By Niranjan Rambukwella –

“The law is the most precious of human possessions. No care can be too great to be spent on enabling its survival.” – adapted from Alfred Marshall

The coronavirus is come. We have rightly fled to the safety of our homes. This scorched-earth policy of social distancing leaves few bodies for the virus to feed on. Testing and tracing is isolating the cells that remain. While the virus may be annihilated in the coming months, the fever it has brought to our economies and body-politic may last much longer. 

The economy – weakened by the failure to sustain the reforming spirit of the 1978-2004 era and the indulgence of risky dollar borrowing from capital markets since 2007 – was already immunocompromised. We are back in the ICU we left in 1978. 

But I fear less for our economy than I do for the rule-of-law and democracy. Yes, a shock will occur and, yes, it will be heart-breaking and miserable for many. But we will bounce back. Depending on the government’s response – the optimist in me hopes that desperation and crisis may enable reform – we may even emerge leaner and meaner than before. 

The same cannot be said of the law. Our republic has been sick from inception. The coronavirus could kill it. The law is perhaps the most complex and daring of mankind’s inventions. It serves many purposes and many masters. But, at its heart, it performs three great functions. First, it establishes order and stability. By establishing rules-of-the-game it generates a regular and predictable pattern for the governance of inter-human relations. Without the law, we must rely on convention. Such norms, in many ways, are more important than laws. Yet they can be fickle or weak, their foundations are built on quick-sand that may not withstand times of stress. For they are neither entrenched nor enforceable. And thus are less able to hold human civilization together. 

Second, it safeguards the individual against the collective and the small against the powerful. By virtue of being a rule, the law limits discretion. The wish and will of a single man, office or firm cannot be imposed on another if the law precludes it. In a country rife with oppression – whether ethnic, religious, caste, linguistic, class, gender or sexuality – the law, should it work well, is one of the few friends the downtrodden and suffering have. The lesson of our own history is clear: oppression and the attempted subjugation have ended in orgies of violence and left deep physical and psychological scars on our body-politic. The law holds us our island together. 

Third, the law enables commerce and is the primary engine for generating prosperity. The great lesson of Daron Acemoglu and James Robinson’s theoretical and empirical work is that the democracies built on the rule-of-law – in the long-run – prosper. The crux of their argument is simple. Democracies and the rule-of-law do not leave the security of one’s property to the caprice of an individual. These checks on expropriation give individuals the security to invest and toil – knowing that they will be able to enjoy fruits of their labour. Clear rules and impartial justice also facilitate trade and exchange, enabling specialization and thus improving productivity. For example, a small trader will be able to enforce a contract against a large one etc.  As a bonus, they also often enable superior decision-making. The foibles, fallacies and frailties of a single individual are not imposed on all. 

Since November 16 last year, the rule-of-family has been replacing the rule-of-law. Over time, I suspect, rule-of-family will be replaced by rule-of-cabal (military and crony capitalist). Then that too will pass. And then the rule-of-man. 

The writing is already on the wall. The constitution is being tortured. Erskine May was hurled out during the constitutional coup of 2018, now burning cigarettes are being pushed into our Constitution’s sturdy pages. Perhaps the most egregious of these violations is also the most repugnant. A murderer of eight citizens, including four children, was pardoned. This cold-blooded killing is a crime against which the conscience of the entire island must rail. The murder of an innocent five-year old – using guns and bullets paid for by our rupees, and soldiers who feed at our table – must arouse a fury that does not rest till justice is served. But right now, we are concerned with matters of the head, not the heart. 

The Constitution lays down a clear procedure for pardon, an institution itself devised to safeguard ageist miscarriages of justice. α, the President must “cause a report to be made to him the Judge who tried the case”. β, he shall “shall forward such report to the Attorney-General”. γ, “after the Attorney-General has advised thereon, the report shall be sent together with the Attorney-General’s advice to the Minister in charge of the subject of Justice”. δ, only following this careful process of consultation involving the judiciary, official bar and executive can the Minister of Justice “forward the report with his recommendation to the President.” There is good reason to think that this process has not been followed. If Sunil Ratnayake can be released at the President’s whim and fancy, why not Duminda Silva?

