Our consciences and the defence of the rule of law

| by Shanie

"The piously belligerent army of Hindu politics would rather take us away from engagingly thoughtful discussions and would have us embrace instead their much-repeated public proclamations, for example that Rama, the epic hero, is an incarnation of God; that all Hindus worship him; and that he was born on a well identified plot 900,000 years ago. We are thus not allowed to see the Ramayana as ‘a marvellous parable’ (as Rabindranath Tagore saw it) but as a historical document which cannot be questioned. It is also taken to have enough legal status to give actively destructive Hindu politicians a licence to tear down a place of worship of other people to build a temple to Rama,in celebration of his alleged birth exactly there."

(September 17, Colombo, Sri Lanka Guardian) In 1992, a mob of Hindutva fanatics destroyed the Babri mosque in Ayodhya,India claiming that it was built on the sacred spot of Rama’s birthplace. Many liberal minded Indians condemned that action but were unable to reverse the action of the mob who not only took the law into their own hands but also instilled feelings of deep hurt and insecurity in a religious minority. The critical comments quoted above are from Nobel Laureate Professor Amartya Sen’s thoughtful collection of essays ‘The Argumentative Indian’ published a few years ago.

In Sri Lanka too, we had a spate of attacks on churches some years ago led by mobs, which unfortunately included some men in the robes of Buddhist monks. Many Sri Lankans of all religious persuasions condemned those attacks but like in Ayodhya, nothing was done either to prosecute the perpetrators or to help the churches re-build. Now, with the current nationalist resurgence, are we going to witness another spate of attacks on places of worship of the religious minorities? A website reported this week of the destruction of a Muslim place of worship in Anuradhapura claiming that the mosque was built on the site where the ashes of Dutugemunu were interred. Quite apart from the accuracy of the identification of the site as the exact spot at which Dutugemunu’s ashes were interred (archaeologists even differ as to the significance of the Dakkhina Stupa), are we to allow mobs to dictate on issues of such a sensitive nature? The report on the website included pictures of the mob at work and also one of a large contingent of Police standing by. We do not know if the Police arrived on the scene before or after the destruction, but it does not appear as if any arrests were made. It is also sad to note that none of the mainline newspapers have carried reports either confirming or denying the accuracy of this mob attack.

The mob had claimed that the mosque had been constructed illegally. But if there was in fact illegality in this, then the rule of law should apply. Mobs cannot and must not be allowed to take over the functions of the guardians of the law. Unfortunately, this seems to be the developing trend in Sri Lanka. Also this week, we had the news of some devotees planning to go ahead with the abhorrent practice of animal sacrifice in a kovil in Chilaw. This ritual of animal sacrifice does violence to the ethics of all religions but no one, neither clowns nor ministers or both, have a right to take the law into their own hands, as the mobs in Ayodhya and Anuradhapura have done. The same mob leader is reported to have earlier gone around with mobs demolishing parapet walls of private properties in Kiribathgoda, a la the beautification process of the Colombo city. The latest instance of this man taking the law into his own hands is the reported closure of beef stalls and banning the sale of beef in the Gampaha District. It is reported that the actions of this mobster have the nod or acquiescence if his political masters. If so, it is a sad commentary on the standards of governance in our country.

Problems of Justice and Rights

Kishali Pinto Jayawardene of the Law and Society Trust recently addressed the annual general meeting of the Citizen’s Movement for Good Governance on the subject of the serious deficit of the rule of law in our country. She was to point out that it would be a mistake to regard today’s problems of justice, rights and the rule of law as purely being the result of the current political environment. These problems may have reached a new low now, but it is a process that began much earlier. Post independence framers of our constitutions, she said, suffered from a deep-rooted distrust of giving practical effect to the rule of law and the idea of justice. The 1972 Constitution ‘subordinated the judiciary and only superficially embodied a Bill of Rights while declining to give the Supreme Court explicit jurisdiction over the determination of violations’. The 1978 Constitution ‘entrenched the concept of an all powerful executive President whose actions were virtually above the law, besides (in a most absurd paradox) omitting the right to life but inflicting a constitutional rights chapter with procedural restrictions that diminished those very rights.’ The eighteenth amendment was the culmination of this process.

