By Basil Fernando –
There is nothing in a name, of course. A thing cannot be made sweet-smelling or foul-smelling merely by changing its name. However, sometimes a name can indicate a new direction, a new policy. As far as responding to the present state of nationwide unhappiness and frustration on the law enforcement, if there is going to be a change then it does require a new direction and a change of policy. If the idea of creating a new ministry is to address the ugly problem of the descent into lawlessness then the title ‘Rule of Law Ministry’ would indeed be a suitable indication of a new direction and a new policy. However, if nothing is to change for the better, making a new ministry with a new title – the ‘Law and Order Ministry’ – is quite suitable, as it means nothing more than calling disorder by another name.
If the intent of creating the new ministry is to respond to a suggestion from the Lessons Learnt and Reconciliation Commission (LLRC) and also to respond to local and international criticism in a positive manner, then the direction to be followed and the policy to be adopted is for the government to commit itself to the rule of law.
For the purpose of this short article, let us use the following definition of the rule of law given by the former Lord Chief Justice Thomas Henry Bingham from the United Kingdom, who in his retirement wrote a book entitled ‘Rule of Law’. “The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts” (‘The Rule of Law’, Tom Bingham, Penguin Books 2011, page 8.).
What that means is that everyone who exercises any kind of authority should do so only on the basis of such authority as given by the law and do nothing less and nothing more. The second element is that all disputes arising in the course of exercising such authority should be decided and publicly administered in the courts.
What this implies is that restoring the rule of law and ensuring law and order within the framework of the rule of law means restoring the authority of the law and the authority of the courts.
What has gone wrong in Sri Lanka is the undermining of the authority of the well-established laws and, for that purpose, the undermining of the authority of courts. The natural consequence is this descent into disorder and lawlessness.
Now the complaint heard from all over the country is that people have no authority to resort to when confronted with problems. This disabling of authorities, leaving them unable to do what they are expected to do according to the law, unfortunately has been the state’s policy through several governments, particularly since the constitutional changes made in 1972 and 1978.
The new Ministry’s task, if it is seriously given a task, would be to change that disabling environment to an enabling environment. Everyone who holds authority should be empowered to do what they are expected to do and feel no fear of any adverse consequences of doing that.
This is not a difficult thing to achieve if the government really wants to achieve it. The disempowerment or empowerment of the authority is a result of what a government wants. If a government wants law, then the law will be enforced. When a government considers law an interference, then what we will have is what we already have; arbitrariness in place of law.
In creating a new ministry, if the government wants this ministry’s job to be to restore rule of law, then the only option is to get across the message to all those who hold any kind of authority that the government sincerely wants them to do their jobs as expected by law and that the government will not treat them adversely for doing so.
Of course, the people who are appointed to carry out the tasks of the ministry must be those who are expected to carry out the normal functions of administration of law and justice. This is certainly not the function of the military. Its function is to defend the country from external enemies, and confining the military to that function alone is also an essential aspect for creating an enabling environment for law enforcement. When the military is seen in outside barracks in peace time, it creates a disabling function for the normal administration of law and justice.
Giving the ministry a meaningful name will also help to pass the right message to all authorities, as well as to the citizens.