Rulers destroy themselves by not adhering to the Rule of Law

   | by Shanie

"One day we will get them – we’ll get them – we’ll get them on the ground where we want them. And we’ll stick our heels in, step on them hard and twist….crush them, show no mercy."

President Richard Nixon, 18 May 1971

"Anyone who opposes us we’ll destroy. As a matter of fact, anyone who doesn’t support us, we’ll destroy."  - Egil ‘Bud’ Krogh of President Nixon’s Special Investigations Unit, 27 July 1971

( December 15, 2012, Colombo, Sri Lanka Guardian) Francis Wheen, author journalist and Guardian’s columnist, has written a fascinating and hugely entertaining book ‘Strange Days Indeed – The Golden Age of Paranoia’ about the foibles and madness that infected the world’s leading political figures in the nineteen seventies. The list of rulers of that decade who are dissected by Wheen in his book includes President Idi Amin, but the pride of place for suicidal idiosyncrasies has to go to President Richard Nixon, whose erratic actions led to his own downfall. The statement quoted above was made by Nixon aboard the Presidential yacht Sequoia where a small group had gathered for dinner. Ample liquid refreshments flowed and Nixon, according to Wheen delivered a soliloquy on the subject that obsessed him – his enemies. This incident took place a year before Nixon’s re-election which he easily won securing over 60% of the popular vote. But his re-election bid was marked by dirty tricks, which included a break-in at his opponent’s offices at the Watergate complex to steal documents. Nixon pleaded innocence but his personal involvement in these dirty tricks was exposed and he faced certain impeachment and conviction. He opted to resign in 1974: many of the senior figures in his administration were convicted and served jail terms. Among those convicted and who served a jail term was Nixon’s special counsel Chuck Colson. On his release from prison, a chastened Colson was to refer to that evening on board the Presidential yacht in 1971 and say: "The seeds of destruction were by now already sown - not in them but in us. A holy war was declared against the enemy.....They who differed from us, whatever their motives, must be vanquished."

Idi Amin

Nixon’s paranoia about those who differed from him and his determination to crush them happened forty years ago. It only ended up in his disgrace and resignation from the office of President of the United States. But many of the 116 worthy Members of Parliament who have now signed the impeachment motion against Sri Lanka’s Chief Justice (apparently in blank without knowing what the charges were) are old enough to know what happened to the world’s most powerful President then. Certainly the seven members of the Speaker-appointed Parliamentary Select Committee who found the Chief Justice guilty of three charges would not only have been aware of the circumstances that led to the disgrace of the then US President but also should be aware that Nixon’s resignation was forced on him because his cronies in the administration failed to advise him that the rule of law must prevail and that undertaking any illegal actions and injustice to opponents will be counter-productive.

The Rule of Law

Retired Justice Christie Weeramantry is a much respected international jurist who has served with distinction as a Judge in Sri Lanka and many other countries, including the International Court of Justice in The Hague. This week he has added his voice to the many independent voices that have been expressed calling for the adherence to the rule of law in the present crisis situation in Sri Lanka. He has said that there can be no democracy in a country unless the rule of law prevails at every level from the humblest to the most exalted citizen. He lists four principles that are universally accepted as being fundamental to the rule of law:

1. The rule of law is not present unless a fair hearing is available to every citizen who is called upon to defend himself or herself before a tribunal on a matter affecting his or her rights.

2. There cannot be a fair hearing unless the tribunal is totally and patently impartial. It is essential that a tribunal deciding on the rights of any citizen must consist of persons who are totally uncommitted before the hearing to any conclusion on the matter.

3. If any members of the tribunal have directly or indirectly indicated their views upon the matter in advance of the hearing that tribunal ceases to be impartial. It follows that such a tribunal is not functioning according to the rule of law.

4. The rule of law demands that every person investigated by a tribunal has a right;

a. to be informed of the charges

b. to know the evidence against him or her

c. to have a full and fair opportunity to scrutinize that evidence and to respond to it.

A denial of any of the above factors vitiates the inquiry and its findings. Such an inquiry is a violation of the rule of law, a denial of basic human rights and a negation of democratic principles.

