The rule of law must be rooted in our political culture and value systems

| by Shanie

"How the mighty have fallen in the midst of battle!

O Jonathan, thou wast slain in thine high places.

I am distressed for thee, my brother Jonathan; very pleasant hast thou been unto me;

thy love to me was wonderful, passing the love of women.

How are the mighty fallen, and the weapons of war perished!"

- II Samuel 1. 25-27 (The King James Bible 1611) quoted in New Poems on tXhe Underground 2006 Gerard Benson, Judith Chernaik & Cecily Herbert

 ( November 17, 2012, Colombo, Sri Lanka Guardian) In recent months, the government of Mahinda Rajapaksa has been lurching from one crisis to another. Each of these has been brought about by self-inflicted wounds. The unprecedented trade union action by the university teachers could have been avoided had those responsible for higher education shown a willingness to listen and displayed less arrogance. But lessons have not been learnt. It required intervention from outside the higher education sector to arrive at a compromise that was acceptable to the University teachers. Now those solemn agreements remain unimplemented and another and a bigger crisis looms. Also in the education sector, two batches of post-AL students still await admission to universities, as result of the fiasco over z-scores. This also could have been resolved months earlier had the University Grants Commission and the Minister been willing to listen to criticism of the manner in which z-scores were computed and arrive at a formula that would not have adversely affected the students. Once again, it was sheer arrogance that led to that crisis. The third crisis in the education sector pertains to the grievances of school teachers. The Minister of Education and his bureaucrats seem to be following the disastrous example of their colleagues in the Higher Education sector hoping that by ignoring and refusing to negotiate the demands of the teachers with their trade unions, the problems will go away. Predictably, the result is going to be the same. A strike in all schools next month by principals and teachers has just been announced.

Prison disturbances

A crisis with tragic consequences was played out at the Welikada Prison last week. The explanation given by the Prison authorities on the incident lacks credibility. A Prison that houses convicts should be a secure place. Yet hundreds of the convicts were able to break out of their cells and some even to escape out of the gates. What is worse, even the Armoury was broken into with the prisoners having access to a wide range of firearms, some of which are reported to be still missing. Unable or unwilling to quell the disturbances, the Prison authorities called in the security forces and the STF to control the situation. This resulted in shootings that led to an unacceptable number of deaths. The final tally of deaths was Prisoners – 27; Others – 0. This lop-sided statistic raises questions. Did someone overreact and fire indiscriminately to control the disturbance. Only an independent judicial inquiry - a Public Commission of Inquiry headed by a retired senior Judge can establish the truth. Prisoners, even convicted criminals, are entitled to basic human rights, to the right of life.

Now the government is pinning itself into a corner thanks to its attempt to impeach the Chief Justice. It was pique at a recent Supreme Court determination that has led to this; arrogance and blatant abuse of power may push the government to go through this charade but the nation and the world will know that there has been a blatant abuse of a parliamentary majority to intimidate the judiciary.

Now comes the bizarre suggestion reportedly from the current Commissioner General of Prisons that Department of Prisons should be placed under the Ministry of Defence. The Commissioner General has issued a statement denying that such a suggestion was mooted by him. He may be right but it does seem that someone is engaged in kite flying to test the waters for implementing such a proposal. Karu Jayasuriya is quite right in saying that Prisons come under the Defence administration only in a dictatorial or authoritarian setup, not in a democracy. Is the failure of the Prisons Department to prevent such a tragic incident being used to consolidate bringing yet another key area under the Defence administration?

Jayasuriya questioning this move to bring the Prisons under the Defence Ministry is a valid one. In a democracy, even the Police are a civilian function and should not come under the Defence Ministry. But here, the Defence Ministry seems to be acquiring civilian departments also under its wing. This is not a healthy development for good governance and should be resisted. Concentration of too much power under a single Ministry will lead to authoritarianism.

The impeachment saga

Now the government is pinning itself into a corner thanks to its attempt to impeach the Chief Justice. It was pique at a recent Supreme Court determination that has led to this; arrogance and blatant abuse of power may push the government to go through this charade but the nation and the world will know that there has been a blatant abuse of a parliamentary majority to intimidate the judiciary.

