By R.M.B Senanayake –

R.M.B. Senanayake

A few days ago the OPA held a seminar on the Rule of Law. Eminent lawyers Mr. Upul Jayasuriya and J.C Weliamuna and Human Rights Commissioner Dr Prathiba Mahanamahewa spoke on the current state of the Rule of Law.

The concept of the Rule of Law arose during ancient times. It was there even in the Code of Hammurabi. Aristotle said more than two thousand years ago, “The rule of law is better than that of any individual.” The ancient Romans raised the question “who is to “guard the guardians”? What if those who are appointed to guard us misbehave and deprive us of our freedom. They came up with the principle of the Rule of Law. “We are free because we live under civil laws.” — said Montesquieu later on. In Plato’s dialogue, 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, the ruler and his retinue as well as government officials are to be the servants and not the masters of society and the Law should be supreme.

But that is only as far as the concept is concerned. In practice both in the East and the West it was not adopted for the ruler was king and had a plenitude of power. He would not easily part with any of his powers. The first manifestation of the Rule of Law over the Rule of the Ruler was with the Magna Carta of 1215 when the barons forced the King to sign up the Charter promising to govern according to the Law limiting the use of discretion. King John agreed to give up rule at his discretion and to govern according to the law. It guaranteed certain liberties to the people for example by explicitly accepting that no “freeman” (in the sense of non-serf) could be punished except through the law of the land. Clause 61, established a committee of 25 barons who could at any time meet and overrule the will of the King if he violated the provisions of the Charter, seizing his castles and possessions if it was considered necessary. This practice was known as distraint, but it was the first time it had been applied to a monarch. But King John had no intention to be bound by it. The Pope Innocent III ruled that the King was not bound by the oath to uphold the Charter since it was forced upon the King by violence and fear.” He rejected any call for restraints on the King, saying it impaired John’s dignity. So England was plunged into war with the failure of the king to abide by the Magna Carta and the barons offered the throne to a Prince from France.

The modern conception of the rule of law has developed considerably as a concept distinct from the “rule of man”, involving a system of governance based on non-arbitrary rules as opposed to one based on the power and whim of an absolute ruler. Our own history of the Sinhalese kings showed how they acted at their discretion. So the last King of Kandy imposed the most brutal punishment not only on Ehalepola but his wife and children as well.

Today the concept of rule of law is deeply linked to the principles of justice, involving accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. It is embedded in.” The Universal Declaration of Human Rights of 1948, “that all human beings have fundamental rights and freedoms, recognizes that “… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…” As pointed out by Mr.Weliamuna it thus includes compliance with the rights and obligations under the International Law.

The speakers discussed the present state of the Rule of Law in Sri Lanka?  Do we have the rule of Law? Dr Prathiba Mahanamahewa thought it was a matter of degree. All countries he said violate the Rule of Law. But this is to confuse the Rule of Law with the Rule by law as pointed out by a member of the audience. The former refers to the accountability of the ruler under the Law. He is equally bound to obey the law like his subjects. What if he doesn’t and instead acts in violation of the Law. It is then that we can say there is no Rule of Law. Dr M referred to the killing of a black youth by a white policeman recently in Missouri. Is it a violation of the Rule of Law? Not really unless the policeman gets away without being held accountable pointed out Mr. Weliamuna. But there will be no such impunity for the policeman. A judicial inquiry will be held against him regarding the shooting and if he is found guilty he will be punished. There will be no impunity.

But what happens in Sri Lanka? It was President J.R Jayewardene who first conferred such impunity when instead of charging police officers who exceeded the law gave them promotions. Since then the practice has been followed by his successors by directly intervening in judicial processes to save their favorites. We legally have total immunity for the President in respect of both the criminal and civil law under the 1978 Constitution. So the Executive President is above the law as long as he is in power. But now this legal immunity has been extended in practice to all Ministers and ruling party Members of Parliament and even Provincial Council Members. This conferring of extra-legal immunity has been used by the present President to entice Opposition MPs elected under the PR system on party lists to join the ruling party and vote for it in Parliament. In a presidential system of government there is separation of powers between the three organs of the State. Members of the Executive (Ministers) are drawn from outside the Legislature and if any are drawn from I then they cease to be voting members of the Legislature as in France. In USA there is strict separation. Such separation of powers is a sine qua non for freedom. So the Presidents action to woo the MPs is a violation of this principle which is a sine qua non of the Presidential form of government. The President’s actions to entice MPs to join the ruling party would qualify as political corruption.  The opposition has been weakened in the process and a virtual elected dictatorship created. This position was strengthened by the powers conferred under the 18^th Amendment which did away with the independence of the former Independent Commissions thus conferring on the President absolute  power over appointments,  discipline and transfer overall public officials including Judges, even Judges of the Supreme Court. So the Judiciary is no longer independent- a cornerstone of a democratic society.

So the question of whether the Rule of Law still exists cannot be answered by saying it is a matter of degree. One can’t determine whether it exists or not by counting the number of incidents where the Rule of Law has been violated by members of the ruling establishment. The concept requires the ruler to act in terms of the Law and if he or his henchmen violate it with impunity then it doesn’t exist. There is then no enforcement of the Law in respect of the ruler and his ruling party colleagues today.

