Sarath de Alwis
“Traitors in Black Coats Flocked Together,” was the caption of a news item that appeared on July 9, 2009 in the official website of the Ministry of Defence. The news story identified the five lawyers who represented the Sunday Leader newspaper at a July 9 hearing in a Mount Lavinia court as having “a history of appearing for and defending” LTTE guerrillas.
It carried pictures of three of those lawyers. In addition, the story did something that was remarkably original in our judicial history.
It announced that the ‘original Defence team’ of the defendant newspaper had voluntarily resigned from handling the case citing it was against their ethical and moral standing to oppose a national hero like the Secretary of Defence, who had ‘made Sri Lanka a free country.’
A news report on Thursday announced that the former Defence Secretary Gotabaya Rajapaksa had undertaken before the Court of Appeal to appear before FCID on June 25 to make a statement.
Franz Kafka haunts Hulftsdorp. Kafka was a literary giant who focused on shame and guilt. He was particularly incisive with the absence of shame and guilt in people wielding power and authority.
With a devastating eloquence, often almost uncanny and frightening, he painted despair, solitude and alienation in biting, abrupt lines. He condemned social orders and systems of administering justice which were moral neutral. He was archetypical inhabitant of the ‘surveillance state’.
The term ‘Kafkaesque’ is used even in this day, to describe the nightmarish legalese resorted to by judges and lawyers who alone can comprehend the logic of illogical situations that often unfold before courts.
The term “Kafkaesque” also describes court proceedings manipulated by a coercive state machine that compels citizens to navigate through procedures that are designed to frustrate those who dare to challenge authority.
Today, we are bewildered by Judges recusing themselves from hearing cases, putting off trials by months, releasing accused persons known to be domiciled abroad on bail to seek medical treatment in countries of their domicile and later issuing Interpol red notices to bring them back.
Back when he had filed defamation suit against The Sunday Leader over the newspaper’s publication of details of the controversial MiG-27 purchase in 2006, then Defence Secretary Gotabaya Rajapaksa did not wish to give evidence in person at the District Court, Mount Lavinia. Instead, the supremely powerful official in the Rajapaksa administration, wanted the case transferred to the District Court in Colombo so that he could give evidence from his desk in the Defence Ministry by video link. The Defence Ministry web site described the lawyers appearing for the Sunday Leader as traitors.
The same Gotabaya Rajapakse, patriot, dual citizen, intellectually inspired Presidential candidate and corporatist prophet in the digital age, seems comfortably cocooned in a happy state beyond the reach of the laws applicable to other citizens even nine years later, and out of power today.
That is the kind of land and people that Franz Kafka wrote about.
Franz Kafka is the genius who made an art form in describing the neuroses we develop by watching the slow grinding of what we call the ‘wheels of justice.’
Unhappy with and confounded by the way justice is dispensed today, this writer thought it best to share the experience of the peasant in Kafka’s novel – The Trial.
“A peasant arrives in search of justice. There is a doorkeeper on guard at the entrance to the halls of justice. He begs to be admitted. The doorkeeper says he cannot admit the man now. Come later he says.
The man, on reflection, asks if he will be allowed, then, to enter later. ‘It is possible,’ answers the doorkeeper, ‘but not at this moment.’
Since the door leading into the Law stands open as usual and the doorkeeper steps to one side, the man bends down to peer through the entrance.
When the doorkeeper sees that, he laughs and says: ‘If you are so strongly tempted, try to get in without my permission.
But remember that I am powerful. And I am only the lowest doorkeeper. From hall to hall keepers stand at every door, one more powerful than the other. Even the third of these has an aspect that even I cannot bear to look at.’
These are difficulties which the man from the country has not expected to encounter. He thinks that the law should be accessible to every man. He looks more closely at the doorkeeper in his furred robe, with his huge pointed nose and decides not to incur his wrath. He decides that he had better wait until he gets permission to enter.
The doorkeeper gives him a stool and lets him sit down at the side of the door. There he sits waiting for days and years. He makes many attempts to be allowed in and wearies the doorkeeper with his importunity.
The doorkeeper often engages him in brief conversation, asking him about his home and about other matters, but the questions are put quite impersonally, as great men put questions, and always conclude with the statement that the man cannot be allowed to enter yet. The man, who has equipped himself with many things for his journey, parts with all he has, however valuable, in the hope of bribing the doorkeeper.
The doorkeeper accepts it all, saying, however, as he takes each gift: ‘I take this only to keep you from feeling that you have left something undone.’ During all these long years the man watches the doorkeeper almost incessantly.
He forgets about the other doorkeepers, and this one seems to him the only barrier between himself and the Law. In the first years he curses his evil fate aloud; later, as he grows old, he only mutters to himself. He grows childish, and since in his prolonged watch he has learned to know even the fleas in the doorkeeper’s fur collar, he begs the very fleas to help him and to persuade the doorkeeper to change his mind.
Finally, his eyes grow dim and he does not know whether the world is really darkening around him or whether his eyes are only deceiving him. But in the darkness, he can now perceive a radiance that streams immortally from the door of the Law.
Now his life is ending. Before he dies, all that he has experienced during the whole time of his sojourn condenses in his mind into one question, which he has never yet put to the doorkeeper.
He beckons the doorkeeper since he can no longer raise his stiffening body. The doorkeeper must bend far down to hear him, for the difference in size between them has increased very much to the man’s disadvantage.
‘What do you want to know now?’ asks the doorkeeper, ‘you are insatiable.
‘Everyone strives to attain the Law,’ answers the man, ‘how does it come about, then, that in all these years no one has come seeking admittance but me?’
The doorkeeper perceives that the man is at the end of his strength and that his hearing is failing, so he bellows in his ear:
‘No one, but you could gain admittance through this door, since this door was intended only for you. I am now going to shut it.”
In this passage Kafka, poignantly and elegantly reenacts the absurd world of the law. It is a chaotic world in which the process overrides, supersedes and defeats the purpose.
Kafka’s world of the law is a bleak world. That is the world in which, we ordinary citizens have their uneasy dreams of justice are finally repudiated.
Courts are the bureaucratic embodiments of the law. While all are equal before the law, Kafka’s peasant becomes less equal before the door-keeper.
Let us go back in time. This is how Lal Wickremetunge, Lasantha’s brother and publisher of The Sunday Leader described the Kafkaesque court in Mount Lavinia.
“On the first date of hearing Gotabaya came to Mt Lavinia court accompanied by the Tri Forces Commanders and the then IGP in addition to several Government bigwigs. I represented the newspaper by myself. The streets leading to the court house, roof tops and the court premises were swarming with armed personnel. No lawyer practising in Mt Lavinia Court was allowed to bring their vehicles into the premises as was the practice. Security personnel dressed in suits carrying firearms sat around me. My lawyers withdrew from representing us whilst on their feet.”
Contemporary lessons from the Kafkaesque commentary: We have wasted three years negotiating with the ‘door keeper’ to enter the door. We are yet to learn that the damned door is meant for us. Let us not allow the doorkeeper to shut it on our face.
In his novel – ‘The Trial’ Kafka dives in to the chaos and absurdity of the process of the law with the supersonic precision of a MiG fighter plane.