Rule of Law has no place for a corrosive mindset

Justice is a relative term; it is perhaps realistic to accept that there is no place in this world where the dispensation of justice can be said to be perfect.  Yet, granting that the application of the rule of law is always in a deficit position, it is still imperative to ensure that as far as possible justice is not only done but must seem to be done as ‘justifiably’ as possible.

Within the parameters – that by definition there will always be a shortfall in absolute terms in the execution of justice and the compulsion that justice need to be meted out to those seeking redress – a fine balance must be maintained for fair play. 

Under circumstances of an ‘imperfect situation’ what makes for an orderly society is, when the rule of law is made the pivot on which freedoms are strengthened and strategized and regulatory systems and institutions that guarantee the supremacy of the law to all individuals, the powerful and the weak are strictly enforced. In the implementation of justice, the crucial feature to be emphasized, is that, more than all the instrumentalities promoted to deliver justice to people (even when played along as conceptualized), it is the sensitivity to the concept of justice and the need to be responsive to a sense of fairness in the delivery of justice that should form the crux of the core or the essence of justice, and not just the strict adherence to the letter of the law.  In brief, it is necessary to have the law interpreted in the actual contextual situations “comfortable with universal human rights…. susceptible to consistent modernization, simplification and reform’.

The strict enforcement of the Rule of Law that make certain that order and peace in society is maintained requires clear set of laws, with established procedures, recognized in legal parlance as due process, with well entrenched institutions to enforce the law and an independent judiciary based on the principle of separation of powers, of the Legislature, the Executive and the Judiciary.  This would secure for the people a society governed by laws and not one by fallible men/women of influence, be they powerful politicians, administrators, or economically powerful individuals/ groups or the underworld mafia fattened with ill-gotten financial power and equipped with ‘arms muscle’.

Justice as fairness in Sri Lanka

Sri Lanka for a long time had to grapple with concerns over justice as fairness in the judicial process.  Governments from time to time since independence, have acted in a prejudicial manner in the enforcement of the laws in terms of accountability to the system of justice.  Beginning with the disenfranchisement of sections of the Indian Tamils in 1948 to the introduction of the Sinhala Only Act in 1956 there have been series of actions that created conditions that contributed to disharmony and when compounded resulted later in violent conflict.  The 1972 autochthonous constitution brought about the active politicization of the governance process. It did away with any ‘implicit or explicit separation of powers.  The National State Assembly became the repository of the sovereignty of the people and was meant to be the “organic unity of the three aspects of power”, “residual source of all power and authority”.   The removal of section 29, the introduction of retroactive legislation, the removal of the Public Service Commission and the Judicial Service Commission, the introduction of the ‘chit system’ for job recruitment denied the application of meritocracy and justified a partisan process, the constraints on the media and the creation of the press council all of which contributed to the disabling of the fairness concept in the administration of justice.  The autochthonous constitution or the home grown effort did not predicate an accountable, judicial process.  This was the beginning of the slide down  while many other factors contributed to the quickening of the dip in the process.  The high level in unemployment as a result of slow economic growth and the mismatch in the system of education and job availability were instrumental in provoking the first violent challenge to the government elected in 1970, and the need to quell it, introduced the culture of violence by both the State and the non- state actors, which has become an entrenched feature in the system of governance by all the governments that followed.  In addition to this, the shortsighted policy on the ethnic issue complicated matters further. The Dharmista society, the call of the 1977 government became a hollow call from the time ethnic minorities and trade unions became targets for attack by political elements that formed a part of the establishment at the time.  In such a context, where unrest, personal, communal and societal become widespread and remains without resolution the first casualty is the distorted application of the rule of law.

Laws may be available but that is not sufficient to safeguard the interests of the people.  The interpretation of the rule of law must encompass not merely the letter of the law but the wider compass of protection of the minorities, of the poor and the most vulnerable elements in society, such as the low income groups who do not have the financial or other support systems to fortify them to seek justice to rectify their grievances. 

The Hon Michael Kirby AC CMG stated in one of his articles that he has observed through experience that “the World Cup, the latest cricket scores and the current movies, books and songs are more likely to be on the lips of citizens at work and at play.  The rule of law does not come up very often in  popular discourse amongst fellow citizens.” Obviously, the law and order situation has become much more terse in this country that questions on the lack of law and order and the issue of impunity, the absence of police protection, abuse of political power, corruption, the partial application of the law that protects the politically powerful and the rich from the invasive reach of the law, have become popular discussion points not as questions of polemics but as practical matters that impinge on the security of individual citizens.

When reference is made to kidnappings, to disappearances, to the white van menace, to the grease yakka syndrome (mercifully out of sight now) it is not as if every second person is directly affected by such occurrences. When even one such incident happens in a village or town the ripple effect of the enveloping insecurity is constricting, so much so that people tend to feel the impact of one as if it is of many and feel totally engulfed in fear.  It has indeed happened in far too many cases where victims have been left without police intervention to support the ‘vulnerable’ persons in society.  Such indifference creates the space for the culture of impunity to grow and destroy the entitlement of the people for a peaceful lifestyle. This is perhaps what Mr. Pallihakara as chair at H.L. de Silva’s memorial lecture meant when he referred to the challenges that are “explicitly or implicitly derived from an increasingly and embarrassingly visible rule of law deficit…..”.  (emphasis is mine)

Rules drawn by the International Bar Association -2009

In a resolution of the International Bar Association (2009)  a few sub-rules implicit in the concept of the ‘rule of law’ were given  – the rational and proportionate approach of punishment of those who are convicted of crimes; the absence of arbitrary arrests and secret trials; the absence of indefinite detention without trial; the exclusion of cruel and degrading treatment or punishment; the absence of intimidation and corruption both in the electoral process and in judicial and other adjudicative decision – making ; the conduct of governance in society through open and transparent institutions and procedures, with freedom of information, opinion and expression- as prerequisites to the operation of all the aforegoing characteristics.