Now let us turn to the case of Hijaz Hisbullah, attorney-at-law. According to the best available information at the moment, this feted lawyer – who was involved in some of the most momentous cases in the recent history of our Republic – was arrested by CID officers who came to his house on the pretext of being medical officers. He has not been charged with any crime. He is being held illegally. The government has neglected to appoint a defence minister. Thus, even the draconian PTA cannot be invoked. Under the PTA, Detention beyond 72 hours requires the Minister of Defence to sign a Detention Order. He has not been allowed access to a lawyer – even though this is the law of the land enacted in Parliament. This quote from Niemoller in Lasantha Wickrematunge’s last editorial reminds us where this all ends. “Then they came for me.”

For those who have lived through the excesses of Bandaranaike II (as opposed to I or III), Jayewardene, Premadasa and Rajapaksa I some of these features are not unfamiliar. Yet even these men and women, at the height of their powers, meddled with Parliamentary control over public finance. They did not claim that they had the power to ignore and usurp the scheme of expenditure and borrowing approved by a vote in Parliament. Yet, this is what the Rajapaksas have done. In the Pre-Election Budgetary Position Report they say that they have set aside the Vote-on-Account voted by Parliament for January to end-April, replacing it with a Vote-on-Account sanctioned by the President. This is a grave violation of the public finance provisions in the Constitution. There is every indication that the Government has already breached the borrowing limit set-out-in-law. 

And from 30 April there will be no authority for borrowing any money. Other than the relevant constitutional provisions which have been discussed by others, when it comes to the primary source of domestic financing, the Treasury Bills Ordinance is unequivocal, “The Minister in charge of the subject of Finance whenever authorised thereto by a resolution of Parliament may direct the Deputy Secretary to the Treasury to borrow by the issue in Sri Lanka of Sri Lanka Government Treasury Bills, sums not exceeding the amount specified in such resolution” 

Foreign borrowing has fewer safeguards, but they are still substantial. Section 4(1) of the Foreign Loans Act states:

“The Minister in charge of the subject of Finance may, by Order published in the Gazette, make such provision as may be necessary to give effect to an agreement relating to a foreign loan to the Government of Sri Lanka or to a guarantee given by the Government of Sri Lanka relating to a foreign loan to a public corporation or public enterprise.”

And then at Section 4(3) provides the legislative safe-guard: “(3) Every Order made and published under subsection (1) shall be presented in Parliament within one month of the making of such Order.”

As the entire nation knows the only reason for this mess is the Government’s fear of summoning the People’s representatives. They are afraid of democratic institutions and oversight. 

This disregard for the law materializes even when the health of our Republic is at stake. It was not until weeks passed after the WHO declared a pandemic, did the Minister of Health declare COVID-19 an infectious disease under the Quarantine Act. Until that point, quarantines had no legal basis and anyone could have walked out of a quarantine center free from legal sanction. Similarly, today, there is no legal authority for this curfew. There is no provision under which I can be arrested should I venture abroad on the streets of my town. For this too the government could have invoked the Public Security Ordinance and declared a State of Emergency. This is a historic pandemic, there is every reason to call a State of Emergency. If not now, when? (The answer, of course, is when Emergency is in the Family’s interest.) There is also the matter of preventing burial when the relevant regulations permitted it. But that is for another day. 

Where does this end? Who knows. We have not even reached the end of the beginning. Perhaps this introductory chapter will close with the coming of the looming constitutional crisis. As the nation struggles to survive. The Rajapaksas are rushing us headlong in a constitutional crisis. For there is no better time to arrogate power as during a twin health and economic crisis. Public health dictates that elections cannot be held before 2 June. Private interest demands that they must be. The Constitution provides little guidance.  We are on the verge of default, of economic collapse. People are struggling to make ends meet. Lay-offs and mass unemployment are imminent. Is this the time for yet another crisis? It can be avoided at the stroke of a pen. In fact, there is a very good case to be made that Constitution imposes both a normative and legal duty on the President to invoke 70(7) in such an unprecedented emergency. 

November brought us a President of dubious citizenship. The Ides of March brought us the virus. But unlike Caesar, it did not leave us on that infamous day. Its infection has spread from our bodies to our economies and now to the law. It must be stopped. Like in health, so in politics. Even the most powerful caesars among us are not immune. For remember, O Caesar, that “Cassius has a mean and hungry look”. He will never be content at the side of your throne. His moon waxes. Your power is on the wane. It may yet be enough to protect you. But what about your sons when you are gone? Or when your brother too is replaced by one of his spawn? Then the law may be their only protector. That is the true majesty of the law: in the end we all seeks its comfort and protection.