By Upul Jayasuriya –
Bar Association of Sri Lanka is a body completely apolitical. We respect the rule of law, independence of Judiciary and other democratic values. We have consistently opposed the gazette vesting Police powers on the Army, Navy and the Air Force on a continuing basis applicable for the entire country. We have moved resolutions at the Executive Committee of the BASL and the Bar Council and issued press releases. Other professional bodies too have condemned it. All our efforts have fallen on deaf years. In this back drop we decided to call this public Forum to place the issue before you. Rule of Law is defined as the restriction of the arbitrary exercise of power by subordinating it to well defined and established laws. It is the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced.
Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws. In other words, Aristotle advocated the rule of law.
The World Justice Project has proposed a working definition of the rule of law that comprises four principles:
- A system of self-government in which all persons, including the government, are accountable under the law.
- A system based on fair, publicized, broadly understood and stable laws
- A fair, robust, and accessible legal process in which rights and responsibilities based in law are evenly enforced.
- Diverse, competent, and independent lawyers and judges
The judiciary is the last bastion to a person who has been subject to injustice. It is in such a backdrop that it becomes an imperative concept in giving effect to Rule by Law as opposed to Rule by Men.
However, the notion of rule of law can be regarded as being safeguarded only if justice can be administered to all citizens equally. Arising out of this, is the fact that those who have been temporarily entrusted with the duty must maintain, protect and nurture the rule of law, for the benefit of the people not the political masters.
Nonetheless, what has happened today?
Army or the Military is an integral part of the defense system of a state in ensuring the protection of the state and its people. However, they have no role to play in policing a society.
On the contrary, they are regimented to act on the dictates of politicians in power.
In this backdrop, society has rapidly been tilted towards militarization. The military rule which has been enforced under the guise of the civil war, is gradually over shadowing a Democratic society.
Whilst there has been a gradual decline of the rule of law over the last few months it has now reached a critical point. Human rights and Humanitarian laws have been completely disregarded. The entire society has fallen prey to subjective standards of a few who hold unlimited power, and a few others who are closely linked to them. Laws that must apply to all persons irrespective of their status do not seem to apply to them. They appear to act above the law!
What is the role of the legal fraternity in the name and the need of the hour?
I shall quote from Former Chief Justice of Maha Bharatha His Lordship Chief Justice Altamas Kabir, barely 24 hours ago. “It is the duty of the legal fraternity upon its Corporate Socio Responsibility to give something back to the society in return for what we have been benefitted. Issues of Public Interest should be in the foremost in the mind of a practitioner.”
Fundamental rights of the working class such as right to strike, right to protest and the right to express their views through peaceful protests which are guaranteed by local laws including the Constitution and international covenants are being stifled by way of restraining orders obtained from courts.
Those who are in the highest level of governance are blatantly violating the law with the full glare of public scrutiny. If this situation is permitted it would create a dangerous trend where privileged persons would have no Law to obey.
We have seen sad incidents in weliveria, Slave Island, Wanathamulla , Negambo Chillaw and in Kankasanthurai. When will that day be to put an end to such Lawlessness? The appointing process of the Judges that was once vested with the Constitutional Council is now vested with a single person whose criteria is not the suitability, Qualifications or seniority but mere arbitrary practice that lacks transparency, in total violation of the Latimer House Principles to which we are signatories.
It was in the morning papers today, I saw that the Police have reported facts and obtained a judicial order preventing a peaceful protest in Galle Face alleging that it would impede the free flow of traffic. It was just a few weeks ago we witnessed hundreds and thousands of sand bags unloaded and stacked up even during peak traffic. We know who was responsible for this. The Police did not think it fit to obtain similar Judicial orders in that instance. This is the society we live in. But who cares.
A recent issue of The Sunday Times reported that the 9.32 Km-long outer circular highway from Kadawatha to Kerawalapitiya costs an ungodly 7.2 Billion a Km. A 26 Km extension of the Southern Express way to Matara and Beliatta will be Rs. 4 billion a km. The 26 km long Colombo-Katunayake Expressway cost the country Rs. 1.8 billion a kilometre. This is around double the cost-a-km of the completed 95 km stretch from Kottawa to Pinnaduwa on the Southern Expressway. The discretion that is vested among certain privileged persons is being grossly abused. In the name of transparency and good governance we move that such unsolicited bids be totally rejected and the same be made and of fence under the bribery act and such people be dealt with accordingly.
It is the rights of we the citizens of the country that are violated by the award of Mega projects without a transparent tender procedure by way of so called ‘unsolicited’ deals. But who cares? All kinds of lame excuses are given by corrupt officials to satisfy their guardian angels. They must not make the mistake that the intellectual society of this country are not gullible and ignorant. They can fool some people for some time. Not all the people all the time.
It is the call of the professionals to resolve to prevent the further deterioration of the rule of law and urge, professional organizations, trade unions, student unions, civil society organizations and citizens and make others aware of the dangers ahead, and raise our voice against militarization and lawlessness.
We in the BASL passed resolutions, we issued press releases, we did every thing within our means. The hour is upon us to cry for Justice, though the powers that be, may never hear us though they may hear of us, Let’s wake from the fearful palsy. What is the need of the hour, if any, on our individual action?
This voice must most surely be heard of, of the wrongs of headless anarchic attitudes, whilst the ruin of a nation are on the cards and on the heads of the people of this country.
The true time has come, to drive sanity and restore intact, in full glare of public scrutiny, let it not be left to the Judges and Lawyers near and far. Let’s get together and plead for Justice and equity, plead for rule of law, Independence of Judiciary and save the nation’s life, and save it from tyranny!
Time is up for all concerned, to cry for Justice, not only for those who come seeking Justice, but Judges themselves who cannot speak for themselves. It is time that transparent procedures are put in place and independent criteria based on merit be put in place and turn our back to those who take positions in the judiciary, that do not legitimately belong to them.
The Bar Association of Sri Lanka has taken this historical initiative as provided for in its Constitution definitely not for any personal gain neither for the legal fraternity nor for my self.
Martin Niemöller (1892–1984) spoke about the cowardice of German intellectuals following the Nazis’ rise to power and the subsequent purging of their chosen targets, group after group. He said, and I quote,
First they came for the Socialists, and I did not speak out– Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out– Because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out– Because I was not a Jew. Then they came for me–and there was no one left to speak for me.
Therefore let us learn from these mistakes and ensure that we the intellectuals in Sri Lanka stand up for our rights on behalf of ourselves, our families, our loved ones and the generations yet unborn.
*Speech made at the BASL summoned Public Forum on the vesting of Police Powers on the Army Navy and Air Force and the break down of the Rule of Law situation held at the Sri Lanka Foundation Institute on25.03.2014.