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Saturday, September 25, 2010

RULE OF LAW AND THE LAW OF RULE

By Hasaka Ratnamalala
Recently I came across some news and pictures in Sri Lankan media, on a group of Sri Lankan lawyers agitating with a coffin in front of Supreme Court claiming that RULE OF LAW in the country is dead. When taking a closer look at the pictures I identified three of the lawyers; in the agitation. According to my understanding one of them is notably a wife beater, the other one is a massive fraudster collaboration with some police officers specially during the times of Colombo lodge raids and had a fraud document case against him at one of the courts in Colombo but somehow managed to hide the case under the carpet and the third one once took part in an illegal bailing episode of a corrupt millionaire in a poya day (public Holiday in Sri Lanka).
While practicing law breakers in their private life; do these lawyers have any moral right to cry for rule of law of the country? Few days later, I found the answer, when I saw the same faces in media for another reason. This time they were protesting against United National Party (UNP) leader Ranil Wickramasinghe, in a press conference for not taking the party to the victory in elections. This indeed is a desperate moment for a self centered group of lawyers whom have joined a political party on the intention of gaining something for themselves; such as their dream jobs at government corporations or foreign postings etc. Realizing that UNP will not be able to hold on to power for a long time, is indeed scary. So the reason for agitation is not a question of rule of law, but a question of “law of rule” which Ranil Wickramasinghe lack of and Mahinda Rajapaksha had enough of.
If the rule of law is dead in Sri Lanka it is nothing but due to these types of individuals with duplicity in their practice, who appears as protectors of law but in fact they are law breakers in the real life. This is the main reason why Sri Lanka had a hard time keeping up with the law and order, in the country and that is exactly the reason why we need to keep the executive presidency.
In practice we are not a common law country like Great Britain and some western nations, we respect constitutional supremacy in our courts system. The Rule of law and constitutional supremacy are different but interconnected concepts. Upholding constitution as the supreme law of the country is constitutional supremacy; while practicing constitutional supremacy and respect other laws of the country is rule of law. There are also unwritten principles known as “conventions” which are look like laws, but they are not creations of legislature; instead they were created through practice. Most of our parliamentary procedures are originated as conventions and some of them later converted in to laws through legislations but some are still in convention stage.
Sir Ivor Jennings on the conventions, “We have to ask our self three questions: first, what are the precedents; secondly did the actors in the precedents believe that they were bound by a rule; and thirdly is there a reason for the rule? ...a whole string of precedents without such reason will be of no avail...” (The Law and the constitution 5th edition 1959) So according to Sir Jennings, even though these conventions are part of the rule of law process, if there are no reasons to follow them; there are no legal consequences of breaking such conventions.
The 18th amendment, which the above mentioned lawyers were agitating against, is removing the barrier of two times limit for presidency. While two times limit is a part of our constitution therefore a law; but the concept of the “limit”, is coming from a convention. Therefore if the constitution could be amended properly according to the laws described in the constitution (as we also are believers of parliamentary supremacy), there is no breach in rule of law for not following a convention of “limitation” as long as there is a reason for that change.
The reason: constitution as the supreme law of the country must reflect what country is; the people, culture, tradition and challenges (reconciliation and security) etc. We fix our constitution according to our country’s needs. What we now need is a strong leadership with strong nationalist ideas to take the agenda of the country forward. The agenda is the need to come out from thirty years of backlog of necessary developments in infrastructure, economy and concrete security of the nation and rise as one Sri Lankan nationality; which was neglected by every government ruled Sri Lanka. In that process our people by nature just need someone to lead them. That is what working and that is what we should implement into our constitution. Implementing imported ultra liberal western concepts into a country will hung us back at the list of failed states.
As an example, while there are enough laws and Public Health inspectors (PHI) to implement them, why we are still in need of creating a presidential task force to counter Dengue? Because, our officers continuously failing to do their job. This indicates that by our nature, we are in need of someone with a cane behind us. Don’t know the reason but that is how we are!
Another example, while the Government offices are decentralized through provincial councils, still villagers are travelling to Colombo to get things done; in most case presidential directive is the only way of getting things done throughout the country. Why? Don’t know! But that is the only way things could get done. Therefore until someday we have an efficient government we need man with a cane on the top. That is why we need to keep executive presidency in our constitution; but just keeping the job is not enough we need the right person at the job as well. Finally Sri Lankans found that person, and they keep electing him for the job; and that is a political decision of Sri Lankans and no one has the right to challenge that. But if Sri Lankans found another person with better qualities they will change their mind and vote accordingly. Unfortunately Sri Lanka’s opposition haven’t been able to produce such a person yet.
The agitation of UNP lawyers at the Supreme Court complex is nothing but a political and legal joke and as they always do will help our enemies to use against us. If they really follow the rule of law they should obey the new18th amendment to our constitution because that is the law now. 

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