One of the cardinal principles of democratic governance is the separation of powers between the three arms of the government – the executive, the legislature and the judiciary. If this separation becomes blurred, it will lead invariably to a flawed state. In 1983, Justice Raja Wanasundera delivered a landmark jud ment in the Ceylon Daily News contempt case which was heard before a five bench Court. All five judges agreed with the judgment. Justice Wanasundera stated:

"The people in the exercise of their franchise now elect the President (who is the head of the Executive) and also Parliament by direct elections. These two elected representatives of the therefore exercise the powers of Government by virtue of a mandate periodically given by the People.…..

"How does the judicature stand in this matter? Even a cursory glance at the Constitution is sufficient to indicate that there are features in the Judicature and the Administration of Justice which distinguish the courts and Judges from other organs of government and other public officers. Mr Nadesan (the senior counsel who appeared in that case) invited our attention in this connection to the Preamble to the Constitution which is a concise statement of its genesis.

Justice and independence of the judiciary

"The Preamble recites the Mandate given by the People to the founding fathers of the Constitution. It assures to all peoples, FREEDOM, EQUALITY, JUSTICE, FUNAMENTAL HUMAN RIGHTS and the INDEPENDENCE OF THE JUDICIARY as the intangible heritage that guarantees the dignity and well being of succeeding generations of the people of Sri Lanka. These principles constitute the basic fundamental rights of the people and were thought by the people to be so valuable and sacrosanct that they enshrined it in the mandate and repeated it in bold type in the Preamble. It is significant that both ‘Justice’ and ‘Independence of the Judiciary’ are given particular emphasis and Nadesan said that, as far as he was aware, in no other Constitution is the independence of the judiciary emphasized to this degree or given that importance.

"When we next examine the body of the Constitution, we see that aspirations of the people for an independent judiciary are given precise legal form and effect. Article 4 (C) states that the ‘the judicial power of the people shall be exercised by the Parliament through courts, tribunals and institutions created and established, or recognized, the by the Constitution, or created and established by the law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its members, wherein the judicial power of the people may be exercised directly by the Parliament according to law.

"On a plain reading of this provision, it is clear that the judicial power of the people can only be exercised by "judicial powers" as defined in Article 170, except in regard to matters relating to the privileges, immunities and powers of Parliament. I think no counsel before us disputed that these provisions indicate an unmistakable vesting of the judicial power of the People in the judiciary established by or under the Constitution and the Parliament acts as a conduit through which the judicial power of the people passes to the judiciary. Whatever the wording of Article 4(C) may suggest, there could be little doubt that at the lowest this provision, read with the other provisions, has brought about a functional separation of the judicial power from the other powers in our Constitution and accordingly the domain of the judicial power (except the special area carved out for Parliament), has been entrusted solely and exclusively to the judiciary." It is therefore clear that neither Parliament nor any Parliamentary Select Committee can exercise judicial power, which is vested solely with the Judiciary.

The absence of ‘rights consciousness’

In the Kodagoda Memorial Oration delivered earlier this year, Jayampathy Wickremaratne PC spoke about the importance of upholding human rights in a democracy. Developing countries like Sri Lanka, he said, had a number of features such as a weak democracy, centralized State power, a weak judiciary sometimes coming under executive pressure as well, near-absence of pressure groups, infringements of constitutional guarantees and, very importantly, the absence of a "rights-consciousness", all of which constrain the operation of fundamental rights. In some countries, there is authoritarian rule behind a façade of democracy. Rights would be sustained only if rooted in an enabling political culture.

The mere declaration of fundamental rights in a Constitution and becoming a party to treaties do not ensure their enforcement and guarantee respect to them. The external environment should be conducive to the protection and advancement of rights. A democratic tradition and a dynamic political environment are essential. This exactly is the problem of developing countries. We do not have a healthy democratic tradition. There is a marked trend towards authoritarianism. This is seen by the number of virtual one-party states, dictatorships and authoritarian regimes. This is a fundamental problem in developing countries. These problems are compounded by factors such as ethnic and religious violence, terrorism and political assassinations. The State’s response has been the use of emergency powers and in some cases, State terrorism. Long periods of a state of emergency are seen. This gives rise to a situation where restriction of rights by the State is the rule and enforcement of rights against the State becomes the exception. Wickremaratne quite rightly concluded that the result of all this was a near absence of a "rights consciousness" in developing countries. It was essential that such a rights consciousness be a part of the value system.