14 December, 2019

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Removing Impunity For Offences Committed Under The Previous Regime

By R.M.B Senanayake

R.M.B Senanayake

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.

MahindaBut 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.

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Latest comments

  • 10
    2

    Very few Sinhalese have thought and expressed views similar to that of Mr Senanayake. As a Tamil, I say thank you to him. It is good that the rule of law is restored. But, what is better is that the value of human life is restored to a country that professes Buddhism. The amount of lives that have been callously ended in Sri Lanka is monumental. From the Tamil programs of 1956 onwards to Mullivaikal and the present, from the killing of 70,000 Sinhalese young during the JVP uprising to the white vans of Rajapakse, the brutalisation that has occurred in the country needs to be ended. The rule of law is just a Western middle class concept. What has happened in Sri Lanka has been the ruthless pursuit of power by a handful of politicians stirring up ethnic and religious chauvinism for the advancement of their own kith and kin. Rajapakse is an example but there are so many others. Bandaranaikes and even the Malalasekeres, great Sinhala scholar, are examples. It was Sinhala Only for everyone but their own children. We have to wash off a lot of blood. An international tribunal which will hear cases against the wrongdoers and bring to light the extent of their crimes is one way. A Buddhist clergy that will go back to the roots of Buddhism is too much to expect but it is another way. It is good that Mr Senanayake has expressed such views. I know that many young Sinhalese and Tamils think in this manner. It is good for the country that there is a change. It is also good that Rajapakse and his minions stand for election so that we can judge whether there is a change for the better.

    • 4
      0

      Right on Mr. Senanayake. Good and compassionate governance should not be an excuse to continue the culture of impunity that surrounds politicians. Immunity and impunity that corrupt politicians have enjoyed because they claim to be people’s representatives must end. Ranil Wickramasinghe thinks that the Parliament is sacred even though it has per capita the highest concentration of crooks and criminals in Sri Lanka.

      Politicians, so-called peoples representatives are the font of corruption. Look at Mahinda Jarapassa in this picture surrounded by crooks and thugs him being the biggest!
      What a pathetic mess the 2 major political parties in the country are!
      So, too in the UNP there are corrupt crooks. Ravi K is not fit to be Finance Minister and so too Mahendran the insider traders at the Central Bank must be held accountable, so too Nivard Cabraal.

  • 6
    1

    The writer says: “To re-assert the authority of the Law, it is necessary to bring those who by virtue of their power violated the Law with impunity during the previous of rule”. Yes we started doing it. What happened to that “virtuous” act? In my opinion it was “surreptitiously” derailed half way through. You saw how every person accused of such “grave crimes against the country” are filing FR petitions and enjoying life outside mingling with people in a joyous mood. Look at the picture published with this article. That speaks a lot more than and beyond any description. Who allowed this to happen? I heard the man who did it, the other day at Campbell Park. He asked the voters to put him in power and he will give that limb of the Law Enforcement full “Legal Status”. What did he do when he had the power and especially when that “Apparatus” was put in place by his Government? Can you expect anything more from this man next time in power? My guess is as good as yours. I feel time has come to get people who say what they do and do what they say. If not, we will continue with our sufferings and some one said “sit and watch and face what we get”.

    • 0
      5

      Isn’t he clever. The rule of law should apply to the old lot and not the new. More Bond scams in the pipeline ? Selective blindness is not as rare as we thought it was.

      • 2
        1

        Ramuuuuuuuuuuuuu

        “The rule of law should apply to the old lot and not the new.”

        First In First Out (FIFO)

  • 2
    1

    The whole problem here is that in a supposed democratic system, is that it I’ll serves it’s animating ideals because people’s participation in government is almost nil as they are only allowed to vote one in five years or so, and even during that process they are subject to various impediments and abuses that are perpetrated by selfish politicians waiting in the wing to enrich themselves.That is how the whole system works.
    Politicians hate to be accountable and are prone to bend the rules to serve their own interests and welfare.
    The entire system as it is flawed due to many factors which to consider at length as time and space does not permit.

  • 3
    0

    With the politicization of the Judiciary, beginning from the time of JR, it is virtually impossible to find a Judge who is independent and neutral. So long as politicians can influence the Judiciary, justice cannot be expected from the Judges. What is needed is an overhaul of the entire justice system and appoint Judges who cannot be bought over with money and any other considerations. Whether you can find judges of that caliber is a moot point in the prevalent situation in SL.
    Not only the justice system, the A G ‘s department needs overhauling.

  • 0
    1

    The country has gone to the dogs and using the rule of law during the elections is abuse of power and cunning manipulation by some. Fear against MR is choking enemies of the country. The mandate is over and a new mandate is in the offing and the people wants MR.

  • 0
    1

    Thank you Mr. Senanayake. I am so glad that you have joined those of us who INSIST that the rule of law should prevail, the guilty punished and the innocent set free.

    It’s so interesting that there are still apologists for the Rajapaksa Regime who insist that due process of law constitutes “revenge.” The lawless conduct of those they consider their leaders is, obviously, A-OK in their eyes!

    We need more voices in this regard and we need also to ensure that the “insurance buyers” in the current regime DO NOT derail the train of justice as they have already given indications of wanting to do.

  • 0
    0

    I am afraid Ram has misread me. I stand by the need to enforce the Law against every one. It is unfortunate that the Prime Minister rushed to the defense of the Governor in the Central Bank bond issue. I wouldn’t call it a scam but it is certainly a violation of the rules of tenders and hence of good governance. Arjuna Mahendran may not have acted to benefit his relative. But there is a technical violation of the tender procedure.
    I have noticed in my public career that when a newcomer takes office he likes to paint the blackest of pictures about the past. But this is often an exaggeration.
    Nivard Cabraal has already challenged similar wild allegations. Ranil has fortunately stopped such wholesale condemnation of the past that he was prone to. Such condemnations should be limited to political platforms.There can be technical violations and dishonest violations. The latter depend on the motives for an action and on the reward or benefit that would accrue from such violation. These must be taken into account in distinguishing between the two.
    It is difficult to pry into the motives of persons who exercised power. But a violation of the canons of good governance has taken place. At the least it is a technical violation. But no violation can be condoned although the
    punishment must fit the offence as well as the motivations for the offence

    We seem to lack a sense of balance in our condemnations of the past.

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