What is time?... We surely know what we mean when we speak of it. We also know what is meant when we hear someone else talking about it. What then is time? Provided that no one asks me, I know.
Saint Augustine-Confessions
We know what time means. But how do we explain time. Saint Augustine the Catholic theologian and 4th century philosopher explains that ‘time’ is a phenomenon of human conscience. So, it is with the phrase ‘rule of law’.
Lasantha Wickrematunge was murdered in a high security zone in an efficient surveillance state. The investigation into his murder got mired in manipulated mayhem in a quasi-theocratic state where ‘Patriotic Himsa’ was the nuanced interpretation of the central Buddhist principle of ‘Ahimsa’ in the land that now claims Theravada Thripitaka as its national heritage.
In 2015 the people demanded ‘good governance’ in place of a palpably insolent ‘securocracy’. We elected a new President and installed a new administration. They promised to restore the rule of law, end impunity and lock-on accountability.
In the past four years the ‘good governance promise’ has been honoured more in the breach than in its observance. Retired Admirals, Generals and Air Marshals hold press briefings to urge investigators to disregard the complicity of colleagues in murder and abductions. Devout prelates find it inconceivable that heroic soldiers are accused of murder.
What the current Government has done in the cases of Lasantha’s murder, Keith Noyahr’s abduction and torture and Ekneligoda’s disappearance is profoundly sinister and competes with the original crimes to measuring up to the levels of the original evil.
Agonising four years
It has mutilated the idea of truth over an agonising four years in power. Ahimsa Wickrematunge has had enough.
In a concise comprehensible book meant for the average citizen entitled, ‘The Rule of Law’, published just before his untimely death, the crusading British judge Lord Bingham has traced the sources and the genesis of the phrase and the conception of the Rule of Law. The book published by Penguin won the Orwell prize for the best political book in 2011. It is heartily recommended to my fellow countrymen wishing to unravel the gibberish of Prof G.L.Pieris, distinguished Visiting Fellow of Christ College, University of Cambridge.
The rule of law is the overarching rule of the polity. No one can be punished except for a distinct breach of the law established in an ordinary legal manner before the ordinary courts. No one is above the law. Everyone – Prince, Pauper, Peasant, Patrician, President and Prime Minister is subject to the law and to the ordinary courts.
Most importantly, rule of law is the spirit and ethos of society and not merely a constitutional conceptualisation. The rule of law is an attitude of mind and a state of affairs.
It is not simply parroting a principle or claiming to own a body of rules complied with or ignored at one’s convenience.
Rule of law gives meaning to Aristotle’s requisite in an Athenian republic - “It is better for the law to rule than one of the citizens … so even the guardians of the laws are obeying the laws.”
Lord Bingham anticipated the charlatanry of Pieris type political academics. In his book ‘Rule of Law” he explains that these conceptions are held in a political framework and not in a narrow party-political framework. In post 2015, insidious cover-ups took turns either by the UNP or the SLFP in the national coalition.
Rule of Law demands the subservience of all power to the law of the polity. For the ‘Rule of Law” to be beneficent to the objects of the exercise of power – that is, to the people against whom power is exercised – the law must not be the mere instrument or tool of the powerful, who at any one time make the rules.
The Rule of Law, as we broadly conceive it, must have within it a conception of legitimate representative exercising organised power reflecting values, both democratic and social, that make subjection to the Rule of Law an aspect of civil society’s protection of the individual, “not an aspect of domination by the powerful.”
Two aspects of the Rule of Law are foundational- the independence of the judiciary and the independence of the legal profession both private and state.
The determination and resolution of legal rights and liability must be by law and not by the exercise of discretion or choice of those who were elected on the promise of governance under rule of law!
Rule of Law must control and calibrate the exercise of state power reasonably, fairly, in good faith and for the purpose for which the power was conferred. It must provide decisive and adequate protection of fundamental human rights.
Rule of law is not an abstract principle. It is not a political polemic. It is intended to create a real lawful civil society in which individuals and society are protected by a framework and an approach based on the application of principles and rules adhered to by all that does not privilege the politically powerful.
“Law, at its very foundation, is conceived and derived from values. These values inform and underpin a fair and reasonable expectation of how power should be organised, exercised and controlled at the private and public level. These values find their expression not only in the formal law, but also in societal expectations, behaviour and actions. These transcend cultural boundaries.”
Rule of law
Minister of Justice and Prison Reforms Thalatha Atukorale says that she is not happy about Buddhist monks going to the courts let alone establishing a ‘Sanghadhikarana’ - a court for Buddhist monks. She says that her party does not desire to take Buddhist monks to courts under the criminal law. The Minister mentioned this attending a religious event in Ratnapura. But on the route to a society governed by the rule of law, the Minister appears to have missed the bus.
Rule of law is based on human values and lie in the heart of every individual, and at the heart of society. They are honesty; a rejection of unfairness; an insistence on essential equality; respect for the integrity and dignity of the individual; and, mercy. Each goes to the core of what we understand humanity and the individual to be, and to what is expected when power is exercised by, or against, individuals. Human dignity lies at the foundation of the rule of law. Its essential core rejects unfairness. That is Ahimsa’s lament.
