By R.M.B Senanayake –
The Rule of Law is an essential part of restoring Good Governance. Good Governance must include restoring the Rule of Law to bring to book those who acted with impunity through the exercise of political power. The cry of “good governance” seems to be reverberating in our country today. It is as if a social revolution is taking place. A similar situation in the past in the West was he cry for ‘good government’’. During the French Revolution the cry was for liberty, equality and fraternity. In the American Revolution the cry was for freedom and a breakaway from British rule and from the sovereignty of the King of England. The Founding Fathers of the American Constitution were statesmen. They realized that human beings are not angels- the Bible would vouch for that. Those entrusted with power tended to misuse it. That was to be expected of human nature. Men tended to arrogate as much power as possible to themselves. They would also like to be exempted from the application of the law which could be confined to the common people. Even if they were bound by the same law they would seek to act with impunity. But if the law is not applied and those who transgress it are not punished the law would be undermined. Those who are in power may seek to avoid being penalized for their violations of the law. But when they lose power they cannot or should not escape punishment. It is not an issue of taking revenge but rather one of re-affirming the law. So to reaffirm the law it is necessary to try those who violated the law but did so with impunity by the exercise of their power. When they are no longer in power the law must be re-affirmed and they should be tried for the offences they committed with impunity when they were in power. If this is not done those who are being tried under the same law could make a valid criticism.
But the cry for good governance has not stressed the need to try those who violated the law with impunity because of the undue exercise of power. We cannot naively accept that there are good men and bad men. Men are neither all good or all bad but a mix of both goodness and badness. But all must be subject to the law and anyone who has violated the law must be punished. The people’s slogan for good governance must be expanded to include the upholding of the Rule of Law and the need for the independence of the Judiciary. The Rule of Law cannot be upheld if the Judiciary is not ensured is independence.
No one can be entrusted with excessive power for human beings tend to misuse the power entrusted to them if they are not held accountable for any misuse of power. The recent enactment of the 19th Amendment is a victory for good governance and for liberty. The popular version of democracy does not do justice to the need for liberal democracy. There is what is called ‘mass democracy’ which refers only to democracy as the government of the people by the people for the people. It ignores the need for human liberty which is ensured through checks and balances on the exercise of power. Democracy in the vulgar sense of government by the people for the people has meant majoritarian rule and the majority deciding for all the people including the entrenched minorities based on race, ethnicity, religion etc. We need democracy in the sense of liberal democracy where the rights of everybody are recognized and safeguarded. The emphasis in such a democracy is on fundamental rights 0f human beings and how to safeguard hem. The case for majority decision making which is the only practical method does not ensure the rights of the minorities which cannot be abrogated or curtailed by any majority for they are based on the inherent rights of man. The individual has a right to protect his ethnic identity and religious identity. They cannot be curtailed by the majority. Majority rule and majority decision-making are not applicable where it concerns the rights of man. Our populace has tended to assume that majority rule must prevail. So elected governments tend to assume that they can exercise power with no limitations. This is the erroneous view of democracy in the popular mind. Extremist chauvinists seek to base their arguments on majority decision-making. It is this erroneous view that has caused so much trouble and strife in our country. The recent strife against Muslims also stems from their erroneous view that the majority must prevail. We have still to acknowledge that we took the wrong road in 1956 when we adopted majoritarian arguments. The populist majoritarianism may have lost ground but unless the people accept liberal democracy instead of populist democracy such extremist majoritarianism can re-assert itself in the name of race and religion. Although he was defeated Mahinda Rajapaksa the emblem of such Sinhala nationalism is back on the stage thanks to President Maithripala Sirisena. It is said that eternal vigilance is the price of liberty.
To re-assert the authority of the Law it is necessary to try those who by virtue of their power violated the law with impunity during the previous period of rule. It is not a matter of revenge but of re-affirmation and upholding of the Rule of Law which requires that everybody is equally subject to the Law. Otherwise the supremacy of the Law is undermined and each government can act with impunity and hope that the next regime will allow them to get away with their impunity during their rule. Whoever is allowed to violate the law and is not punished means the Rule of Law is being undermined. The previous regime did not enforce the law against those in power and their supporters. This was a serious undermining of the Rule of Law. To avoid permanent damage to the Rule of Law it is necessary to try those who acted with impunity because of their political power. The slogan of good governance must be expanded to include trying those who violated with impunity because to the exercise of their political power. It is wrongly viewed by some people as an act of revenge to try them under the new government. But that is a wrong view. The Rule of Law can be re-established only if those who exercised power o violate the law with impunity should be tried irrespective of their status. That is what the Rule of Law requires. So the new Government must enforce the law against those in the previous regime who acted with impunity.