(This simplified version of the third chapter of Political Principles and their Practice in Sri Lanka, deals with the Law and the structures that may be needed to ensure the independence of the third important component of government)
Types of law
The most important function of a government is ensuring the security of its people. This includes defence, the work of the security forces in dealing with external threats. But usually more important in daily life is internal security, the maintenance of law and order within a country.
Basic concerns in this respect can be seen in the rules of religions, even before codes of law were developed. All religions prohibit murder and robbery. Such actions are termed criminal acts, and dealing with them is the direct responsibility of the government. Though such actions are perpetrated by some individuals against others, they affect society as a whole.
Such activities are termed Criminal Acts, and government is expected to bring their perpetrators before the courts. When a case is brought under Criminal Law, the government prepares the case and prosecutes the accused. Since these are serious issues, and punishment is severe, the guilt of the accused should be clearly established. To avoid punishment of the innocent therefore, it is necessary for the prosecution to prove its case beyond reasonable doubt. Otherwise the accused is acquitted.
Other offences, though defined and dealt with by the law, affect individuals alone. So disputes about land or contracts, or cases involving personal relations, such as divorce, come under what is termed Civil Law. In such cases, one person makes a complaint and someone else has to respond. Such cases are decided on a balance of probabilities, since a decision has to be reached in favour of one side or the other and the plaintiff and the respondent have to be treated equally. So even a slight inclination to one side is sufficient for a ruling in favour of that side.
There is also a third type of Law which has become much more important in recent years. This is Constitutional Law, which is applied when the government violates the rules according to which it has to govern. One aspect of this Law is seen when the government wishes to introduce new laws or change the constitution. Then the courts decide whether these plans are in accordance with the existing Law. Sometimes governments check whether what they want to do is legal, sometimes citizens can petition the courts to seek clarification, and present arguments – to which the government may respond – alleging that particular bills are unconstitutional.
Another aspect of Constitutional Law arises when governments are challenged as to whether their actions are in breach of any Law. As increasingly societies recognize that government should also be subject to the Law, citizens can bring cases against the government, or officers of the government, for breaching their fundamental rights through executive action. In such cases the government has to respond.
A fourth type of Law is Military Law, which governs the armed forces since they have different procedures to ensure quick action that may be necessary in a military context. Military Law is an internal matter, for the armed forces, and members of these forces are subject to the ordinary law of the land in their dealings with others.
Finally there is what is termed Martial Law, which in effect means a suspension of other Laws. This is rare, and occurs when law and order have broken down so completely that emergency measures are necessary. Executive authority is then given to officials, usually members of the armed forces, for a specific period to perform a specific task, generally the restoration of law and order. Certain procedures have to be followed in such cases however, to prevent abuse, and that is why the term Martial Law is used. This makes clear that, while emergency actions of various types are permitted, breaches of required procedures can later be brought before the Courts.
Courts and other decision makers
Various institutions are required to uphold the law. Chief amongst these are the Courts. These consist of Judges or Magistrates who decide whether the law has been broken, and if so what remedial action should be taken. In most countries the principal institution in this regard is a Supreme Court. There are generally other Courts, for different purposes or different areas, but their decisions are subject to appeal, with the Supreme Court being the final arbiter.
In some countries it is not judges who decide in criminal cases, but juries, people similar to the accused. This springs from a concept introduced in Britain when judges were thought dependent on the executive power, ie the king. The argument was that, for a fair decision, jurors who could be more objective were necessary. Even in such instances however, the procedures followed are those of the Court, with a judge presiding, and he gives out the punishment, following the jury’s decision as to whether the accused is guilty.
Through the ages however societies have felt that recourse to Courts is not always practical, and so there have been other institutions that reach decisions in particular instances. For Civil disputes, various methods of arbitration, where both sides put their case in a less formal manner to someone whose decision they agree to accept, have been used throughout history. In many countries now formal arbitration procedures form part of the Civil Code.
Again, many countries have an Ombudsman, who can, less formally than the Courts, hear complaints about government action or inaction, and recommend remedial action. Some countries also have Human Rights Tribunals which can provide remedies for injustices.
These less formal mechanisms are more common for cases coming under Civil Law. With regard to Criminal Law, in most countries decisions are still left to the Courts, though even here some societies permit arbitration mechanisms. Thus even for cases of murder a settlement can be reached through payment of some sort of agreed compensation.
Legal Officers and Practitioners
The Courts and other bodies described above take decisions according to the Law. To advise them, or to present arguments on behalf of those seeking decisions, are professional legal practitioners known as lawyers. Lawyers represent citizens on both sides of a Civil dispute and on one side in matters of Criminal or Constitutional Law. To represent the government in these last areas, the government has a legal department, which functions under an official known as the Attorney General.
The Attorney General looks into matters where a Criminal offence has been alleged, and decides whether there is sufficient evidence to bring a prosecution. He, or a member of his department, then prosecutes on behalf of the government. Conversely, in matters of Constitutional Law, he responds to citizens who allege breaches of the law by government. In cases regarding new legislation, he advises government about the legality of any proposals, and presents the views of the government in the Courts. This may also involve responding to questions and objections raised by citizens.
To prepare legislation, governments have another legal department, headed by an official known as the Legal Draughtsman. He prepares legislation for the government, and also checks on regulations brought by Ministries in accordance with previously passed laws.
