Although cases have to be brought to court when the law is breached, ideally a society should maintain law and order without having recourse to the courts. Crucial in this respect are the forces of internal security. Chief among these are the police, whose primary duty is vigilance to ensure that criminal activities are prevented or limited. With increasing criminal activity, the police find it difficult to fulfill this function, and are instead involved more in crime detection. In such cases, it also falls to the police to prepare evidence and present it in the courts, under the guidance of government lawyers wherever necessary.
Meanwhile, some of the functions carried out by the police at a stage when society was less complex have now been handed over to private security organisations. These hardly existed half a century ago, but now many government officers, private firms and even private houses, have security guards on a scale which was not thought of as necessary some decades ago. We can see then that internal security, which was considered primarily a function of government, is now perceived as a joint responsibility.
It should be noted that the preventive role of the police has increased in other respects. For instance, some years ago traffic control was not a major responsibility of the police. Now, with increased movement of people and greater use of vehicles, ensuring adherence to traffic regulations, and interpreting them in difficult situations, has become a primary responsibility of the police. Though this may seem a far cry from the security-related functions of the police, maintaining order in this area is vital for the smooth functioning of society.
There are many other government agencies that also contribute to security. Customs and excise officials have always been an integral component of financial and legal security, and their role has expanded with the expansion of criminal activity in areas such as narcotics 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 have a vital role to play in maintaining security. With the development of society and the need for security in new areas, the work of organisations such as environmental protection agencies will increase in importance. It will be necessary for governments to strengthen their preventive role.
Finally, all over the world in the last few decades, greater attention is being paid to what is known as Community Policing. This is connected with the idea I began with in this section, that the police, as the guarantors of law and order in a community, should also play a part in forstalling problems. This can be done through greater involvement in society. Working together with leading members of the community, and also the vulnerable, will help to establish a set of norms, which will not be easy for individuals to violate.
Of the institutions and individuals noted above, some clearly belong to the government in the narrow sense of the term, that is, the executive. For instance, in addition to the police, the attorney general, the legal draughtsman and their departments fulfill executive functions, and therefore, they usually come under the authority of the executive head of government or his or her representative.
In Sri Lanka, and in many countries which derive their legal system from Britain, the attorney general reports to the minister of justice, who is a member of the cabinet. It is the duty of the minister of justice to ensure that those who break the law are tried and punished and that the government itself does not act against the law. The other function of the minister of justice in Sri Lanka, and countries which have similar systems, is to ensure that justice is available to all. This means supervision of the courts system. In theory, this is simply an administrative role, whereas the decision-making authority of the courts belongs to judges who function independently. However, since the finances necessary to run the courts, to say nothing of the salaries of judges and other court officials, come under the purview of the minister of justice, there is some dependence which may promote acquiescence in political agendas. The other anomaly is that the attorney general reports to the minister of justice who thus, in effect, decides on prosecutions while also taking administrative decisions with regard to the courts.
In Britain the duty of the minister of justice to maintain law and order was seen as quite distinct from that of the attorney general, who is accordingly a member of the cabinet in his own right. In Britain, the administrative head of the judiciary used to be the Lord Chancellor, who was quite distinct from the attorney general. In imitation of that idea perhaps, initially in Sri Lanka the Minister of Justice was supposed to be someone outside of politics, which is why he had to come in the Senate. Though he sat in the cabinet, he was not an elected politician, and it was assumed that his decisions would not be subject to political considerations.
But obviously this means that, 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 States, on the other hand, given that its Constitution was based very definitely on Montesquieu’s theory of the Separation of Powers, the judiciary, like the executive and the legislature, has a separate identity of its own. Though the chief justice, and the other judges of the Supreme Court in the United States are appointed by the head of state (who is also the head of government), such appointments require the approval of two-thirds of the Senate. The Senate is the smaller and generally more powerful section of the American parliament. This system implies that such judges are carefully chosen, and are rarely thought to be partisan. In recent years there has been increasing suspicion that judges too sometimes work to a political agenda. But neither can it be too obvious nor can they ignore completely the norms of judicial procedure and its principles.
Further, the administrative system of the judiciary in the United States is also independent, in that it comes directly under the control of the chief justice and his fellow judges. Once appointed, the chief justice owes no allegiance to anyone else. Appointments to the Supreme Court in the USA are for life, which avoids the embarrassing situation of retired judges seeking further occupation from the executive.
This system perhaps comes as close to guaranteeing the independence of the judiciary from the other branches of government as any system can. In Sri Lanka, what we need to consider, given the British system we inherited, is how we can entrench measures to strengthen the independence of the judiciary and increase confidence in the justice system.