By Joseph G. Akech, Juba, South Sudan
March 26, 2017 (SSB) —- The spontaneous meaning of ‘justice’ is fairness, truth or getting your right. In courts of law, justice is much more complex and often nothing but ensuring that litigants get their rights within the confines of the law. The operative meaning of this position is often found in the call to serve justice without undue regard to technicalities.
For lawyers, the concern will be following procedural rules than simply getting justice. Indeed most cases are won on technicalities but not on the truth. However, technicalities alone cannot persuade the court to grant remedies sought. Even with ironclad evidence, willful ignorance to court procedures can be fatal to the case and the opposing party could go court free.
Justice, we’re told, protects rights guaranteed by law (the statutes or common law). Courts, therefore, are expected to apply rules and laws made by parliament (statutes) and or principles enshrined in the judicial system of that jurisdiction, the common law and now more increasingly, international law.
However, there are times when we cannot find answers in the statutory laws and or common law. This lacuna was first experienced by King Solomon when an unusual dispute came before him. The issue involved two women who both adversely claimed an infant child. A child belonging to one woman had died and she stole her neighbor’s child claiming to be hers without any color of right.
In his groundbreaking ruling recorded in 1 Kings 3:16-28, the King Solomon designed a method to help him find the simple truth: Whose child was an infant? In order to find the truth, King Solomon had to trick the parties to reveal true feelings in respect of the child.
After listening to the facts, the King could not find any law to turn to. He resorted to finding justice beyond statutes available to him by formulating what became famously known as ‘splitting the baby’ principle.
Employing rare wisdom, he called his sword and declared that the child would be split into two so that each woman gets half. This ruling was immediately welcomed by one woman while the other begged the King to spare the child’s life even if it means giving up the child to the other party.
Hearing this, the King declared the second woman the true mother of the child, based on the mere fact that a mother would not normally approve the killing of her child. With due respect, this ruling appears simple but one that is widely accepted as a disposition of infrequent wisdom. In the above case, justice was certainly served by looking beyond statutes, if any existed.
In another famous case of explorers who were trapped 500 feet deep in the rocky caves. The hopeless explorers had to ‘draw a charter’ to apply to their actions as their hopes for survival were fading away each second.
In their ‘charter’, they agreed to kill and eat one of them in order that the rest would survive momentarily. Methods of choosing one to be eaten were mutually agreed upon by all of them. As the method to choose set in motion, one of them withdrew in the process but his withdrawal was declined and the process went ahead anyway. He was chosen and consequently killed and eaten.
When the men were rescued, they were charged with murder and convicted to suffer death in accordance with the statutory criminal law. FOSTER, J, descending, held that the men were not to be tried by the statutory law but the law of nature because their ‘‘extraordinary predicament made inapplicable the usual principles that regulate… [the offense charged].’’ Such opinion was received with a tumult of disquiet that in no circumstances can statutory laws be ignored.
It is my humble prayer that judges in our jurisdiction should draw inspiration from the above two perplexities yet opinions that proved justice can be found beyond statutes. These examples juxtaposed circumstances where judges looked beyond statutes to find answers to the matters before them which resulted into justice being served.
The undesirable harsh nature of statutory laws requires special wisdom to which our modern judges are trained to deal with. The call to find justice beyond statutes is in effect a call for judicial activism which is increasingly gaining acceptance of the bench.
I implore our justice professionals to try these suggestions in resolving matters where finding the truth using our statutes isn’t sufficient to serve justice but going beyond statutes to find true justice. Precaution is however needed here in order that we don’t render written laws nugatory.
The author, Joseph G. Akech, a South Sudanese lawyer and a human rights activist, blogs on human rights constituency and have written several articles on constitutional law, human rights and criminal law. He can be reached via his email: firstname.lastname@example.org
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