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| The law functions through institutions and the implementation of the law depends on these institutions. The very political system of the government as well as the entire civil service and the institutions of the administration of justice such as the police, the judiciary and the prosecution system are based on these legal foundations. |
by Basil Fernando
(April 20, Hong Kong, Sri Lanka Guardian) Can there be development in the modern context without law? This is a relevant question in today’s context where is lot of talk of development on one hand but where there is lawlessness in the country. Can development and lawlessness co-exist?
In answering this question it is better to have a glance at the 19th Century, as the modern economy and law both started during this time. Sri Lanka’s modernization began during this century when it was a British colony.
The importance of the 19th Century for Britain and Sri Lanka
The 19th Century was important, not only for Sri Lanka but Britain as well. Historians record the 19th Century as Britain's age of legal reforms. The situation of Britain at the beginning of the 19th Century and at the close of the century was quite different. Enormous change had taken place in every area of life and the medium of such change was though the laws. Legal reforms in the area of criminal justice changed what appears to be primitive and even the barbarous practices that existed in Britain itself at the beginning of the century. The overall control of the administration of justice system was in the hands of those most powerful and the laws had not yet developed in order to control the violence exerted by the powerful on those who had little or no power. The streets in London were dangerous places where a gentleman would often carry arms for their defense as there was no credible policing system that was able to protect the citizenry. For many offenses including petty theft the punishment was death. There were about 200 such offenses in the country at the beginning of the 19th Century. Hence the expression: you may as well be hung for a sheep as a lamb. This framework of criminal justice was changed with huge reforms that brought in the type of legal system that now exists.
As there were no legal educational institutions in the country at the beginning of the 19th Century the legal profession itself was in the hands of a very few persons. Gradually, teaching institutions were created in the manner in which they exist today and teaching the law became a normal practice. Enormous changes took place in the laws relating to marriage, matrimonial rights and the rights of women to property. There were also changes in international law.
Institutional development
The institutions we know of today as British institutions relating to the administration of justice, policing, the prosecution system and judicial institutions were perfected during this period. These changes were a result of attitudes brought through various movements which had the capacity to influence legislation and to provide the necessary changes in the provision of budgets for the administration of justice.
In the 19th Century, Sri Lanka through its various colonial administrators received the benefit of these changes in law and the country's modern legal system was shaped around the best developments that happened during this time. In all areas of the economy, administration and social life Sri Lanka was reshaped into the form in which it exists today. The basics needed in terms of modern development in the economy and the administration was imparted during this time. Not only was the law introduced but also proper training in various professions such as judges, lawyers and civil administrators was also developed. The basic structural foundation of Sri Lanka as a modern state is therefore rooted in the legal tradition which was imparted during that time as the country absorbed the best developments that had taken place within Britain in the 19th Century.
In the midst of such change the basic notions of constitutionality were introduced to Sri Lanka. It was a gradual process which continued and came to fruition in the 20th Century. All the notions of representative government which developed during this period in Britain and the western world were incorporated into the Sri Lankan system. It is this system that provides the backbone for the economy, and for the protection of property and the individual rights within the country.
The protection of all commercial, trade and production activities, if it is to be geared for development needs to be worked within the framework of the law. If this does not take place within the framework of the law it creates chaos, conflict and results in unrest and insecurity.
The 1978 Constitution and the diminishment of the law in Sri Lanka
However, by a change that was brought about in 1978, J.R. Jayewardene, the first president of Sri Lanka endangered this entire legal structure. His ambitions were of a narrower nature aimed particularly towards his own self protection and the actual changes brought about by the Constitution affected all the aspects of the economic and social structure in Sri Lanka. The law as it was founded in the 19th Century and developed in the 20th Century cannot effectively function within the framework of the fundamental changes in the law which was brought about by the 1978 Constitution. Thus, what this constitution endangered was the entire legal foundation of Sri Lanka as a modern nation.
It is the legal framework of the country that protects the property rights of the state as much as private property rights. Property relationships are founded on legal notions and the laws brought about by legislation. When the legal foundation of a country is threatened then the very foundation of property rights within this country faces a serious tsunami. Today, all property laws are shaken by fundamental changes from within the political framework and therefore enormous chaos in terms of property ownership is today part of Sri Lankan life. The more the foundation of the law brought within the 19th Century is rejected the deeper also will be the societal crises within Sri Lanka which are also shaped by laws relating to the implement of the law itself.
