By Mass L. Usuf –

Mass Usuf

In the case of Gouriet v Union of Post Office Workers (1977-1-AER-696), Lord Denning said:

“To every subject of this land, however powerful, …

Be you ever so high, the law is above you.”  

Some of the utterances made by the Presidential candidate Mr. Gotabaya Rajapaksa on different occasions have begun to have a ripple effect in the minds of the independent voters.  Of the several, this piece will analyse one such statement.  

In his address at the maiden election rally of the Sri Lanka Podujana Peramuna (SLPP) in Anuradhapura, he promised that all imprisoned war heroes will be released by the morning of the day after the presidential poll. 

“A large number of war heroes (ranaviruwan) are languishing in prisons over false charges and cases. I would like to declare at this moment that they will all be released by November 17th morning,” Rajapaksa said.

Fear, Anxiety, Flattery

This statement is typical populist flattery in the post-war Sri Lankan context.  So, what is populism?  The basic tools the populists exploit are fear, anxiety and uncertainty.  They use these conditions that exist in society to gain power and then change the fundamental system of governance.  To appease the people populist sentiments of different types are contextually and consistently addressed.  These days it is common to hear the subject of racism, national security, Buddhism, 21/4, ranaviruwan etc. manipulatively used by speakers of all the parties involved in the Presidential campaign, to their advantage.

In this exercise, flattery becomes an indispensable component.  Socrates, it is believed, had said that an authoritarian ruler flatters those over whom he seeks to rule. One more method is to create a distinction between the opponent and one’s self.  Thus, claim the exclusive ability to solve anything and everything.

Implications Of This Statement

To mention that he will release all ‘war heroes’ held as prisoners is a serious statement. In his celebrated speech to the electors of Bristol in 1774, statesman and philosopher, Edmund Burke said, “ … But Government and Legislation are matters of reason and judgement, and not of inclination; and, what sort of reason is that, in which the determination precedes the discussion; in which one set of men deliberate, and another decide; ….”.  

A presidential candidate positioning himself in this manner exposes himself in a very negative sense – ignorance or arrogance. Not that all what the other Presidential hopefuls say are oozing with wisdom but this one stands out.  In order to establish that this column is not a prejudiced assertion, an inquiry under the following headings would be helpful.

As a presidential candidate

A presidential candidate is supposed to inform the people about his policies at a macro level for the benefit of the nation.  His main focus should be to discuss, debate and defend these.  In contrast, here is someone who wants to micro manage the Department of Prisons. Are the handful of prisoners his priority?  Will not such an act impinge on the functioning of the justice machinery?  Moreover, such sentiments reveal a self-conflicting view, to the often-repeated rhetoric by this person, of a disciplined society and good governance.  The public is confused!

The Separation of Powers

A President of a country should carry out his duties and functions with legality and not arbitrarily. What this entails is respecting the rules of natural justice, abiding by the constitution and the law of the country.  By his statement Mr. Gotabaya Rajapaksa is intending to breach the fragile doctrine of the Separation of Powers. The Executive branch of government will be directly interfering with the functions of the judiciary.

One of the fundamental assets and at the very heart of a democracy is the rule of law.  Article 12 (1) of the Constitution states that “All persons are equal before the law”.  There cannot be one set of laws for the so-called ‘war heroes’ and another for the citizens.  Moreover, there is a need to define this phrase, ‘war hero’.  It has become like a blob of clay in the hands of a person who can turn it into any different shape and form as he wishes. There are several members of the armed forces serving sentences for criminal activities and they have been dealt with according to the law. The law applies equally to all the citizens.

Independence of the judiciary 

“Any person charged with an offence shall be entitled to be heard, in person or by an attorney-at-law, at a fair trial by a competent court.” (Article 13 (3) of the Constitution).

“No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law”. (Article 13 (4) of the Constitution).

To claim that they have been imprisoned on false charges is an affront on the Police, the Attorney General’s department and the judiciary.  The due process of the law had been followed and the prisoners would have had the opportunity to disprove charges made against them.  It was not a kangaroo court that sentenced them or holding them in custody. Such a sweeping call will erode the confidence people have on the judiciary and the judicial system.  The judicial officers themselves will be discouraged from carrying out their noble task of adjudicating.

To the armed forces – wrong message

Our armed forces in general, are to a great extent considered to be a disciplined force. Of course, there are bad eggs too.  However, such statements by a Presidential hopeful, who if elected will be the Commander in Chief, sends an absolutely wrong signal to the members of the forces that they can get away with anything.  Given the extremely sensitive and delicate balance of our social structure as of today, this will be an encouragement towards anarchy and, to act with impunity. 

Presidential Pardon

 The national newspapers reported in May 2019, that the Bar Association of Sri Lanka (BASL) was of the view that the power of pardon granted under the Constitution should not be exercised in an arbitrary and capricious manner without consulting the vital stakeholders, namely the Court which imposes the sentence and the Attorney General.

The BASL made these observations after issuing a special statement regarding the recent act by President Sirisena in granting a Presidential pardon to Bodu Bala Sena (BBS) General Secretary Ven. Galagoda Atte Gnanasara Thera who was serving a sentence by the Court of Appeal for Contempt of Court committed in the presence of the Homagama Magistrate. The BASL will be gravely concerned of this power being exercised arbitrarily in the above instance. 

Sri Lanka, Internationally

Think about the impression that would have been created in the minds of democratic statesmen and leaders internationally, when they heard this statement.  Literally, promising to release all war heroes the very next day he takes the oath of Presidency.  Every person is entitled for his or her amateurish or immature rhetoric but to do so impacting on a national and international level is something that is serious.

Locally – Public Perception

Studies on authoritarianism indicate that after gaining power, the authoritarian in order to reinforce and establish himself firmly in power violates the principle of accountability. This is one of the checks to ensure the proper execution of powers in a democracy. One of the ingredients of an authoritarian ruler therefore, is lack of accountability.  

To defy the due process of the law and to release prisoners who have been sentenced or those in remand custody pending investigation will be a travesty of justice.  When a person is willing to act contrary to this very justice system, how or which democratic institution can hold such a person accountable for his deeds. Mr. Rajapaksa’s position in this regard will be considered as an explicit endorsement of the public perception. He may need to course-correct to keep this country on its democratic path and to show that he is indeed a democratic leader.