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"State vs. private"  Neo-humanism

P.R. Sarkar on Justice and the Penal System

From Idea and Ideology, and Human Society, part 1.
Copyright Ananda Marga Publications 2004, All rights reserved

Many people say, "When human beings possess so little intelligence, how can they be qualified to sit in judgement over others? No one has the right to judge others." I do not completely reject this argument, though I will raise the following question: "Is it not injustice if people do not use the intellect they have been endowed with in this relative world?" Judgements may not always be correct, the determination of judicial criteria may be flawed, or the mental faculties or the way of thinking of the judge may create doubts in the eyes of people about whether he or she can be considered an ideal person. Should we therefore abandon the judicial system altogether? No, certainly not. No particular standard for measuring intellectual progress has ever been or will ever be accepted as absolute. Nevertheless, in every sphere of life there must be an ongoing effort to progress from imperfection to perfection. This effort will, if only indirectly, make social progress and all-round welfare more accessible to the human race. - Idea and Ideology

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A judicial process ends once a verdict is reached about anything, so a judicial process is not something complete in itself. Only once the verdict is implemented is the full process complete. In other words, the utility of justice in social life is felt only when a penal measure, or better still, a corrective measure, for the concerned individual or group is implemented as per the verdict. But if at any stage the judicial yardstick is not identical with truth beyond a shadow of doubt, no one can deny that special care will have to be taken at the time of passing sentence on the accused in accordance with the verdict given.

I am personally of the opinion that since flaws will always unavoidably remain, no matter how good the judicial system, it is not the intent of nature for one human being to penalize another. Moreover, a detailed analysis reveals that whenever a punitive action is taken to penalize somebody, a feeling of vindictiveness arises in the minds of those administering the punishment, which in turn creates a malevolent mentality. I therefore think that the term "penal system" should be deleted from social terminology. If and when somebody, whether a judge or an ordinary person, takes any type of action against another, it should be corrective, not punitive.

If a system of corrective measures is introduced, criminals, whether they were deeply involved in the crime or not, will have no reason to complain against anyone. Although there may be flaws in the judgement, it will not harm them in any way. A person who is definitely guilty will benefit from a system of corrective measures, and even a person who is not guilty will benefit from such a system.

Thus my opinion is that no innocent person should have the opportunity to think or say, "Although I am innocent, I am being punished because I couldn't afford a good lawyer" due to flaws in the judicial system. No doubt society will be adversely affected if an offender evades the law and is not arrested by the police due to their incompetence, but far greater damage will be done if an innocent person is penalized because of a defective judicial system.

From the social or human viewpoint, everybody has the right to correct the behaviour of everyone else. This is the birthright of every human being. No scholar can dispute the right of people to correct the shortcomings of those with whom they come in contact. The recognition of this right is indispensable for the health of society.

Thus it is clear that corrective measures are necessary to complement justice. Such an arrangement prevents a government from getting any scope to impose a violent, cruel penal system and an oppressive dictatorship on the masses.

Here lies the basic difference between the administrative system and the corrective system. The severe discipline that is needed in the administrative system to strengthen the framework of society or that of the state is not necessary in the judicial system; rather the judicial system is based on rational, tolerant, humanistic ideas and benevolent sentiments. Thus we see that in many cases there is a fundamental difference between the administrative and the judicial systems. Judges can and will frequently temper the merciless attitudes of the administration with humane reasoning; the verdicts of humane judges will therefore be more acceptable to the populace of a state than the pronouncements of an insensitive administration. If this does not happen it will immediately become clear that either an individual or party is abusing the power vested in them by the state.

The Role of Judges
People judge the mistakes of others to the best of their own intellectual capacities. I do not feel that there is anything wrong in this as long as people keep the ideal of welfare in front of them.

People may judge others, but there has always been and still is a difference of opinion among moralists concerning the final stage of the judicial process: in other words, concerning the extent to which people have the right to penalize others. If a person is tried and no action is taken as a result of the trial, the person in question will not have to face the possibility of a miscarriage of justice. But if in the event of a miscarriage of justice the person is penalized on the basis of the verdict, an innocent person will be made to suffer. In other words, penalizing a person on the basis of a verdict involves considerable risk.

Judges can rarely say with total conviction that one person is guilty and another innocent. Their verdicts are based on the testimonies of witnesses, the evidence and the arguments of lawyers. They have very little scope to verify whether or not the witnesses are telling the truth or whether or not the evidence is genuine. Experienced lawyers often win cases because even an eminent judge becomes confused by their arguments. Moreover, if the experienced lawyers also happen to be retired judges, it will be very easy for them to win over the judge. A judge who previously worked under an experienced lawyer will usually find it difficult to reject his or her evidence and arguments. In other words, such lawyers exert a personal influence over the judge. Of course in most developed countries nowadays retired judges are prevented from practising law. This regulation is highly commendable, and results in the general public getting a better chance of receiving justice. However, there is still no guarantee that people will receive impartial justice, because in practice very few judges are able to verify whether the witnesses are telling the truth or whether the evidence is genuine, or to closely scrutinize the verbose arguments of experienced lawyers.