No doubt, the lawyers for the former Defence Secretary will move for the dismissal of the plaints filed against him. But if he fails in forestalling the proceedings it will not be Gotabaya Rajapaksa alone who would be facing trial. Our Republic will be on trial.
Ahimsa Wickrematunge has reminded us that the ethnocentric, theocratic nature of our Republic is in good order. She demands freedom from deception.
Her plea made in a California court is a chilling admonition that the surveillance state – the Securocracy of Gotabaya, Hendawitharna et al is far from dismantled.
There is still a state acquiesced design to delegitimize civil society organizations that strive to create a liberal secular democracy.
The emergence of a robust civil society is still prevented by systemic resistance from the powers that be or more precisely the ‘power’ that we elected with a rainbow coalition. A khaki saffron arch has replaced the rainbow!
The journalists, lawyers, or public activists who stand up to violations of justice and human rights or the abuse of office by government officials are on their own. Their efforts are hardly appreciated by our fellow countrymen as demonstrated in the recent incarceration of a writer under the ICCP Act for writing a short story that touched on the sexuality of monks.
After four years of restored democracy and rule of law we remain in dejected drift. Where do we go when violence is threatened or meted out by those in authority? Sandhya Ekneligoda is an unnerving case in point.
She is trapped in stubborn hope and the hopeless notion that no one can help her. There is another telling definition for her predicament- complete, abject powerlessness.
There are two cases filed in California. Roy Samadanam a Tamil complains of torture and inhuman degrading treatment.
In her plaint, Ahimsa Wickrematunge asserts “The domestic investigation of Lasantha’s death has been unduly prolonged and subject to Government interference.
It accuses the Rajapaksa regime of murder in broad day light. It indicts the ‘yahapalana’ regime of perfidy and double dealing at high noon.
What can we expect from killers? They must attempt cover-ups and shield accomplices.
The deal-making by those who came to power promising justice to be meted out to perpetrators is heinous, reprehensible and morally repugnant.
The advocacy revolution in the second decade of the 21st century has effectively pierced the monopoly of the individual state on its conduct of internal affairs, specifically on human rights of the citizenry.
When the assassin pointed the sharp instrument at his head Lasantha would have seen the eye balls of his killer. In those inhuman eyes Lasantha would have seen the insanity of the Mahinda Rajapaksa regime.
Ahimsa’s civil action in a California court will remove the shroud of state duplicity, unmasking the insanity that gripped us for a decade and artfully and unquestionably covered up in the last four years of fake good governance.
Post Script:
Since this article was written the writer watched former President Mahinda Rajapaksa and former Defence Secretary Gotabaya Rajapaksa attending the traditional New Year oil anointing ceremony at the Bellanwila Raja Maha Vihara.
The Chief Incumbent Ven. Bellanwila Dhammarathana Thera blessed the two devout siblings and exhorted all patriotic people to unite behind our national leaders who unfortunately are currently subjected to contemptible calumny outside our shores.
There is yet an unresolved debate on whether Buddhism is a religion or a philosophical system. Be it a religion or a philosophical way of life it is the only doctrine that teaches its adherents that clinging to a past, like clinging to the self is a ‘forlorn illusion.’
Donald Camp is a senior US foreign service hand now serving as Adjunct Fellow (Non-resident), Wadhwani Chair in U.S.-India Policy Studies at the Center for Strategic and International Studies. He served in Sri Lanka before the Executive Presidency and the 1983 pogrom. In 2014 he unravelled our conundrum. It deserves, to put it mildly, our attention.
He says, “There was a time, not so long ago, when Sri Lanka was known for the quality of its democracy. In 1975, when I was a Foreign Service Officer at the US Embassy there, the country was in economic straits but proud of its international reputation for an independent political culture, a feisty press, and a remarkably high standard of education and social services.
On the ethnic divide he observes, “There were tensions between the Sinhalese and Tamils, but there was also a history of cooperation and respect amid Sri Lanka’s ethnic and religious diversity.”
On the civil war he asserts, “The United States and many other friends of Sri Lanka supported the Government in its fight. In 2009, the military succeeded in crushing the Tigers.”
On post war Rajapaksa folly, he writes that the Government “after winning the war, has not been able to manage the peace or rebuild Sri Lanka’s democratic traditions. Instead, the country looks to be drifting toward authoritarianism.”
On our darkness at high noon he reminds us, “Journalists are terrified and intimidated by arrests and mysterious assaults on those critical of the Government.”
Then he delivers the denouement. “President Mahinda Rajapaksa and his Government had the opportunity to be magnanimous in victory, and to offer the minority Tamil community clear signals that the Government would respond to their legitimate grievances and would offer a modicum of regional autonomy for the traditional Tamil heartland of the North and the East. It has failed to do that. The Government also needed to acknowledge and deal with the scar left by the bloody end of the war, in which tens of thousands of innocent Tamil civilians were killed by indiscriminate military shelling and by LTTE hostage-taking. The Government still owes its people — and especially, the relatives of those who died — an honest accounting of that time and a genuine effort to bring to justice wrongdoers. Sweeping these tragedies under the carpet will not help the nation heal nor bridge the divide between Tamils and Sinhalese. There must be truth before there can be meaningful reconciliation.”