1 October, 2020

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The Rule Of Law – Are Our People Interested?

By R.M.B Senanayake –

R.M.B. Senanayake

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.

Mahinda - ShiranthiSo 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?

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Latest comments

  • 4
    0

    Mr. Senanayake,

    You spent quite a bit of your time researching sources and putting it all together to make your point that Sri Lankans are apathetic and selfish. You could have just said that!

    We want someone else’s child to die in defense of the motherland; we want the rest to get a sub-standard education, wait in queues at hospitals, bus stops, markets, airports…you name it, we are standing in lines.

    Its not funny. The standing in line complex has become so ingrained in us that even overseas, the moment lunch or dinner is announced we rush to…YES, STAND IN LINE! Everyone else is happily chatting and the Sri Lankans are in line, paper plate in hand!!

    So, until and unless we place a value in the freedom to speak freely, write freely, do business openly and live our lives with a COLLECTIVE SENSE OF COMMUNITY, RESPECTING the rights of others to disagree and do things differently, we shall continue to be the people we are.

    This works perfectly for the rogues in power because all they need to do is throw a few carrots here and there and the entire power structure is compromised. From the ex-Chief Justice’s husband running rackets whilst she sits in Court, to Central Bank governors with dubious histories and Finance Secretary’s banned from holding any office we have everyone eating from the same pit!! Lets not talk about Defense establishment and the Police. And, we have not even mentioned the poor politicians!

    Of course one can join the rogues and have a wonderful time too. There are many who are living like there will be no tomorrow! To them, we are spoil sports and pessimists.

    No we are not. We want to have the same opportunities as everyone else WITHOUT having to sacrifice our rights, freedoms or principles. It is a simple ask but JUST TOO MUCH for now!

  • 2
    0

    In this country the laws and more are applied to harass ordinary people. The law enforcement, politicians and govt act above the laws of the country. They make laws, break laws and act beyond the law. So do their friends and relatives. Yet the ordinary fools vote for these monsters at election time.

    • 4
      0

      Sri Lankans are used to living under the rule of kings for more than 2 millenniums, and under governors from the West for nearly 4 centuries in virtual autocratic rule.

      Come 1948, they got a beautiful democratic constitution when Britain left the island in the hands of the Sinhala ruling elite.

      Since the people and the ruling elite are not used to democratic tradition, we find the island brought to the dungeon, and the rulers behave like despots.

      Late Steve Jobs, the co-founder of Apple Inc. said; those who are in an environment of excellence only know what excellence is. Similarly those who are immersed in democratic traditions only value democracy. Others don’t know its value.

      Many third world countries who got independence from the Western colonizers, and a democratic start are in a similar situation as Sri Lanka, only the degree varies: Sri Lanka is near the bottom of the list.

  • 1
    0

    Our people are interested in getting ahead I think, like all others. How to enforce the rule of law when the cost of a basket of goods exceeds the policeman/lawman’s ability to pay for it? How, when the treasury benches are manned by thieve?

    ‘the rule of law is better than that of any individual’ Surely that law is upheld by individuals.

    What if that individual is confronted with a choice between the rule of law or the rules of survival?

  • 1
    0

    We are NOT and as a matter of fact EVEN THE INDIANS…………..Its Indian allover in Sri Lanka..India needs to come clean first……..
    JJ Amma is not even safe and she has lost control of her part.

    “FOR IMMEDIATE RELEASE
    AHRC-STM-116-2014
    June 10, 2014

    A Statement from the Asian Human Rights Commission of Francis Bijjo
    INDIA: Where even a judge is not safe

    The rape of a judge in her residence, located in a high-security area in the city of Aligarh, Uttar Pradesh, speaks volumes about both the epidemic of sexual violence and the respect for law in India. Such an incident cannot occur in a jurisdiction where a citizen is convinced that the law will play its role in preventing and punishing crime. India is not such a jurisdiction.

    Who in India is safe when even judges are not spared? The ceaseless stream of news reports about incidents of sexual violence inflicted on women and children across the country, ever since the Delhi gang rape case in December 2012, has failed to generate a national debate about India’s failed criminal justice apparatus, forget about the critical mass needed for a transformation.

