The two faces of justice: A review of two books

12 Aug 2021

The two faces of justice: A review of two books

12 Aug 2021

BY Basil Fernando This short article deals with two books. The first is a book by a woman who has spent the last 21 years pursuing justice for her brother who was killed at a Police station. Her long journey began at a time when she was a schoolgirl and it has since taken her to many Police stations, to several Magistrate’s Courts, High Courts, to the Supreme Court, to the Human Rights Commission and also to human rights organisations in her country and outside, with thousands of episodes she has experienced, summed up in a short book written in Sinhala titled 21 Years in Search of Justice. The other is an academic work which was prepared as a doctoral thesis which was later published as a book by Nick Cheesman titled Opposing the Rule of Law: How Myanmar's Courts Make Law and Order, which is a book about the problems relating to justice in Myanmar. Both books are on the same theme. But they are written from very different perspectives. The theme around which the books are written is similar. That is, the problem faced by anybody who goes in search of justice within the context of their country and within the institutional framework of the two countries. They both deal with almost insurmountable difficulties that beset one when obtaining justice. However, the perspectives of both are very different. Priyanthi, a woman who has spent 21 years in search of justice, is still interested in pursuing her search even after all these long years. Cheesman however has come to the conclusion that the legal system of Myanmar is one that opposes the rule of law. The conclusion to draw is that there is no possibility of obtaining justice in that framework. Priyanthi is a citizen of Sri Lanka and the fact that her brother was abducted, tortured at a Police station and died due to the injuries he sustained are all a chain of events that she cannot escape from. Her views on justice are one of a person who cannot escape from the existential reality she was placed in. Options open to her are on the one hand to declare the whole exercise of the search for justice as hopeless and to descend to despair or on the other hand, to, while recognising all the difficulties that exist, wanting to find ways to overcome those problems in order to carry on with her life as a person who remains loyal to her brother and family and also to the rest of the people of her country. Essentially, she is moved by a moral impulse. She believes that justice is an entitlement of everyone. A wrongful death caused by anyone calls for accountability by the society as a whole. And this social function is exercised by the State through whatever mechanisms it has. To give up this basic moral position is to accept very inhumane conditions for living. She must either resign herself to a situation which she considers as morally repulsive or she should fight it all. This implies that obstacles that come against the search of justice need to be understood and need to be fought against. Thus, the search is not merely to find justice for her brother but to find the ways to make the prevalence of justice within her society. Thus, the individual’s search for justice gets extended to a much more collective sense of the search for justice for everyone in her society. The obstacle that exists is those that should be fought against and through a prolonged and gradual process be defeated. The position taken by Cheesman leads the other way. The system is based on rules opposed to justice and therefore those struggles for justice within that institutional framework are a waste of time. Since the system is opposed to the rule of law which in effect means that it is opposed to justice, there is no place for justice within Myanmar. If that is the message that is to be carried to the people of a country where they face extreme forms of repression, what purpose does it serve except to encourage them to resign themselves to their fate and accept as inevitable that they will have no chance at all for any kind of justice? For them, there is no possibility of reform. The assumption is that since the system is opposed to the rule of law, it cannot be reformed. Then, if a person in Myanmar faces a situation similar to Priyanthi, what have they to do? They must tell themselves “well there is nothing that could be done about it”. However, the moral impulse to defend life and also to resist the basic onslaught on human dignity is a natural characteristic. It is not that Priyanthi is a special person. She is just another human being faced with a fundamentally unjust situation. Her fight arises from a consciousness of this condition. Her fight is of a person who is not fatalistic but of a person who fights against a prearranged plan. The distraction from the prearranged plan takes her to various courts on the one hand and at the same time, to her society on the other, where she wants her experience to be discussed as a part of encouraging and deepening her struggle to change these seemingly prearranged plans. Having worked in many countries in Asia, I have come across many like Priyanthi. They are fully aware of the obstacles that are against their search for justice. They are even threatened with worse consequences for their pursuit of justice. Yet, they do persist. They believe that those institutions that need to be reformed have to be reformed. Whether they have to be reformed from ground upwards or from somewhere closer to the ground and upwards, do not make much of a difference. How a seemingly unreformable system could be made to reform is a matter that we find examples in every country. In the US, slaves who are now called Afro-Americans, are a category of people who had no possibility of obtaining any justice. However, out of the ashes, arose movements that went on for years and destroyed the institution of slavery and have achieved a certain degree of progress towards equal citizenship rights. Afro-Americans too claim that they have the same rights as the rest of the white population. Had the Afro-American taken the position that the system is opposed to the rule of law as far as the slaves are concerned and therefore there is no hope for protection under the rule of law, that fundamental social reform would have never started nor would it have continued. It is even worse when it comes to the question of apartheid in South Africa. If the South African system was taken as a system opposed to the rule of law, and therefore there was no possibility of reform, then that would have led to a position of the continued lack of legal rights for the black people of South Africa. If Nelson Mandela was to have taken that position, even now, the situation of the South Africans would have continued to be the same. It is a more glaring issue when it comes to the untouchability issue in India. The entire social arrangement of India for several thousand years was opposed to the people who did jobs with physical sweat, who were considered low caste and another group called outcaste, where even the legal system was completely opposed to them. If the untouchables took the position that the system is opposed to us and that the system cannot be reformed, then again the entire history would have been a stagnant one. Similar examples can be given from around almost all countries. The fact that a system opposes the rule of law is no reason at all to accept the position that it is not reformable. That is a position that no human being that has a moral sense could accept. It is the resistance to such a condition that is necessary to create social change. The consequence of this view that something is opposed to the rule of law, could in the end, lead only to take up the position of anarchy, which means that all that needs to be done is to destroy. And that too is a position that throughout history, some groups even in countries like the US, took. They wanted everything to be physically destroyed and to build things from the ground up and to build a completely different world. And one of the best examples of this view expressed in those same terms is that of the experiment of Cambodian Pol Pot. He wanted the society to be brought back to year zero and thereafter to develop another world which may be more conducive to justice. His experiment ended with the destruction of more than one seventh of the entire population of that country and the destruction of all the intellectuals whom he thought were the people who represented the opposition to the betterment of the people. Thus, those who are opposed to justice should be physically destroyed and that anarchist point of view is all that is left for anybody who takes this view about a system that is so completely opposed to the rule of law and therefore not reformable. Priyanthi lives in the context of her society. She is not an outsider to that reality. She must fight within that reality to change it and she has devoted 21 years of her life to the cause and publicly states that she will continue to do so despite all the attempts that have failed. (The writer is the Asian Human Rights Commission’s Policy and Programmes Director)

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The two faces of justice: A review of two books

The two faces of justice: A review of two books

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