Thursday, May 23, 2013

Baby and Bathwater go out of the Window.

Mr. Bumble got one thing right. The Law IS an Ass indeed. In the countless number of hours and days I spent poring over my books at law school, the main thing that struck me no matter what branch of law I was studying at that moment, was how much the law focuses on legalities and procedure. And how little the law focuses on justice. Justice is an interesting concept, because it means giving someone their due. There are tons of debates one can perceptibly spark off: how much justice is ever enough for a victim of irreparable damage from a crime? How can one decide that a given thing is justice in one case but the same thing is injustice in another? What is justice, really? Isn’t it subjective if A person is, or maybe three are, given the authority to decide what justice in a case is?

For the most part, legal practice seems so heavily focused on getting the procedures right. You have legal maxims that say that a person sleeping on his right cannot afford to wake up too late if he wants justice, or that the ignorance of a law is not a justification. What happens in societies where there are whole masses of people who don’t know where their next meal will come from? How can we expect them to know the law? Is it justice to demand that they should already know the law, and their ignorance is not excusable? What happens in societies where procedural requirements subvert the substantive, where delays in courtrooms are only because of the intervening actions of bureaucratic red tape?

Si, hubo genocido en Guatemala (Yes, there was Genocide in Guatemala)
Image from here

Let’s take a scenario. Your country’s faced war. The leader of your country, it appears from all the overwhelming evidence you have, has ordered genocide and pursued other campaigns that have been in flagrant disregard of all things human rights. A special court is constituted to try your leader and it convicts him for genocide. But before you can say genocide, the constitutional court of your country annuls the trial and throws it back by many days to the effect that the decision it passed does not hold good any longer.
Makes you angry, doesn’t it?

Well. That’s what people in Guatemala are going through right now. Why? Well. Because of procedure. Rios Montt was allegedly denied his right to due process. Don’t get me wrong – I’m all for audi alteram partem (or the fact that both sides have to be heard) and I believe that the accused should not be convicted before he is convicted. I am also pretty sound on my understanding and acceptance of detainee rights and the rights of the accused. This annulment clearly puts the case back into the docket. It is possible that there may be a retrial. It is possible that there may be a conviction, and it is possible that there may not. But the fact of the matter is that Rios Montt remains free. I don’t mean to judge this case at all, but when the evidence is overwhelming, why annul the trial? Wouldn’t it have been a wiser thing to offer Montt a chance to appeal against his decision, instead of nullifying it?

Annulling the trial to me, felt like throwing the baby with the bathwater. We make gains one step at a time, sometimes making these steps on tip-toes. But with a swipe, these gains go flying out of the window.