Private lawyers appear for citizens in all the different types of cases mentioned. They may also appear before arbitration bodies and other tribunals. In addition, lawyers are used for the preparation of legal documents, including contracts, property transfers and wills. Though in theory such arrangements between parties do not require lawyers, it makes sense to use them to ensure that all legal formalities are observed.
Finally, government appoints officials known as Justices of the Peace, who are supposed to authenticate private documents. This is to make sure reliable individuals are involved in certification, to provide some sort of guarantee for such documents. Unfortunately the politicization of the position has meant that such certification, while serving a formal purpose, does not always command credibility.
Police forces and other security services
Though cases are brought to court when the law has been broken, ideally a society should maintain law and order without having recourse to the courts. Crucial for this are the forces of internal security. Chief amongst these are the police, whose primary duty is vigilance to ensure that criminal activities are prevented. Unfortunately, with increasing scope for criminal activity, the police find it difficult to fulfil this function. They are involved much more in crime detection. For this they also prepare evidence and present it in court, under the guidance of government lawyers if required.
Nowadays some functions of the police are shared with private security organizations. These hardly existed earlier, but now many government offices and private firms, and even private houses, have security guards. Internal security, which used to be thought of as primarily a function of government, is now perceived as some sort of joint responsibility.
Meanwhile the preventive role of the police has increased in other respects. Earlier for instance traffic control was not a major police responsibility. Now, with increased movement of people and greater use of vehicles, ensuring adherence to traffic regulations is a prime responsibility of the police.
There are also other government agencies that also contribute to security. Customs and excise officials always contributed to financial and legal security, and they do more now with the expansion of criminal activity in areas such as drugs and terrorism. But there are also agents of other Ministries and government departments, such as the Consumer Protection Authority or the Public Health Department, who play a vital role in ensuring security in a wider sense. As the range of activities possibly damaging to society increases, the role of such officials, for instance those of Environmental Protection Agencies, will increase in importance.
Of the institutions and individuals noted above, some belong to the government in the narrow sense of the term, ie the executive. The Law Officers of the government, the Attorney General and the Legal Draughtsman, and their departments, fulfil executive functions, and therefore come under the Cabinet.
In Sri Lanka the Attorney General usually reports to the Minister of Justice. This arises from the duty of the Minister to maintain law and order, ie to make sure that those who break the law are tried and punished.
In Britain, as in America, this duty is seen as quite distinct and the Attorney General is a member of the Cabinet in his own right. The other function of the Minister of Justice in Sri Lanka is to ensure that justice is available to all, which means supervision of the Courts system. This is an administrative role, while decision making belongs to judges who are independent of the Minister. However, since the finances to run the courts, including salaries of judges, come under the Minister, their independence may be affected. Another anomaly is that, as the Attorney General reports to the Minister of Justice, he in effect decides on prosecutions while also taking administrative decisions with regard to the courts in which prosecutions are heard.
In Britain, the administrative head of the Judiciary is an official called the Lord Chancellor, who is quite distinct from the Attorney General. Though in the Cabinet, he is not an elected politician. Since there is also a Chief Justice, who is the head of the judiciary, and whose appointments and decisions are not subject to political interference, the independence of the judiciary is not generally questioned.
Nevertheless, in Britain, as in other countries following the British model, there is no clear separation of powers as far as the judiciary is concerned, just as there is no clear separation between the executive and the legislature. In the United State of America however, with a Constitution based very definitely on Montesquieu’s theory of the separation of powers, the judiciary, like the executive and the legislature, has a clear identity of its own.
Though in America too the Chief Justice, and other Judges of the Supreme Court, are appointed by the Head of State (who is also head of government), such appointments require the approval of two thirds of the Senate, the Second Chamber of parliament. This means such judges are carefully chosen, and are rarely thought to be partisan. Though recently there has been suspicion that judges too sometimes work to a political agenda, this cannot be too obvious.
Furthermore, the administrative system of the judiciary is also independent, in that it comes directly under the Chief Justice. Once appointed the Chief Justice owes no allegiance to anyone else. Appointments to the Supreme Court in America are for life, which avoids the embarrassing situation of retired judges seeking further positions from the executive.
This system comes as close to guaranteeing the independence of the judiciary from the other branches of government as any system can. Of course it is possible to elect the judiciary too, so that it is completely separate, and in fact this occurs in some States in America with regard to minor judicial offices. However, for positions involving major judicial responsibilities, special expertise is esssential, so choices in such cases cannot be left to an electorate.
We see an example here, then, of the principle that democracy based simply on voting is not enough to guarantee a good system of government. Though ultimately, in the United States, it is elected representatives of the people who decide on who is to be appointed to the judiciary, this is not a matter on which a popular vote alone will yield good results. Rather, choices must be made beforehand as to the particular candidates to be put forward for judicial office. Though these choices are made by elected executive leaders, they are made on the basis of knowledge and expert advice, and awareness that the candidates put forward have to satisfy other representatives of the people.
This is another example of the system of checks and balances which characterizes the Constitution of the United States. The executive and the legislative branches, which are elected separately, are each meant to ensure the other does not abuse its position at the expense of the people. And the third branch of government, the judiciary, though not elected by the people, is appointed through a mechanism that involves both other branches.