A Flawed Inquiry

It is clear that every one of the four principles enunciated by Weeramantry has been observed in the breach in respect of the purported inquiry held by the Parliamentary Select Committee on the impeachment of the incumbent Chief Justice. What is worse, some of the members of the Select Committee made no secret of the fact that they were partial and had already reached a pre-conceived conclusion on the impeachment. From all available reports, at least two of the members of the Select Committee behaved and spoke as if they were in a market place. Even the Chairman, reportedly without consulting the other members of the Select Committee, summarily dismissed the defence counsel’s request for a reasonable time to examine the ‘evidence’ of some 1000 pages presented and for the right to cross-examine witnesses, if any. Any impartial observer will agree, in fact all neutral observers are agreed, that this ‘inquiry’ was a violation of the rule of law and, to borrow Weeramantry’s phrase, vitiates the inquiry and its findings.

We need to contrast this inquiry with that of the impeachment inquiry against former Chief Justice Neville Samarakoon. The members of the inquiry panel then conducted themselves with dignity and decorum, even though the panel itself (which included present Minister Dinesh Gunawardena) was divided on political lines. They gave a patient and courteous hearing to the defence counsel S Nadesan. The Chief Justice against whom the impeachment proceedings were being conducted was at all times treated with dignity and respect. The inquiry was not rushed through and the final findings included two reports, even though both reports found that the charges of misbehavior were not proven. The majority report by the government members stated that the required standard of proof for misbehaviour was very high; they could not therefore come to the conclusion that the Chief Justice was guilty of misbehaviour. The minority report signed by the opposition members, of which Dinesh Gunawardena was one, found that there was nothing even remotely possible of being interpreted as proved misbehaviour.

As against this, the proceedings of the Select Committee that inquired into the ‘charges’ against present Chief Justice was, sad to say, nothing but a sham. There was a blatant violation of the norms of natural justice and an arrogant disregard for showing even a semblance of a fair hearing. In fact, when the defence lawyers wanted to know the procedure to be followed at the inquiry their request was ignored. When they called for a list of witnesses and the right to cross-examine them, they were told that no oral evidence was going to be led and the case would rest on the 1000 odd pages of documents that were handed over to the defence one evening, on which they were requested to make their submissions the next afternoon – within a time span of less than 24 hours. Following the denial of all their requests for a fair hearing and following the uncouth verbal abuse directed at the Chief Justice, she and the defence team withdrew from the hearing. The four opposition members of the Select Committee withdrew the following day. But, contrary to what was told to the defence team, oral evidence was in fact led apparently by hurriedly summoned ‘witnesses’, the inquiry concluded and report prepared and signed by seven of the eleven-member Select Committee. Apparently, the other four members of the Select Committee have yet to see the report. Mr R Sampanthan is reported to have written to the Speaker on Thursday this week calling for a copy of the report of the Select Committee of which he was a member to enable him to ‘take appropriate action’.

Reviewing PSC Report

The President is reported to have stated that he would appoint an ‘independent’ Committee to review the Select Committee’s report. But as the Island editorially commented on Thursday this week, an ‘independent’ committee should review not only the report but the whole process followed by the Select Committee in arriving at its findings. The editorial also stated that the President had two choices before him – either to pack the committee with persons who would arrive at a finding desired by the President or he could rise above partisan politics and appoint a truly independent and impartial panel, give them a free hand and respect their findings even if it is not the one desired by him and his government. Going by past experience, we have little doubt as to which choice the President would take. He has appointed ‘Independent’ commissions of inquiry and all party committees before – like the APRC and the inquiry into the killing of the five students at Trincomalee and the seventeen aid workers at Mutur. Those reports, though submitted to the President, are yet to see the light of day.

The President has pushed himself into a corner in starting these impeachment proceedings. The only way to come out of it is by acting like a statesman, acknowledging the mistake with a magnanimous apology. He may have to a sacrifice some of his acolytes (like the two jokers in his pack of cabinet ministers who disgraced themselves, the Cabinet and Parliament by their conduct in the Select Committee) in the process but that is a price worth paying for the good image of our country and for safeguarding the democratic rights of our people.