Thursday, January 24, 2008

The kangaroo court and after....

Amit Varma links to a transcript of the ‘verdict’ delivered by Mike Procter after a brief hearing, in the Harbhajan case.

There has been much criticism over the manner in which the hearing was conducted and non-adherence to the basic rules of evidence. It doesn’t require Soli Sorabjee to tell us that any higher court will tear this verdict to pieces.

We are all so conditioned by the belief that ‘let a thousand guilty go unpunished, but let not an innocent be victimized” that we insist on presence of unimpeachable and incontrovertible evidence. If a trial has to be fair, it must necessarily comply with this tradition, nay these rules, we scream.

But Mike Procter is not steeped in these legal niceties and relied entirely on his instinct. Absence of evidence, according to him, was not evidence of absence. And he ruled Harbhajan guilty.

Actually, I find merit in this approach. The bane of our legal system is that it lets too many criminals off the hook, merely because adequate evidence is not presented in the manner acceptable to the court, or because the Prosecution had not substantiated its argument with photographic proofs, certified by experts as genuine. The result being that a thousand obviously-guilty persons manage to slip through the loopholes in the system.

A fair trial does not necessarily render justice. If Harbhajan had really uttered those insults at Symonds, and got away due to absence of unassailable evidence, wouldn’t injustice be done to the latter? In a case of this sort, unless a camera happened to zoom in on the individual and also record the words spoken, no evidence can be presented, even though the event might have really occurred

In his book, “Moral Minds”, the evolutionary biologist, Marc Hauser has explored the theme of human morality. He proposes that people are born with a moral grammar wired into their neural circuits by evolution and that the grammar generates instant moral judgments which, in part because of the quick decisions that must be made in life-or-death situations, are inaccessible to the conscious mind. People are generally unaware of this process because the mind is adept at coming up with plausible rationalizations for why it arrived at a decision generated subconsciously.
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So, by trusting his instinct to sum up the situation and satisfying himself that the insulting words had indeed been uttered, Procter was being guided by this moral grammar. By not clinging to conventional norms of fairness, Procter may have delivered justice in this case.

I have heard that the Australian tribunals that used to investigate charges against health professionals could decide on the case, expeditiously, through such an informal hearing. Some years back, the rules were amended to allow the accused the right to insist on a formal hearing.

The same recourse is now available to Harbhajan, He has gone on appeal and will be tried by a New Zealand Judge. No doubt, one who would stick to the book and, in the absence of evidence, dismiss the charges against Harbhajan as the Prosecution had not proved its case beyond reasonable doubt.

Of course, you might argue that Procter may simply be biased against Indians. I will accept that statement if you can furnish clear evidence to back that up.

6 comments:

Vivek Kumar said...

We are all so conditioned by the belief that ‘let a thousand guilty go unpunished, but let not an innocent be victimized” that we insist on presence of unimpeachable and incontrovertible evidence.

Not that it is a "belief", but it is a very good thing nonetheless.

Without it, the reverse would hold true: a thousand innocents would be victimized along with a guilty one.

I am surprized that you, being one of the innocents (I presume), have been led to consider reversing the entire judicial system on the basis of an even that is of no relevance to jurisprudence in real life.

Of course.. given that your blog is all about humour, my comment is probably an over-reaction. But then.. if rediff message boards are any indication, there are people who might take your suggestion seriously :)

Raj said...

Vivek, I am as steeped in that belief as you are, but this verdict made me wonder aloud if we should selectively abandon that approach. For a change, I wasn’t trying to be funny.

I concede that I am guilty of comparing the ‘merit’ of new System B against a weakness of old System A, to damn the latter. But, you are doing the same, when you make a converse pitch for retaining the status quo.

This bogey of “innocent being victimised’ has been flogged too long and the pendulum has swung to the other extreme, where this principle is being misused by the guilty. Trial periods have increased to ridiculous limits and unscrupulous elements ( not the exception, but the rule) exploit the weakness ruthlessly, knowing that in most instances, perfect evidence cannot be produced. Justice is in short supply with the present system.

So, by transposing such rules of jurisprudence to a sports context, we will make life too complicated. Here Procter had delivered what he believed was justice in all of 4 hours. He started the hearing at 2000 hrs, finished it at 2400 hrs and wrote out his report at 0140 hrs. I would accept the verdict philosophically and move on.

Tell me honestly, would you have cited the ICC code of conduct, if Procter after the same hearing and following the same process, had in the end declared Harbhajan not guilty, without assigning any reason?

Sankar said...

Rousseau said "Laws (rules) are an invention by the strong to chain and rule the weak." Hence there are no innocent or guilty persons in this world, only the strong and the weak.

However, this was a case of a whining childish Australian team and hence cannot form the basis for a discussion on 'innocence and guilt' or 'strong and weak'.

Vivek Kumar said...

Raj,

The "innocent being victimised" is not a bogey. This is what would most certainly happen if you were to reverse the basic principle of not punishing the innocents. Imagine a police officer and try to think how many personal scores he could settle, if only the basic principle was reversed.

Agree about the trial periods etc. However, there are other reasons for justice getting denied. But that's a different discussion.

Leaving that aside, and coming to Cricket. I can see where you are coming from, and the source of your frustration. But there is an easier solution to prevent situations like this from arising in Cricket. On one hand, you can use technology (which is a lot more than just stump microphones), and on the other, you can ban all sledging.

About your last para.. if he had done that, the reason would have been obvious to me: no proof of Harbhajan's guilt. However, if he did not cite his reasons for the judgment, he would still be violating the ICC code. Just that it wouldn't interest me enough to point it out. I don't comment on all stories in the whole world, picking out who violated which code.

Raj said...

Sankar, the point of argument itself is whether the complaint is merely a lie fabriacted by a
childish whining Australian team or if it really happened. So, we can't pre-judge. An adjudicator appointed by the ICC went through the process, however perfunctorily, and satisfied himself.

Vivek, we are again getting into a spiral of comparing the claimed merit of one system against an alleged weakness of another, and so there can be no meeting point.

But I will concede that in any civilised society, the default setting needs to be in the manner you have explained. The weaknesses of this system need correction, but that doesn't mean we throw the bab wth the bathwater. Thanks for the detailed comment.

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