The dark stain on the black gown


Dear members

My heartfelt greetings to you all.

It is the helplessness of the common man which guides me in this plea to your esteemed body of learned professionals.

A few days ago, in his speech at an event commemorating the Constitution Day , Nuthalapati Venkata Ramana, Chief Justice of India underlined his wish that those involved in making laws, would care to assess the impact of their work and observe how often these laws lead to bigger issues for the common man.

Yes ! The common man fails to understand the role of the judiciary. The common man wrongly believes courts make laws. The common man wrongly shares weird wild thoughts about barristers and people of the legal profession. But how can the common man be blamed? His daily battle with despair leaves no room for any other consideration. Thereby the blind trust in the powers of the state to uphold his interest.

The common man contributes religiously to the running of the system, built on an alignment of pillars of which the legal profession is a significant one.  A pillar which would be resoundingly hollow without independence. In the words of Michael Donald Kirby, former Justice of the High Court of Australia, “‘Where there is no independent legal profession there can be no independent judiciary, no rule of law, no justice, no democracy and no freedom”. JUSTICE & FREEDOM – the ultimate rewards the common man seeks for his never-ending contribution.

The common man looks up in awe at the impressive infrastructure costing billions, being set up for the judiciary. He stands impressed by the parade of increasing law practitioners hailing from prestigious universities. He is dazzled by the PR stunts of government, continuously boasting about the avenues of newly introduced laws. Yet the common man is confused!  An extent to which surely   Samuel Coleridge, would have described as  “Courts, Laws & lawyers everywhere, yet hardly any  justice to be seen “.

A contrario to the common belief, it is JUSTICE and not the “rule of law” which is the spine of democracy. To those who would rush to differ, let them be reminded, it was precisely in retaliation to rule of an abusive law (Anarchical and Revolutionary Crimes Act – 1919) that Gandhi kickstarted the “Hartal” ( peaceful boycott). Let us not forget   September 15, 1935 when the Nazi regime set out on a cleansing spree and announced 1) The Reich Citizenship Law and 2) The Law for the Protection of German Blood and German Honour. Other laws and decrees which followed, namely: The Law on the Alteration of Family and Personal Names (August 1938), The Decree on Passports of Jews (October 1938) and The Police Regulation on the Marking of Jews (September 1941) . An ensemble coined as the Nuremberg Laws.

Closer to our shores, on the land of Madiba, racial segregation was made possible by wilfully crafting of laws. 1949- Prohibition of Mixed Marriages Act, 1950 — The Population Registration Act, 1970 – Group Areas Act, Bantu Homeland Citizenship Act. The great African socialist and anti-apartheid militant, Bantu Stephen Biko believed “The most potent weapon of the oppressor is the mind of the oppressed.” What would the use of the weapon be, without ammunition? That’s where lies the relevance of such crafted laws.

With reliance on good faith of political leaders, proven to be an addictive blunder and finding the holy grail far an easier task than coming across competence at the helm of institutions, the only possible rampart against circumvention of democratic principles rests in the hands of those officers posted within the hierarchy of public service. It would be an absolute tragedy for the common man, should these public servants collude with politicians to swing our country into an absolute autocracy.

Legal officers within the public service are expected to perform as per the Law Officers Act and Code of Ethics for Barristers. They are bound to uphold the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession. However, it is a known fact that some, do knowingly participate in the crafting of laws to suit the convenience of the ruling party’s political agenda. To make up for its inability to undertake constitutional changes, the ruling party has repeatedly been making legal amends requiring simple majority. By means of these amendments they are, diluting the provisions of the constitution, scooping out the powers of the judiciary and making every regulatory body a kingdom of its own but vassal of the emperor.

The combined effect of these manoeuvres is the clipping our fundamental & constitutional rights thereby shrinking democracy. Obviously, riding their high horses, the haughty nawabs would fling their usual mantra “those aggrieved should address to the court”.  A resounding slap to the common man. Still, that would be a mere caress, when imagining how  the common man who toils to:  fund the salary & perks of the parliamentarians voting the bills, the officers drafting the laws and the whole personnel of the judiciary, would ultimately be hit by the cyanide laced bullet bearing the inscriptions of – “locus standi”.

Let alone justice, legal procedures are often a luxury the common man cannot afford. His simple reasoning leads to simple questions, yet filled with pertinence, such as “why would the legal officers knowingly draft laws with either loopholes or unconstitutional elements, which upon promulgation would have to be challenged in courts? “ . Over the last years we have had a taste of the extreme abuse carried out by enforcement agencies, pending the lengthy legal redress procedures.  Gandhi was spot on when evoking the violent nature of an unjust law.

When independence of the profession as a moral requirement, ethical & legal obligation features high in conference programs and key addresses, this itself is an admission of concern. The dark stain on the black gown is too big to be ignored by the Council. Unless it has unanimously conspired to remain a silent spectator, deriving sadistic joy from the execution of democracy. The slightest departure from addressing the issue will be considered by the common man as a further act of aggression. His cry may go unheard, his pain unseen, but his wrath will be deeply felt.

I pray we act for PEACE, JUSTICE & LIBERTY.

Rajen Valayden

For the Common Man


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