Pinto Jayawardene rightly says that the defeat of the rule of law has been systematically achieved not by small or petty minds but by some of the sharpest minds of that time. This remains our tragedy. Then as now, it is the men and women most learned in the law who ironically act most in violation of truth and justice.

Political figures found guilty of or charged with crimes including murder have received a pardon or the Attorney General withdraws the cases allowing the accused to go free. This intervention by the Attorney-General has also reportedly been used to entice opposition politicians facing criminal charges to switch their allegiance to the government. One hopes that there will be some Judge who will question such actions by the Attorney General and ask for reasons why a discharge is being sought. We now have a new Attorney General and let us hope that she will restore the reputation for professionalism and integrity that her Department has enjoyed over the years.

Protecting the Vulnerable

But it is not only public officers who have a responsibility to ensure adherence to the rule of law and for the protection of justice. The ordinary citizen who has a commitment towards justice will find himself, too, vulnerable to the powerful who enjoy political patronage. Civil society and religious leaders therefore have a clear duty to provide the necessary leadership to the weak and the vulnerable to obtain justice and to defend the rule of law in the country. Both in the past and the present, we have had such leaders but sadly they have been far too few. We remember with gratitude men and women of courage like Bishop Lakshman Wickremesinghe, Professor Ediriweera Sarachchandra, S Nadesan, K Kanthasamy, Regi Siriwardena, Rajini Thiranagama, the Revd Soma Perera and H. L. de Silva, who would not compromise their principles and commitment to justice and the rule of law at the altar of political expediency. Some of them paid with their lives for this commitment; some suffered political harassment. But they never wavered. Today, more than ever before, we need such leaders.

Seven years ago, Kofi Annan, then Secretary General, addressing the UN General Assembly stated the rule of law started at home. ‘But in too many places it remains elusive. Hatred, corruption and exclusion go without redress. The vulnerable lack effective recourse and the powerful manipulate laws to retain power and accumulate wealth. At times, even the necessary fight against terrorism is allowed to encroach unnecessarily on civil liberties.’ He went on say that the victims of violence and injustice notice when words are used merely to mask inaction. They notice when laws that should protect them are not applied. He said that the rule of law could be restored and extended but ultimately that would depend on the hold that it had on our consciences. We needed to look into our collective consciences and ask ourselves whether we were doing enough. Each generation, he concluded, has its part to play in the age old struggle to strengthen the rule of law for all – which alone can guarantee freedom for all. Let our generation not be found wanting.’

The Police and the Rule of Law

Yes, Kofi Annan’s comment is very apt. Are we doing enough to strengthen the rule of law in our country. Almost daily, we have reports of abuse of the rule of law by the very agencies that are expected to enforce it. This week there were reports of the Ja-Ela Police being complicit in the physical harassment of a young man who possibly had an altercation in a shop owned by a wealthy businessman of the area. Also this week, a case has been reported where the Police in the Deniyaya area have physically assaulted two brothers and filed charges against because they had apparently challenged two Police officers. Yet another report is from Kekirawa where a young man who again challenged the Police was beaten up and compelled to sign a confession that he was manufacturing illicit liquor. The actual manufacturer and distributor of illicit liquor in the area apparently enjoys Police protection. These reported cases need further investigation. Complaints about many of them have reportedly been lodged with the Human Rights Commission but, whether it is lack of resources or some other reason, such complaints take an inordinate length of time to be completed.

The new Inspector General of Police is reportedly in the process of re-structuring the Police Department. This has been long overdue, for the Police Department needs to regain its lost image. Only this week, the country mourned the death of Cyril Herath, a former Inspector General. He was an upright officer who sent in his papers for pre-mature retirement after he was over-ruled in the matter of Police promotions. The political Head of State had wanted a junior Police officer to be promoted to the rank of a Deputy Inspector General over the heads of several senior officers. Herath declined to comply. We hope IG Illangakoon’s re-structuring programme will produce Police officers of the calibre of Cyril Herath who will, despite temporary setbacks in their career, display the integrity and professionalism for which the Department was known in past years.