The establishment of the ‘People¡¦s Committee for the Establishment of the Rule of Law Again’ by a group of concerned people is a welcome move. At the very inception of such well-intentioned work however, it must be asked whether this is not a belated move. If such a question does not precede the work, all that will be achieved at the end is the reinforcement of sentiments expressing regret and disappointment, without any capacity for bringing about change.
While the proposal for the reestablishment of the rule of law admits that all rule of law has been lost, ‘loss of the rule of law’, ‘collapse of the rule of law’ and the like are phrases that have ceased to carry much meaning. It would thus be useful to ask what the extent of this loss is. Without any agreement on the extent of that which is lost, the proposal for its reestablishment may not be clear or resolute enough. At present for instance, amongst the articulate sectors of Sri Lankan society, to extrajudicially do away with those who are hard-core criminals is an article of faith. Police officers claiming to have shot such a criminal are thus considered heroes. Leading monks appear in the press accusing persons in opposition to such acts to be collaborators of the criminals or persons lacking in patriotism.
This call for the liberty to kill criminals is a clear manifestation of the loss of faith in the justice system. It is a common phenomenon in societies that have reached a high level of demoralization for tacit approval of extrajudicial killings as the solution to crime to develop. Any discussion on the rule of the law must take into consideration this mindset, which considers the law as a hindrance to personal security. The development of such a mental framework allows society to overlook that which a stable society would consider gruesome, inhuman and uncivilized. Sri Lanka has reached that point.
While the law is in the books, even state agencies such as the police, prosecution and judiciary initiate and follow policies in contradiction with the law. A question openly posed by representatives of such agencies is that if the people are in favour of a measure such as the extrajudicial killings of alleged criminals, is it possible or even necessary to oppose it? The policy line thus expressed is that what ‘people feel’ is much more important than the law. When the legal establishment responsible for the enforcement of the law begins to believe that the law is superfluous and a luxury while the reality demands actions in direct contrast to the law, how does any discussion on the rule of law become relevant?
Whether or not any of the important laws in the country is considered enforceable by the legal establishments mentioned above should be queried. The answer does not lie in the righteous assertions that the representatives of these agencies are obligated to make if the questions are asked publicly, but in the actual enforcement principles and prevalent philosophy regarding these laws. In most instances it will be thought that the breach of these laws is necessary for the maintenance of so called social stability and order.
The term ¡¥law and order¡¦ is no longer a valid term in Sri Lanka. Rather, ‘order’ with or without law is the prevailing philosophy. In this case, if the law becomes an obstacle in achieving ‘order’, then the law must be discarded. This is not just a theoretical premise, but how practical policies are developed and pursued in the establishments that are supposed to uphold the law. It is common knowledge for instance, that there is a tacit agreement to ignore the law regarding corruption. As for torture, the prevalent premise is that the police are unable to carry out criminal investigations without the use of torture. The Convention Against Torture Act No. 22 of 1994 then becomes a hindrance to criminal investigations. ‘Legal experts’ thus argue against the enforcement of the Torture Act on two grounds: the police cannot function without the use of torture and that the people want the police to function, even if torture is to be used. Similar arguments legitimize extrajudicial killings of alleged criminals.
In such circumstances, can Sri Lanka be called a society governed by the rule of law? While abstract answers may claim that it can, in reality what can be done under the pretext of law is now left to the executive and supporting institutions. What is perceived to be the wish of the people is now more important than the creation and enforcement of legitimate laws. This being the case, senior police or prosecution officials now have the right to decide what is ‘the wish of the people’ and then carry out such wishes, regardless of the law. They also have the power to authorize the commission of crimes such as murder, torture and kidnapping.
Any establishment of the rule of law must mean the acceptance of the supremacy of law above all other considerations. There cannot be selective acceptance of some laws and rejection of others, and nor can there be arbitrary decisions regarding who should select the law to be followed. Equality before the law is a primary tenet of societies governed by the rule of law. Without this supremacy and equality, law becomes irrelevant.
If demoralization and disappointment has created ‘a wish’ to allow law enforcement agencies to ignore or violate the law, then the real arena for the fight of the reestablishment of the rule of law is public opinion itself. All efforts to reestablish the rule of law must convince the public that the critical examination of the problem is serious enough to allow for an effective remedy. Yet another exercise of mere commentary on certain aspects or obstacles regarding the collapse of the rule of law will do little to address the problem or change public opinion.
We hope that the newly advertised venture for the reestablishment of the rule of law creates the type of discourse in Sri Lanka that will be able to get past public cynicism about a law enforcement system that has so deeply disappointed the people. If it is able to do that, it will generate one of the most critical movements in the country that will have a lasting effect in rebuilding the fabric of the rule of law as against the arbitrary actions done in the name of ‘people¡¦s wishes’.