There is also no Rule of Law if the State which means the ruler or his colleagues resorts to extra-legal force and extra-judicial punishments. Journalists have been abducted by white vans and killed by vigilantes. They are not brought to justice. Lasnatha Wickrematunga was murdered close to an Airforce Camp. Ekneligoda the cartoonist has disappeared. What is their crime or offence? They exercised their constitutional right of freedom of expression to criticize the government. If they had committed an offence they should have been arrested and charged in courts not stealthily abducted and killed.  So there is no Rule of Law today although there may be rule by law except in relation to the ruler, his Ministers and party. There is no authority to hold these persons accountable for their crimes. Are the victims to be denied of justice? Do they become traitors if they appeal to the UN Human rights Commission? What else can they do to obtain justice?

The speakers pointed out the need for educated people and the professionals to speak out against this abolition of the Rule of Law. One speaker referred to the despair of Pastor Niemoller who pointed out that he and the German Protestant hierarchy had remained silent when the Nazis came for the Jews, the Communists and the Catholics. So there was no one to speak for him when they came for him.

The rulers as well as the subjects are equally subject to the Law and the Law must be enforced impartially whether the offender is the ruler or the subjects. In a modern context this means that the government is equally subject to the law as the subjects. The actions of the government are the actions of persons- officials exercising power. So the government is also subject to the law means that the officials who exercise power of the government are subject to the law. They cannot plead that they acted in the interests of the government and are therefore not personally liable for illegal acts. They can be punished for violating the law. So if drivers who are employees of the government violate the traffic laws they must be punished just like ordinary citizens. Similarly policemen who are there to enforce the law cannot themselves violate the law. 

This is the Law week and it is necessary to consider whether the Rule of Law which we inherited from the British is still intact. But what is the Rule of Law. The ancient Romans raised the question who is to “guard the guardians”? What if those who are appointed to guard us misbehave and deprive us of our freedom. The Romans came up with the principle of the Rule of Law. “We are free because we live under civil laws.” — said Montesquieu

The rulers as well as the subjects are equally subject to the Law and the Law must be enforced impartially whether the offender is the ruler or the subjects. In a modern context this means that the government is equally subject to the law as the subjects. The actions of the government are the actions of persons- officials exercising power. So the government is also subject to the law means that the officials who exercise power of the government are subject to the law. They cannot plead that they acted in the interests of the government and are therefore not personally liable for illegal acts. They can be punished for violating the law. So if drivers who are employees of the government violate the traffic laws they must be punished just like ordinary citizens. Similarly policemen who are there to enforce the law cannot themselves violate the law.

To what extent do we find the Rule of Law in our country? That is the question all thinking citizens must ask. Do we have the Rule of Law today? The Tamil people have always complained that they do not have not the protection of the rule of law. They point out that in 1958, 1977 and 1983 they were attacked by hoodlums and that these hoodlums were neither arrested nor prosecuted in the courts. They point out that Tamil prisoners were brutally murdered in state prisons and no one was ever punished. They now complain that Tamil youth and businessmen are being abducted and killed but the state has failed in its duty to protect them. In fact the Tamil claim to a separate state is based partly on this grievance that they are deprived of the rule of law. Christians point out that their churches have been attacked and vandalized but no persons have been arrested or prosecuted for such violations of the law.

The Rule of Law must be independent of ethnicity religion. The law must be enforced as an autonomous order disregarding race or religion, caste or status. We have seen politicians and their progeny acting as if they do not come under the law. The Police have failed to investigate allegations against VIPS. Politics, ethnicity and religion should have no influence on the enforcement of the law.

The opposite of rule of law is rule of person. There are two kinds of rule of person. The first kind is “rule of the few persons,” examples of which include tyranny and oligarchy. The second kind of rule of person is “rule of the many persons,” an example of which is the ancient Greek democracies. The common feature of rule of person is the ethos that “what pleases the ruler(s) is law.” That is, under rule of person, there is no limit to what the rulers (the government) can do and how they do things. Is there such an ethos now prevailing in our state? Some people say there is such a culture now becoming increasingly common. We hope that such a view can be dispelled soon for otherwise we could end up as a tyranny despite the trappings of democracy like elections. The Rule of Law means there are limitations on the power of the government. The government must act in terms of the laws. It cannot act arbitrarily and its actions must be transparent and morally justifiable and in accordance with the law.

There is also the danger that people assume that popular sovereignty which in practice comes down to majority rule, justifies modification of the Rule of Law. In fact in western democracies the Rule of Law preceded universal suffrage and popular democracy. But what pleases the people and is passed in Parliament by a majority is not necessarily the Rule of law. This is particularly so in a plural state with different ethnic and religious groups. For otherwise the majority can pass a law that each person should kill every Tamil or Christian or Muslim that he comes across. There is something sacred in the Law and if this aspect of the Law is ignored or loses appeal then the Rule of law cannot be sustained. In other words popular sovereignty cannot over ride the Rule of Law. “As soon as law lost its sacred character, popular sovereignty was placed above the law, and, by that very act, government by laws was once again fused and confused with government by men” (Sartori). The conception of Law must include the idea of limitation of power of popular sovereignty. Popular sovereignty cannot condone the violation of the fundamental rights of persons. Otherwise freedom of the individual will disappear and people will be subject to tyranny even if it is a democracy. So a key aspect of rule of law is “limitation;” i.e., rule of law puts limits on the discretionary power of the government, including the power to changes laws.