It would seem that on many of these counts Sri Lanka can be held culpable. That we do not let go of the past has been our biggest default line. Even for a criminal there is a chance when he gets out after serving his term to be recognized as a free man and be counted as an equal to any other.  If we can adopt this line of thinking much of our problems will be resolved.  For example in the case of the LTTE detainees, perhaps among those detained there is likely to be one or more bad eggs who may have the potential to create trouble but then such cases must be looked upon as a fresh incident and tackled accordingly.  The rest cannot be penalized and held guilty permanently.  Trust must be offered to beget trust.  Justice must be rendered to bring everyone into the fold.

‘Redressable injustice’

Amartya Sen refers to ‘redressable  injustice’ as something that “ animates us to think about justice and injustice”and considers it…..“ central …. to the theory of justice.”  The basis for a just society according to him is  “…. clear articulation and reasoned scrutiny”.   The Sri Lankan scenario is not beyond repair, it merely needs people who speak the truth fearlessly and those who will listen to reason and act fearlessly. This is not a situation that calls for finger pointing to score points for hidden agendas, obvious or not so obvious ones.   To rectify the situation it is necessary to investigate the circumstances that have gone somewhat ‘rotten’ and apply correctives to put things in order.  That should be the raison d’etre  for showing up the defects in the law and order situation.

Sri Lanka and the UNHRC

The country has earned the opprobrium of the international community by persisting on having a mindset on issues that could easily be resolved and should have been resolved years ago.  The resolution adopted in Geneva at the UNHRC sanctioning inaction by the government and calling Sri Lanka to “credibly investigate the allegations of violations of international humanitarian laws committed by Sri Lanka during its armed conflict with Tamil Tiger terrorists” cannot be wished away. Three years have lapsed since the end of the war and it is considered vital that a “roadmap for lasting national reconciliation and accountability” be adopted.  The resolution calls for a comprehensive action plan for the implementation of the LLRC recommendations where “alleged violations of international law” will be brought under scrutiny. 

It is the widely held contention that had the government dealt with the reconciliation process as a priority issue on the termination of the war Sri Lanka would not have been subjected to some of these challenges.  When it seemed apparent that development was made interchangeable with devolution for the resolution of the ethnic conflict, it became clear that once again Sri Lanka was veering towards a process that could not be justified in terms of decisions tempered with wisdom. Once again a ‘default’ situation surfaced in the approach as a representation in line with historical continuity (of faulty decision making).  Justice is denied once again as a calculated choice made in terms of a persistent, non- erasable mindset of the post ’56 period.

Post –war tiger scenario

Fears that there can be a replay of the terrorist movement is over exaggerated.  A rump of the once powerful tiger movement cannot have an impact on the Sri Lankan Tamils. It is more than unlikely that there will be any takers to go through the trials and horrors of the 30 years, yet again.  Those espousing the tiger phantom, the cause of Eelam, in the comfort of being cushioned with tiger funds, living away from the scene of conflict, far removed from any consequences of their actions cannot and should not be taken seriously.  They will remain unheard of if the media for reasons best known to them do not blow up every statement made by this group and give them the sound bites that would otherwise be confined to  miniscule numbers abroad.  They will wither away or become with passage of time irrelevant. The option presented to them at the end of the war was to invest in the war torn areas to fill the needs of the people in housing, farming, education, IT., skill training for self-  employment, the war widows crying for help, counseling for trauma cases, disabled individuals, in fact serve the cause of all the distraught  population in these areas.

Certainly the situation can change if these vulnerable sections of the population are not given a hearing, are subject to intimidations outside the pale of the laws of the country, are denied democratically elected  representation (eg.Provincial Councils) vide the Constitution of Sri Lanka, and their political leaders and laymen vilified as tigers and traitors even when they continue to make categorical statements in favour of a unitary state and have gone the extra mile by hoisting the national flag as a gesture towards national unity.  Serious thinking in terms of rapproachment uncluttered by the inhibitions of the political past will deliver justice to the continuing imbroglio where a section of the country is subject to ‘surveillance’ which the rest of the country is free from.  Justice cannot be said to prevail if this situation persists.

The imbalance in reckoning accountability

In terms of accountability none has raised the issue of rights violations by the tigers against their own community as well as the rest of the country. The fact that they eliminated the cream of the political leadership in this country including the influential political leaders of the Tamil community in whose name political parties still gather their vote base, are unpardonable acts committed against national interest.  It behoves of the international authorities dealing with violations of humanitarian laws to take note of this factor as well.  This would be another aspect in the delivery of justice to the Sri Lankans.

Justiciable process

If justice is administered to the letter and spirit of the word much of the shortfall in the present situation can be eliminated. People need to be protected from the “provisions of over-wide discretions given to officials; from the removal of equality among citizens; from the imposition of differential treatment based upon political and other beliefs; from a departure from the fundamental human rights to free expression and free association; from an excessive deployment of public power; and from the attempt to exclude crucial decisions affecting the lives of citizens of free citizens from the independent and impartial courts”.   A judicious interpretation and adherence to the implications in the areas referred to in the above quotation will make all the citizens of this country cohabit as free individuals within a just society; a society under the rule of law.