SLBC questions whether the rule of law is so sacrosanct

| by Basil Fernando

( December 12, 2012, Hong Kong, Sri Lanka Guardian) On the SLBC radio, in the mornings, there is a program that is inappropriately entitled "People's Power." It is just political stooge programming, which tries to take up some current issues and create justifications for government positions. It is a dull and boring presentation but, since some of the issues discussed and the interpretations given throw some light on the kind of thinking that is promoted in favour of repressive measures, it is worth a short reflection.

In one of the programs (11th of December), the main topic discussed was on the Chief Justice's impeachment.  The commentator attempted to give some of his own musings on some matters discussed. Seemingly irritated by constant references to the abuse of the rule of law, he posed a question as to whether the rule of law is so sacrosanct. If you take a lighter view on the separation of powers and the independence of the judiciary, it is quite natural to challenge the fundamental basis of all such notions.

If one has doubts as to whether human liberty is so sacrosanct, then of course it is natural to regard rule of law and all other consequent notions as of little or no importance. The reason why the removal of the Chief Justice of the country is being challenged is to preserve the principle of irremovability of superior court judges, which is central to all such notions related to the protection of human liberty. The contest, therefore, is not about an individual but about an institution. For individuals, to be safe from the greed and carelessness of rulers, there need to be institutions that create limits to what the rulers can do. If these institutions cease to exist or exist only in name, but are incapable of performing their functions, the rulers will have their heyday and the people will have their most miserable times.

That there should be limits to power, as power tends to corrupt, and that absolute power corrupts absolutely, is so axiomatic that hardly anywhere where reasons prevails is this idea ever challenged. But in Sri Lanka, it is now under challenge. To ask whether the rule of law is sacrosanct is to ask whether the rulers have to be bound by rules at all.

This attitude is manifest in almost all the expressions of every government spokesman on the issue of impeachment. Everyone admits that there is something wrong in the standing orders relating to impeachment, namely that it does not provide for an impartial inquiry by a tribunal. While agreeing with this, the government spokesmen tried to make the issue quite a trite and unimportant one. For example, Vasudeva Nanayakara, a one-time radical with Marxist claims, in an interview with the BBC, said that he was of the view that there is something wrong in the Sri Lankan procedure as compared, for example, to that of India, where it is a tribunal consisting of three judges who will conduct the inquiry.

However, he said that since we have to take what we have, it is good enough. On the one hand, to admit that the Sri Lankan procedure is unfair, on the other hand to state that it is good enough, is of course contradictory, but this veteran politician saw not much significance in such contradictions.

The SLBC radio program took it even further. The commentator quoted some articles which have raised an issue as to how judges conducting an inquiry into a fellow judge's misconduct can be impartial. The judges meet each other privately, he went on to say, and therefore there is no guarantee of impartiality. Of course, the commentator failed to mention that any judge who is called upon to an inquiry who feels that he has some personal interest in the matter is under obligation to recuse themselves, or face penalties. The idea that a judicial inquiry is so called because the inquiry would be conducted according to universally accepted norms was not considered significant enough to be mentioned.

The idea was to say that seven party members conducting an inquiry into allegations that the same party has made is no problem because whoever conducts an inquiry, there may be some objections that may be taken. That is how far the trivialization of rules and norms has sunk for people who are defending the indefensible.

In the BBC interview, when Mr. Vasudeva Nanayakara was asked how a person who is given over 1000 pages to answer to the following day could do so, he took the same approach of making it into a trifling issue by saying that, well, she could have answered two or three pages on one day, and asked for more time to answer the rest.

Mr. Vasudeva Nanayakara was aware of the list of accusations filed by the four opposition party members against the manner in which this inquiry was being conducted. However, none of those matters on very basic and fundamental issues mattered to him at all. The principle on which his triflings were based was that the rules do not matter.

In such an intellectual atmosphere, it is no wonder than the government allows the state media to be used to propagate the idea that the rule of law is not that sacrosanct.