    That such things happen across India has been the best response Indian political leadership has been able to muster so far, amidst routine statements of the ‘boys will be boys’ variety delivered by regional politicians. And, that such statements are irresponsible is the only hackneyed response elicited from the international community, including the Secretary General of the United Nations.

    At the core of the problem is not the prevailing culture of gender violence, something India shares with other countries in Asia. What is lacking in India is the ability of its criminal justice apparatus to deal with crime.

    • 0
      1

      thondamannaru,
      Some of our judges may deserve such treatment.
      Most magistrates routinely remand persons brought by police without even asking the person accused,in private,as required by law, about his views/version of events.
      Recently,as reported by the Asian Human Rights Commission,a young man brought by police was thus remanded by a lady magistrate,and he died the next day,in the police station, “in his brother’s arms” due injuries sustained by assault earlier.

  • 2
    0

    Our people are only interested in the Rule of Law when it affects them directly. Most of them are struggling, trying to feed their children to care about such matters. That is one of the reasons why the politicians can get away with so much.

    • 3
      0

      I think it is the nature of lanken people.
      Their way is just to see it on the surface and get away from the realities. No matter anythign would have gone wrong for them, they just need to survive the day. Reason for this could be the unbearable cost of living or many other factors. That is it. No plans at all. How can they plan if politicians dont give them any assistance. Anyways, So long each and everyone´s mentality is changed towards good, anything and everything would remain as it is now.
      How many of the average would raise the questions:

      a)As to why the road contructions end up with no world´s standards while collosal amounts are being wasted ?

      b) Why cant people raise the issue LOUDLY as they can… it is their funds, no body else´s

      • 1
        0

        Sama

        I do not think that it is proper to dismiss the Lankans on the basis of their apathetic nature because nothing can be achieved or any progress made if we give up all hope because it wouldn’t be fair when it comes to the welfare of our future generations and we are not to be the target of their curse for letting them down.

        If we are interested in the welfare and progress of our children and grand children then we should have the following five points in our mind.
        1) The right to information.
        2) End to impunity and nepotism and all appointments to be on basis of merit.
        3) Equality of all before the Law.
        4) The right to information and the accountability of their political representatives.
        5) The application of the Rule of Law.

        The cost living you are worrying about will automatically come down if you,me and others do what we have to do to ensure the above five are taken in and acted upon at the next elections by the voters.

  • 2
    0

    People of Developing countries as a whole have no idea about the valuability of rule of law since they are not used to the other way around. Fact is the country, people of this island enjoyed more democracy in the past, but today that has reached to the levels that they have to beg for even their very basic rights; like for example asking to do the due in terms of high crimes constantly be reported inthe country today – end up with the accused being bailed out. This was the case with Tangalle tourist murder to Duminda Silva´s murderous involvements, not long ago, but alone within the last 3 years. People are compelled to compare the situation with the worst- they feel at the time war was at its height, life in general was much miserable than it is today. However, latter should not be the answer. That is why I feel if the LEADERSHIP of a country is veryhonest – they can implement rule of law strenghtening prevailing laws in the country. They could do so ascending the war is over. But the man in power is not even interested in doing the least towards the justice rule of law of the country.
    People blame RW for no reason, but I believe, he would have done the law related issues much better than Mahinda, because RW´S background is clean.

  • 0
    0

    Thank you very much for your article RMB.
    It explains what the subject of jurisprudence is all about and is useful not only for aspiring law
    students, but also some of those who hold important judicial posts and are supposed to
    play an important role in the administration of law and justice in our country.

  • 1
    0

    The Rule of Law – Are Our People Interested?

    The answer is a resounding NO!

    Some of the reasons for this are that the overwhelming majority of Sri Lankans are not well read persons, possess a servile mindset, adopt a fatalistic attitude, have very narrow objectives in life and follow the path of least resistance.

    This state of affairs bodes a rather lackluster future for the country, if not something worse.

  • 0
    0

    R.M.B Senanayake –

    Yes, there is Rule of Law

    The Para Law.

    We can have rule of law, if the paras are sent back to South India, including the Mara on the picture.

  • 0
    0

    The short answer is that they are not interested. Do not waste your time. Bensen

  • 0
    0

    People are only interested in obtaining a Certificate of Birth and a Certificate of Death and may also be in obtaining a National ID. For other matter matters Law of the Jungle is applied because the practice “if so and so can do others can also do it” is the accepted norm.

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