With regard to power, it is well established that powerful entities in society escape prosecution—or receive more lenient sentences if they are prosecuted—than less powerful individuals
by Zulkifli Nazim
Advocacy of a system of government according to constitutional principles and the rule of law are the central features of any political democracy that respects human rights. An independent judiciary, the essential guardian of the rule of law, is the linchpin - a central cohesive source of support and stability of the scheme of checks and balances through which the separation of powers is assured.
Otherwise, there is no other guarantee that the executive--the "government"--will respect the rule of law and act within established legal norms, processes, and institutions. The constitution is thus not merely hortatory, giving strong encouragement; but the fundamental and supreme law of the land, the real and living document that guides, defines, and permits all actions by the state. No individual or official of the state is above the law or can act in defiance of constitutional prescriptions. This is what separates democratic states from undemocratic ones. It is the difference between tyranny and freedom.
The state represents and serves the people; it is a protector of people’s rights and freedoms. Not only is the state responsible for writing and passing laws, it is also tasked with defining, regulating, and controlling criminal behaviour and has to take full responsibility in maintaining law and order in society and protecting the people.
Unfortunately, the state does not always fulfill this role. Indeed, in some cases the state does the exact opposite and harms the very people it is supposed to protect—sometimes engaging in implicit or even explicit criminal activity in the process.
It goes to prove that untrammelled and unlimited law-making and executive power, put citizen liberty at risk.
Political corruption and crimes of the state are therefore often inextricably linked in complicated ways. We have seen many instances of political corruption and state crime in the recent past, with impacts that range from economic damage to physical injury to death—sometimes on a monumental scale.
We have witnessed blatant infliction of injury, harm, humiliation, rapes and violent revenge, especially by politicians. Political corruption and state crime can be thorny. We have reached a stage where we are facing difficulties in pinpointing appropriate avenues of controlling these crimes. These challenges are exacerbated by power issues and the associated reality that the state is in a position to write or change laws and, in essence, regulate itself, mostly to protect their supporters and henchmen.
The majority are under the impression that deterring criminal behavior assumes, that people who are caught for a crime will be punished. In the classic deterrence model, deterrence depends on the expected benefit of the criminal act, weighed against the probability of being caught, and the size of the sanction if caught.
Yet we have seen in Sri Lanka that there are entire groups of people who are not really subject to the rule of law, supported and nurtured and protected by the corrupt politicians or otherwise, as they are able to evade punishment even if caught breaking the law.
De facto immunity from punishment can run with class status, kinship, wealth, ethnicity, or status as a political elite. For people who consider themselves above the law, whatever the punishments, penalizations and penalties that you may impose for committing heinous crimes, it will never alter their propensity to engage in criminal or corrupt behavior, because the probability of being punished if caught is too low for legal enforcement to affect their behaviour.
With regard to power, it is well established that powerful entities in society escape prosecution—or receive more lenient sentences if they are prosecuted—than less powerful individuals
Powerful entities can even tilt the laws in their favor (Stephen Lukes - refers to as the “second dimension of power”) to allow for activities that in most other contexts would be considered illegal.
This reality of powerful entities tilting the laws in their favor might partly explain why these powerful entities are not prosecuted for their crimes—their activities may not technically be illegal if they have succeeded in getting the laws changed to allow these activities.
We also know that there is great cultural variation in the acceptance of some people being above the law. In the context of the prevailing Sri Lankan culture, “elites” can literally get away with murder and are indeed getting away with murder and with impunity.
It is also an established fact in Sri Lanka that there is heavy unprecedented interference and intervention by those in authority In short a potentate, a ruler who is unconstrained by law, making those decisions, detrimental to the country and its people and they do it with an extreme and unreasonable feeling of pride and confidence – This is what is referred to as Hubris; and this Hubris leads to the downfall of many politicians.
Judicial independence is fundamental to every democracy, both as a guarantor of the separation of powers in the state and of the rule of law. It ensures justice and equity through the predictability of court decisions that cannot be overruled by a political establishment.
Two latest instances come to mind where act of hindering, obstructing and impeding justice have run amok:
1. Protecting The Southern Provincial Council Member Krishantha Pushpakumara alias 'Raththaran', given bail for abusing a 14 year old girl, given bail by a magistrate court – when bail could only given by a High Court – Interference at a high level.
2. Blatant protection afforded to those involved in the likes of Rishantha Bandara Aluthgamage, former Minister Mahindananda's son and SP Wijesekara, son of Presidential Security Division SP Wijesekara on the brutal traffic accident caused to The Traffic Superintendent of Borella, Ananda Sagara.
Plato and Aristotle both developed important ideas about government and politics. Two of the many political subjects that these men wrote about were tyranny and the rule of law. Tyranny occurs when absolute power is granted to a ruler. In a tyrannical government, the ruler becomes corrupt and uses his power to further his own interests instead of working for the common good.
This is something that we have seen happening, here in Sri Lanka, for over a decade.
Political corruption and crimes of the state are therefore often inextricably linked in complicated ways.
In conceptualizing state crime, one factor to consider is the role of the state in said criminal activity and it can be explicitly involved or implicitly involved. Put differently, some state crimes may be state-initiated, while others are state-facilitated (Kramer & Michalowski).
Herman Goldstein, from the seat of Criminal Law in the University of Pennsylvania states : “The strength of a democracy and the quality of life enjoyed by its citizens are determined in large measure by the ability of the police to discharge their duties and he outlined the challenges associated with defining police corruption and put forth his own definition, in which he states that police corruption includes acts involving the misuse of authority by a police officer in a manner designed to produce personal gain for himself or for others” –
A recent case in point is the barbarous murder of two businessmen from Rathna Udagama, Boossa, 33-year-old Manjula Asela, and 31-year-old Rasen Chinthaka where the involvement of the Senior DIG who was in charge of the Southern Province Ravi Wijegunawardena has come to light.
Concluding with the guidance from two great Greek Philosophers:
In his last book, Plato’s Laws, Plato stressed the importance of law - he summarizes his stance on the rule of law:
“Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.
Plato’s ideal and just state is an aristocracy, the rule of the best. He believed leaders needed to be wise and trained in how to run a state, just as captains of ships are trained in how to run a ship.”
Aristotle stated that “the rule of law . . . is preferable to that of any individual.” This is because individuals possess flaws and could tailor government to their own individual interests, whereas the rule of law is objective.
He added that rulers must be “the servants of the laws,” because “law is order, and good law is good order.”
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