Law for the people or people for the law?

The idea of written law goes back to the ancient Mesopotamian culture that prospered long before the bible was written or civilisations of Greeks and Romans that followed. In fact, the oldest known evidence of a law code is tablets from the ancient city of Elba in modern Syria, known as Hammurabi’s code dating back to 2400 B.C.: “To bring about the rule of righteousness in the land, to destroy the wicked and the evildoers; so that the strong should not harm the weak.”

Aristotle also wrote: “Law should govern.” Law has been defined as a body of rules of action or conduct by a controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequences, is a law.

In terms of Article 4 ( c) of the Constitution, the judicial power of the people is exercised by the people via courts.

The law can be considered as the law of the people, only when the people are accorded due standing in the law process, and afforded the right to manage their own affairs. The law is just and fair only when it is equitable in its application.

Now a question has been posed: “Is the law for the people or are the -eople for the law?” It is abundantly clear that the law is of the people for the people and binding on all citizens alike, including those who govern. But the question has become pertinent due to things as they stand. In practical terms, it is apparent that the law is being manipulated to serve a category of people over the general citizenry.

When the law is for the people, it cannot be selective. But those in the legal profession have accorded themselves special benefits and privileges to the detriment of others. By sleight of hand, however, they make out that these laws are made by the people’s representatives in parliament.

Simpler and cheaper means of achieving law and order is not to the liking of those in the legal profession whose vested interests are diametrically opposite to the interests of the people.

A case in point is the law on Conciliation Boards introduced by Parliament in 1959. This was essentially a law for the people. This form of a law had a clear merit. Lawyers were specifically debarred from participating in the conciliation process. The reasons for exclusion of lawyers were evidently because their professional interests were in conflict with community interests. Conciliation was also based on acceptance of the settlement by the people themselves. Such settlements were easy because parties to dispute themselves participated in the process. Furthermore, recognition of the outcome was easy because of the intervention of village elders whose social standing in the community was high. It also has a further advantage of people’s interest over professional interests. This mode of law and order was in respect of minor crimes and disputes that would otherwise have led to major crimes. Expenses too were minimal.

It is in recorded history that Governor Colebrooke had witnessed a conciliation in progress under a mango tree at Teldeniya in 1833 and highly commended it. Conciliation was a tremendous success.

But this law of the people, for the people, was stiffly opposed by those in the legal profession. Their opposition was on the basis that Conciliation Boards were a usurpation of judicial power of the courts. This is the height of absurdity! How can it be said that the people have usurped their own power? It is clear that those with vested interests want to cling on to power usurped from the people. Seems like they look at it as prescriptive rights!

Another point of contention was that adjudication should be at the hands of trained legal professionals; that they alone understand the ramifications of law making and adjudication process. Most people who have retained legal professionals, know what the real ramifications are -- ‘Laws Delay’ being the main curse.

The 1973 Administration of Justice Law (AJL) was another instance of law change initiated from outside the coterie of legal professionals. The AJL was law for the people where time and expense and laws delay along with other dysfunctions of the process was minimised. But the AJL too was vigorously opposed by legal professionals who lost out in the expediting process. They bid their time till 1978 when with change of government, the AJL was overturned through political influence.

An idea of monopoly control drives through the veins of those with vested interests. They do not conceive that others, besides courts, can help in the judicial process for law and order. A statement in this context by Prof Eric Jensen of the Stanford University in a lecture at the Open University Sri Lanka very recently is relevant in this context: “There is, in fact, no fine distinction between judicial decision and decisions of public servants. The decisions of the public servants affect the lives of the people far more and more seriously than decisions of court. There are many rules and regulations to this process, acted upon on a day- to- day basis, even on an hourly basis. Terms such as collaborative justice, contributory justice, are ideas not entertained by courts and their professionals.” Law in courts then is less for the people.

More examples can be given on the adverse effects of monopoly control of laws if not for space restrictions.

Law and order can be served better if police can deal with minor cases directly, without delay. At the same time, law and order can be served if the public service authorities can contribute their administrative capacity to the formal law, commonly so understood. In a sense therefore, the ability of formal law to serve law and order is greatly enhanced by the support of others. These others outside courts deal with less serious crimes, offences and disputes; the courts handling major crimes.

It is time that the law itself comes into serious review with a view to enhancing law and order, and thereby the police task.