Law and order with justice: New challenges

Justice is a judicial function. This is a statement made, directly and by inference, at the November 16, 2021 proceedings of the United Kingdom Justice Committee ( JC). Chief Justice Lord Burnett was also in attendance and gave evidence.

They declared firmly that Justice is the central judicial function of courts. A truism of justice is this even today, though coming down from old. Nevertheless, this is a statement which warrants reiteration, more so today.

Meanwhile, law and order is failing quietly with failure of Justice. Law and Order though failing for a number of other reasons, Justice can help otherwise. By inference Justice passes through the Criminal Justice System ( CJS) which will cover Law and Order.

But Justice itself struggles through many vicissitudes. Only a few issues for impairment of justice are discussed here. They are the market, COVID-19, and technology. Under market conditions, judicial values lose out to market values. With COVID-19, judicial values are completely subverted by pandemic developments. Technology, such as it is, tends then only to be a distraction from judicial action. Further explication is necessary.

Market values have an exchange value. But justice values are not for exchange. Therefore, economic impulses govern values in what may be termed as a market society. Judicial values can therein be lost or recede under economic impulsion. The economy deals with wealth. Justice deals with other values removed from wealth. In substantive terms, however, this feature of the economic over the justice values is very much of a recent phenomenon, from about three decades ago.

Social media carried it unabashed that no file in court moves from one point to another except with payment. Profit rules over all this. Rule of law, which long underscored judicial values, has suffered in the recent market society with values for free market exchange. Backsliding of Rule of Law, Prof Jensen says, is thus increasingly imperiled under political, social and economic circumstances.

COVID-19

The COVID- 19 pandemic is singled out to add another dimension to the matter of justice through courts. The COVID-19 blow is an ill-wind in recent experience. By extension, its effects are felt over the Criminal Justice System (CJS), tending further to cover Law and Order. All this bears on regular postponement of cases, laws delay, inordinate expenditure and higher costs of litigation, all gaining in money terms. That much is not new.

On the other hand, however, this pandemic reflects much anew on the CJS. Apart from health or employment aspects this is now of corruption. Corruption has taken on a turn quite different. Corruption today is defined as the offence whereby wrongful loss is caused to the government by officials. But change of definition has turned corruption on its head when the government itself is causing the loss to it and such self-inflicted loss is not so considered, wrongful. For COVID-19 has brought on where the government management of the epidemic is itself wrought with corruption. This is from top to bottom and from one side to the other.

Corruption has now a free run, with corruption on the part of corporate lords at the behest of the rulers. Justice can only stand by. Law and order is falling apart. A foreign expert described the COVID19 matter as war, meaning an occasion to spend money.

Technology

Technology, too, follows a similar trajectory at the expense of needs of Justice. Technology itself is little problematic if it were to serve only administration, not to mesmerise Justice. That was said in the UK. In the local scene, it is greeted with the headlines such as ‘ From Digitalization to the Digital Transformation of the Justice System: An Overview’ - The Sunday Times 2 P 11, March 28, 2021.

The intent is that of “technologies redefining the ways in which justice is delivered”. Words as encryption, data protection and computer literacy may mesmerise but do not sit easy with Justice. There is a load of administrative work in courts, as elsewhere, when technologies can help. But justice and administration are kept apart. At the meeting of the JC the evidence of Chief Justice Burnett asserted ‘Listing of cases’ is a judicial function. In Sri Lanka, calling and trial dates are declared as ‘listed’. Observations made in the UK should apply as well in Sri Lanka.

The suggestion is that Justice could yet have prevailed over the problem of weak backsliding Rule of Law, the CJS with all its agencies. One is bold to say this in the background of actual personal experience of instances when courts and Justice controlled the proceedings. Such instances were very rare. Lord Chief Justice Burnett states that impeding factors as COVID-19, physical incapacity, judicial incapacity, finance and other reasons hardly apply to the emerging problem. Procrastination on various grounds does not go with justice. That was the plain statement.

This discussion wends its way through much of the matters discussed here. Yet never is heard of the cognate terms of Justice, namely of Morality, of Ethics, and of Common Good. These values cannot be digitalised, nor reduced to an algorithm, as market exchange, corruption and technology could be.