21 September, 2020

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Did The CJ Show Any Such Impartiality, I’m Reminded Of Pastor Niemoller

By RMB Senanayake

RMB Senanayake

Why Business should protect the Rule of Law 

An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others. [James Madison, Federalist No. 58 (February 20, 1788)]

We are today facing a situation where the Rule of Law is being replaced by the rule of a man. Parliament has refused to accept the interpretation of the Constitution given by the Supreme Court, which alone is empowered to do so under our Constitution.

The concept of the rule of law is the principle of nondiscretionary governance of those people currently in authority. It stands in contrast to the arbitrary or discretionary rule of some of our ancient kings although they too were expected to follow custom and law. In shorthand, either we have the rule of law or we have the subjective rule of persons who exercise arbitrary authority. Under the rule of law, government agencies do nothing but faithfully enforce statutes already on the books. Under the rule of persons or authorities, those in positions of executive authority have the discretion to decide any matter as they please and they do not have to follow any existing rules or laws.

Friedrich Hayek in his classic work The Road to Serfdom contrasted “a country under arbitrary government” from a free country that observes “the great principle known as the Rule of Law.” “Stripped of all technicalities,” he continued, “this means that government in all its actions is bound by rules fixed and announced beforehand—rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.”This is necessary for businessmen who plan to invest whether they are local businessmen or foreigners. So don’t expect direct foreign investment in the form of factories or long term investments if there is no rule of law and the Courts are not free to decide against the government on any commercial matter.

It is of course true that laws must be executed by people in authority. People in authority can be men who act rightly based on their conscience or men who act only in their self interest and such self interest may involve the perpetuation of their power. The people they appoint to the Judiciary can either be people who impartially enforce the laws or those who decide on the basis of serving their self interest. Did the Chief Justice show any such impartiality in her decision on the 18th Amendment. I am reminded of Pastor Niemoller. Those who are silent in the face of injustice and will not uphold the law, will have their own turn to face similar injustice and unfairness. But the fate of the Chief Justice is entangled with the Rule of Law and hence we have to ensure the Rule of Law for trying her for any offences.

Consider a soccer match referees. They can be people who arbitrarily enforce rules against one team but not the other, or (even worse) who penalize a team for “infractions” of novel “rules” that they have made up in mid–match. When there is no rule of law we will find those in authority making up their own laws and rules like Alice found out in Wonderland.

The rule of law concept has deep historical roots. Hayek quotes David Hume’s History of England—written two centuries earlier—on the value of establishing the rule of law in place of the unconstrained discretion of government officials. Hume acknowledges that it is not always convenient in the short run to forego ad hoc measures. He writes that “some inconveniences arise from the maxim of adhering strictly to law,” but affirms the lesson of history that in the long run we are better off from adhering to the rule of law. According to Hume, “It has been found, that . . . the advantages so much overbalance” the inconveniences that we should salute our ancestors who established the principle.

The contrast between the rule of law and the rule of men is sometimes traced still further back to Plato’s dialogue entitled Laws. In that work, the Athenian Stranger declares that a city will enjoy safety and other benefits of the gods where the law “is despot over the rulers, and the rulers are slaves of the law.” In other words, government officials are to be the servants and not the masters of society.

The rule of law is vitally important because it allows a society to combine freedom, justice, and a thriving economic order. When legal rules are known and government actions are predictable, free people can confidently plan their lives and businesses, and can coordinate their plans with one another through the market economy. Citizens need not fear arbitrary confiscation of their possessions or nullification of their contracts. Entrepreneurs know that if they succeed in turning lower–valued bundles of inputs into higher–valued products, they get to keep the rewards. If they fail, they fail, and they bear the losses. So let businessmen not be silent in this crisis in the Rule of Law.

 

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Latest comments

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    The business and corporate community have remained aloof mainly because they do not want to upset the apple cart and face any more instability.

    However in the long term if they want a level playing field and favourable investment climate they need to contribute toward thsi end by at least speaking up for rule of law and against corrupt practices. They are not and will not remain insulated from the social and political climate in the country. If the country fails so will their businesses.