In order to determine whether the witnesses are telling the truth and whether the evidence is genuine, judges will have to take considerable help from detectives. The workload of detectives will increase as a result, and thus it may be necessary to increase the number of detectives. By merely increasing the number of detectives, however, we cannot expect that this problem will be solved, because if the seeds of corruption are hidden in the detective department itself, it will be virtually impossible to eliminate them. In other words, if detectives take bribes out of greed, the accused or the plaintiff will suffer as a result. While it is necessary for a country to have an adequate number of detectives, it is impossible for a government to recruit a large number of highly proficient detectives. It will therefore be necessary for the investigations carried out by the detectives into whether the witnesses are telling the truth and whether the evidence is genuine to be verified again by the judges.

Judges, however, do not need to take sole responsibility for this work in all cases; part of it may be performed by a jury. This will result in an increase in the importance of the jury system. The only criterion for selecting members of the jury should be honesty. Educational qualifications and social status should not be taken into consideration.

It is preferable that the final responsibility for a judgement rest with the judge, not the jury. So judges should be carefully selected from among those whose strength of character is irrefutable. Generally the number of judges is smaller than the number of police or detectives, and their salaries are higher, so with proper efforts it will not be impossible for a country to procure the competent judges that it needs. Local autonomous bodies should be given the responsibility for selecting the members of the jury; business people, brokers and political leaders or party workers should not be eligible to be jury members.

We cannot expect judges to agree with the jury in all cases because that would limit their authority. Nor should we expect that the members of the jury will make good judges, no matter how honest and upright they may be. Furthermore, after conducting investigations into the event in question, the judge and jury may arrive at different conclusions; it will not be wrong to conclude that the judge's conclusion should carry more weight. However, it is possible for a judge to be partial, out to satisfy a personal grudge or in collusion with the accused; if so, what should be done? If the members of a jury become suspicious of the judge's conduct or dissatisfied with his or her behaviour during the course of a trial, the entire proceedings of the case should be brought to the notice of a higher judicial authority before the judge delivers his or her final judgement in court. If the higher judicial authority shares the opinion of the members of the jury, it would be unwise to retain the judge.

Although I do not fully support the way in which justice was administered by the ka'ziis [Muslim judges] in the Middle Ages, it would be useful if judges today emulated their dedication. The ka'ziis took great risk and personal responsibility when they disguised themselves and went to seek the truth at the scene of the crime, or tried to extract a confession from the accused or the plaintiff by using a clever ruse. Such efforts would place greater responsibility on the judges, and thus it might be necessary to increase both their number and their salary. Besides this, it might also be necessary to increase their authority so that they could deliver judgements on the basis of their findings and experience.

However, no matter what efforts we make to ensure fair judgements, we cannot expect them to always be correct. The jury may make a mistake, or both the judge and the jury may make a mistake. Both may acquiesce in injustice due to transitory emotions or excitement. Hence, under no circumstances can a judgement be taken as the final word. So I am constrained to say that if there is any doubt at all about the accuracy of a judgement, no punishment should be given.

From the moral viewpoint also it is obvious that, if they wish to preserve social purity, people only have the right to take corrective measures and not punitive measures. The law that controls every pulsation of human existence has the sole authority to penalize people, and no other. Still, if people could have demonstrated that their judgements were absolutely free from defects or established that their system of punishment was legitimate, there would have been something to discuss. But human beings are incapable of doing this. So for the preservation of society, if people want to take measures against others, those measures will have to be corrective, not punitive. Even if the judicial system is defective, if only corrective measures are taken then there is no possibility of anyone coming to any harm.

Before looking more deeply at corrective measures, it is necessary to closely examine the standard of judges. Those who are permitted to sit in judgement over others and have the power to punish must be closely monitored to see whether any degeneration has occurred in their intelligence, capacity for deliberation, or moral character. From time to time, as and when necessary, reports about the character and conduct of judges may be required by bodies representing the people. A judge who is a drunkard, of dubious character or engaged in any form of antisocial activity has no right to pass judgement on others. I am emphasizing the personal standards of judges because the nature of justice is such that higher priority has to be given to temporal, spatial and personal factors than to legal processes.

In the event of conflict between the criminal code and the moral code, the moral code must take precedence.

While presiding over a trial a judge should not be prejudiced against the accused, but should consider whether he or she has committed a crime or not; and if so, under what circumstances, and whether the crime was committed voluntarily or at the instigation of others. This is the main point for consideration during a trial. The person on whom society has bestowed the solemn office of judge has therefore to be of a higher standard than an ordinary person.

I am not ready to accept that a law student who has graduated with distinction from the law faculty of a university will necessarily make a competent judge. While it is undeniable that good lawyers and barristers have knowledge of the law and skill in presenting arguments, this is no guarantee that they will make equitable judges. Instances of equitable justice can be seen in countless large and small events which occur in individual and social life.

When sitting to pass judgement on an offender the first thing for the judge to consider is whether the accused has committed a crime or not. For the purpose of analysing the types of crime committed by a criminal, and whether his or her offences were committed voluntarily or at the instigation of others, criminals may be classified into the following five categories. - Human Society, part 1