The law functions through institutions and the implementation of the law depends on these institutions. The very political system of the government as well as the entire civil service and the institutions of the administration of justice such as the police, the judiciary and the prosecution system are based on these legal foundations. The constitutional crisis which started in 1978 has now reached into all aspects of institutional life and this is a fact on which there is no controversy.
Previously the 17th Amendment to the Constitution was brought about in order to attend to this problem even in a small way. The recognition of the crises in all civil institutions was a realisation that dawned on the minds of the people about the loss of the legal foundations of their country.
State property as well as private property is today in serious crisis as there is no solid legal foundation to give the necessary stability in the implementation of laws relating to property. That same crisis has spread into the rights of the individual. When there is confusion about property rights it sinks into the other rights including the individual rights of people.
The loss of the effectiveness of habeas corpus and writs
Recent studies show that habeas corpus, a fundamental remedy, is no longer a realisable remedy within Sri Lanka. This applies to all other writs and legal remedies. When the law is in crisis legal institutions cannot help but feel the pressure of that crisis. The crisis of law is like a nuclear reactor that goes out of control and allows radiation to enter the atmosphere. Today Sri Lanka is faced with this enormous crisis. There has not yet been any strong attempt by the country's intelligentsia, legislature or middle class to deal with these problems. The crisis of the law has affected other areas such as the trade union movement and the avenues for free press.
The destruction of the free press has removed the possibility for Sri Lanka to remain within the framework of the law and to reflect that crises. The silence imposed on discussion led to degenerated writings and talks in parliament and engagement in any serious debate becomes an unfamiliar aspect of life of society. This has already happened. The result is that dispute settlement descends into violence.
The use of piano wire as burglar alarms
Today all over the country there are complaints of robberies and the women have even changed their habit of wearing jewelry out of fear of violent theft. In many parts of the country people organise themselves so as to guard their areas at night because of the increase in crime. The fact that the police cannot deal with this matter due to its own crisis is too well known to require any explanation here. Fear of theft is so common now in middle class and upper class families that the use of piano wire as burglar alarms has become a common habit.
The country has descended to the type of crises that countries like England faced in the period prior to the 19th Century. A modern nation that lives in the midst of such a crisis cannot aspire to development purely on the basis of various external enterprises which gives the appearance of economic activity. Within this economic activity, if there is no guidance from the law there simply has to be all kinds of problems and crises which do not provide the kind of stability needed for economic activity. Therefore if Sri Lanka is to enter the path of development it is essential that the country faces this legal crisis. Development without law is simply an illusion within the modern context. It is not only an illusion but a dangerous exercise for the government as well as for the people. Within any discussion on putting the country back on a modern path which is capable of engaging in modern economic activities such as commerce, trade and social development the crisis of the law should be addressed as one of the most important aspects of development.
Law and development -- threat to the security of property and individual rights
In the modern context development is intertwined with the progress of the law. Development and the law are inseparable. In modern society, trade, commerce and all sections associated with those two areas of economic life depends on the very complex notion of law. These legal notions are incorporated into the law of a country by legislation. The entire framework of a reference in development in all areas relating to banking and all financial transactions are possible only within the framework of the law (the serious fraudulent action of deposit taking companies that prey on the people which was exposed in recent times provides a glimpse of this insecurity). This framework of law can only exist within the broader framework of the legal system of the country. Within that legal system the constitutional law, the criminal law and the civil law form the foundations.
The constitution is the foundation of all and it is the constitution that gives the framework of meanings to the other laws that exist within the country.
It can be said that Sri Lanka really entered the modern age in terms of economic transactions only in the 19th Century. The entire organisation of society in terms of administration which is geared towards the development of all the enterprises within the country happened during that century. This was mainly due to Sri Lanka being a colony under the British. The previous colonial powers introduced aspects of the law which persist even today, for example the area of the lands as well as a few other areas in civil law. However, Sri Lanka became a law-based society only in the 19th Century. It is necessary therefore, to understand what happened to Sri Lanka from the point of view of the overall organisation on the basis of law during this century.
The fact that this organisation of society on the basis of law happened under a colonial occupation does not take away the importance of the transformation which took place within Sri Lanka as a modern nation in the 19th Century. Many nations have entered the modern age through various historical experiences. In such experiences the law and colonialism both played their parts. Despite of all the antagonism that may exist due to the brutal exploitation by a foreign occupier during this time and the cruelties which were associated with this expropriation, the overall achievement of the country as a modern nation with structures of administration cannot be denied.
( W.J. Basil Fernando is a Sri Lankan born jurist, author, poet, human rights activist, editor. He can be reached at basil.fernando@ahrc.asia)
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