By R.M.B Senanayake –
Aristotle said more than two thousand years ago, “The rule of law is better than that of any individual.”
The Organization of Professional Associations is discussing the principle of the Rule of Law and bemoaning the loss of the principle in our system of government today. But when some say that law and order has eroded others say- no and point out to the ending of the war and remind us that the situation was worse during the period of the war. But this is to confuse the principle of the Rule of law and the prevalence of order in society.
No Rule of Law is required to ensure order and peace in society. The government knows how to do so. So the government politicians will hire mobs to intimidate attack and suppress protests by the people. The latest episode is the attack on the Ruhunu University students. This method has the distinct advantage that the blame cannot be directly attributed to the Government. This method of maintaining order and peace in society began with the attacks on journalists during the time of the previous President Chandrika Bandaranaike. Now it is a well established tradition. Journalists and others who criticize the ruling regime just disappear. They are picked up by a white van. Those who are members of the criminal under-world disappear and are never heard of again. Our peasants who are of the same mentality as the rulers would even justify such actions. Aren’t our people known to be fools according to traditional folk lore? So we will proceed in this path and allow our policemen to arrest anybody they like, torture them while in custody, produce them before spineless judges and then convict them on forced confessions. The method is guaranteed not to fail. We as a people in our history, never seem to have valued personal freedom. We were serfs during the rule of our ancient kings and our kings could act arbitrarily. The last king of Kandy showed what was the justice that Ehalepola’s family could face in his Kingdom.
So the Rule of Law and the maintenance of peace and order in a society are two different things. We can have order and peace in a society without having the Rule of Law. The modern conception of the rule of law has developed as a concept distinct from the “rule of man”. In the past under feudalism the kings ruled according to their will. They were not always ruthless or brutal. Their rule could be benign if the ruler was a kind man. But no human being is either fully good or fully evil. Much depends on the circumstances and his state of mind at the time. If the king had sufficient self control he could be more objective and restrained in his decisions except where he was personally affected by some crime of his subjects when he could hardly be expected to be objective and fair. So it was necessary to set up a system of law according to which the subjects would be governed, involving a system of governance based on non-arbitrary rules as opposed to one based on the power and whim of an absolute ruler. The concept of rule of law is contrasted with the personal rule of king or the ruler whether the ruler is elected or inherited. The principle is deeply linked to the principle of justice, since it is accepted that no man can be a judge in his own cause much as the so-called King Kekille of our folk lore. So the principle of the Rule of Law involves the idea of fairness in the protection and vindication of rights of the victims. This requires that the judge is free to act independently and according to his judgment. Many countries have been working towards such a principle of the Rule of Law.
Modern western history refers to the Magna Carta where the English King agreed to reign according to the law, in his rule over his subjects. He agreed not to act arbitrarily or impose arbitrary punishments. In the Anglo-American context, the Magna Carta of 1215 emphasized the importance of the independence of the judiciary and the role of judicial process as fundamental characteristics of the rule of law. We talk of “due process” but it is today an empty concept. The principle came to be established that the King too was not above the Law. He too was expected to be bound by the law and accountable to the law. We saw kings being executed during the English and French Revolutions.
Even non-Western countries had some conception of the Rule of Law which their peoples sought to impose on the rulers. A body of laws was promulgated by the King of Babylon around 1760 BC, – the Code of Hammourabi, and presented to the public applying it to the acts of the ruler. The core principles of holding government authority to account and placing the wishes of the people before the rulers can be found in the philosophical traditions across the Asian continent, including in Confucianism.
Today, the concept of the rule of law is embedded in the Charter of the United Nations. The Universal Declaration of Human Rights of 1948 recognizes that all human beings have fundamental rights and freedoms, and states 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…”
For the UN, the Secretary-General defines the rule of law as
“a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies” (2004))
We only have to ask whether our politicians of the ruling party are being held accountable in terms of the law by the law enforcement authorities- the Police and the Courts. They possibly can’t since these institutions are subject to the ruler’s absolute power much like in the days of the ancient kings. The British Parliament had to wage a long campaign to arraign the officers of the King who were following the King’s orders and not acting according to the Law. The British Parliament gave itself the power to impeach any State official. They could not arraign the King but could impeach the State Officer who carried out the King’s illegal orders. They could dismiss these officials since the salaries of the Kings Officers had to be reimbursed by Parliament. It was a long campaign and culminated only when the Parliament set up an independent institution to appoint and discipline the State officials. In USA the same process took a long time even as late as 1890s. But ultimately the State officials were brought under independent Commission with the passage of the Pendleton Act of 1883 which set up the Civil Service Commission. The Act provided selection of government employees by competitive exams, rather than ties to politicians or political affiliation. It also made it illegal to fire or demote government employees for political reasons. To enforce the merit system and the judicial system, the law also created the United States Civil Service Commission. The US Constitution still contains the right to impeach state officials.
At the international level, the principle of the rule of law is now embedded in the Charter of the United Nations governing elements relevant to the conduct of State to State relations. The Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations recognizes the inherent link between the UN and the international rule of law. These were already in existence but were formally acknowledged as binding on them by all member countries. Countries are expected to fight a war in accordance with the Laws of War formulated over a long period and codified in the Laws of War and the Geneva Conventions. How to treat a defeated enemy is also included. When the Second World War ended the Nazi war criminals were tried at the Nuremberg trials. At the end of the First World War, Germany which started the war was required to provide war reparations and compensation for war victims. Defeated enemy soldiers were tried according to Law and not executed summarily or granted amnesty either. Civilians of the enemy race were not to be victimized. .
The Minister of Justice informed the UN Human Rights Commissioner about the violations of the domestic Rule of Law with regard perhaps to Muslims. What will the Minister do if the UNHCR holds that there were such violations?
Otherwise what hope is there for the restoration of the Rule of Law? None whatever in my opinion since no person in power will agree to give up his power. The OPA wants to make the need for the Rule of Law to be known to the people. But are our people interested?