.
Oftentimes, ignorance goes hand-in-glove with poverty. Where poor people are wrongfully arrested, they may not take advantage of their civil rights to sue for unlawful arrest and confinement and may also fail to demand that such arrest record be expunged.
For some, this might be a stigma for life, and sadly, this debauchment of justice has the potential of denying them employment they qualify for. This could also result in the sentencing of innocent souls to pauperdom for the balance of their life. Unduly stripped of their dignity and subjected to the dishonour and humiliation of living on government handouts, an undignified and unsustainable hand-to-mouth existence.
Lewis Edward Lewis who served as a prison warder for 21 years, supervising executions at the Sing Sing Correctional Facility in the US said, “If a wealthy man, or the son of a wealthy man kills, he is insane or deranged and usually either goes scot free or to an insane asylum. If a poor and friendless man kills, he is a sane man who has committed willful murder for which he must die.”
What kind of justice is this? No wonder Justice Arthur Goldberg who served as an associate justice of the Supreme Court of the US said, “Far too often, money, or the lack of it, can be the deciding factor in the courtroom.” It is unfortunate that loaded individuals could be tempted to deliberately glide to the very edge of legality, banking on their dough to serve as a strong, impenetrable and unscalable protective wall for them.
Are arrests for the poor and the wealthy done in the same way? Isn’t it true that throughout the world, poor people are often subjected to the most humiliating of arrests while in some cases the wealthy are dignified by a summons inviting them to report to a police station? In fact, in cases where rich individuals are humiliated through arrests, it might well be that scores of some nature are being settled by some people vested with authority.
It is important for all sane individuals to care about the justice system in their country. Also crucial is the need for a practical expression of deep-seated compassion when underprivileged elements of the society are starved of justice only because they happen to be on their beam ends. This speaks to the over-arching need of recognising and embracing the moral responsibility to treat all people equally and to accord them the right to liberty and the dignity they rightfully deserve as members of the human race, not as an inferior sub-human species.
Of course the public has a vital role to play in ensuring that justice is blind, but it would be easier for the public at large to do so, only if officials charged with the relevant responsibility play their part in fostering the spirit of creating an environment that lends itself to effectively driving the parity principle in the execution of justice.
May all the justices, wherever they serve in the world, be ‘impartial in judgement, hear the great and the small alike,’ and never cringe with fear by allowing themselves to fall victim to being ‘intimidated by anyone.’ Individual and collective agency compels all men and women of mettle to courageously grasp the nettle and play their part in pressing for judicial equilibrium. Only then, can we guardedly say, justice is blind.
*MOKENTO is a Mmegi contributor who has requested the use of a pseudonym