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    All Sri Lankans are crooks

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    No. Business people/invetors need not be disappointed. Remember how investments thrived under President Suharto.They had only to contact the son or the daughter and the deal was through after the dues had been paid to one of them. All ended up in the same kitty. So there are advantages when the Rule of LAW IS NOT THERE.But there comes a day when all is revealed and people react and throw the corrupt in jail as Suharto’s progeny.Suharto escaped because of his age etc. But he spent his time well.Has any one read “The Power in Motion’about Indonesian corruption?
    Even with the Rule of Law, under Chandrika Kumaratunga’s regime,one recalls how Eppawala was nearly sold by her to a conglomerate,whose international record was well recorded.How many investors have entered Singapore through shady deals as the Courts there discovered, and banned a number of British and Japanese firms, including the Japanese partner in the Eppawala affair.So whoever comes to power, goes on. The only difference is that as time goes on they pay lesser and lesser attention to public opinion or Rule of Law.

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      I think you are correct to a certain extent. But the people who thrive are a few, whereas most private entrepreneurs would fail. I read some where that about 60% of new businesses fail. Also we hear the case of foreigners closing down shop and just going away. We hear cases of contractors bills not being settled by the govt and bribes of 10-15% being demanded. Who can survive in such a climate. Those who survive have to pay a heavy cost in terms of bribes, taxes, donations etc.

      The ones who thrive are the front companies of the regime who manipulate the stock market, buy up properties, businesses etc. They have access to the black money of the regime as well as huge credit facilities with certain banks. They thrive through the award of contracts without tender procedure etc. All in all the climate for genuine investors is rather bleak.

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    Now the entire judiciary is under attack. These are the consequences of judiciary having faith in politicians. They cross over and impeach the judges. How unwise are they to approve removal of independent Judicial Commissions. Never trust the politicians. At least in the future they will them to give impartial decisions.

    Survival of the Judiciary depends on impartial decisions. Never trust officials repeatedly create irregularities, they approved an irregular corrupt method proposed for university admissions, now they justify using same method every year stating it is the Judiciary recommended corruption in admissions. Well established standardized method has been abandon and they themselves blame the Judiciary which approved such a method. Long established national policy has been changed now onwards every thing will be irregular. Similarly balance maintained between the Judiciary and the legislature was disrupted and approved by the Judiciary.

    At least in the future Judiciary would think twice before trusting the politicians. When ever there is a fundamental rights application that has to be taken in to consideration, without rejecting right away on preconceived opinion.

    Citizens seek legal advice and go to courts expecting relief, as there is a serious issue to be resolved. Those issues need to be taken up and debated. Never trust the politicians and expect them to save the Judiciary in return for rejecting issues brought up by ordinary citizens.

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    “Did the Chief Justice show any such impartiality in her decision on the 18th Amendment” – this is the most important sentence of above article.
    The supreme court,within 24 hours,decided that the proposed 18th Amendment was consistent with the constitution.
    The 18th Amendment conferred dictatorial powers,supplementing those of the Executive Presidency, on one man.
    This is evident to any citizen,but was purposely ignored by the supreme court.
    This man,now wants his brother to control a huge portion of the nation’s wealth,on his behalf,and demanded immediate approval of same.
    The supreme court,belatedly realised that it had erred earlier,and proposed the correct procedure.
    We all know what happened.

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    He is Fredrick Von Hayek, double noble prize winner and a liberal philosopher.His book “Road to Serfdom” describes how one party rule whether it is left or right leads to serfdom or slavery.
    In Sri Lanka government MP’s have already become slaves.

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    Cross over is unconstitutional, Judiciary approved that, all members cross over it is one party rule, then they impeach the judiciary. Why do they approve. For their own protection, at least in the future, take impartial decisions.

    For the future generation also take impartial decisions, your own children and grandchildren will be affected.

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    I like the reference to Pastor Niemoller. The CJ repented and there were still people left to rally round her, but was it too late?
    Are we on the path towards becoming a failed state that will take many years and much bloodshed to restore – Indonesia, Phillipines and the more recent Tunisia,Egypt and Libya being examples.

    I found this not all that familiar Aesop’e fable, which aptly describes the situation:

    “A Man came into a Wood one day with an axe in his hand, and begged all the Trees to give him a small branch which he wanted for a particular purpose. The Trees were good-natured and gave him one of their branches. What did the Man do but fix it into the axe head, and soon set to work cutting down tree after tree.

    Moral of Aesops Fable: Then the Trees saw how foolish they had been in giving their enemy the means of destroying themselves.”

    (Was the 18th amendment that “small branch” or the Presdiency itself?)

    It is time we realize our folly and resist with all our might letting ourselves be destroyed.

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