By Basil Fernando
Illegal arrests and illegal detentions do not only harm individuals, they also cause irreparable damage to the legal system as a whole. The recent wave of arrests of those who have participated in peaceful demonstrations has not only caused serious damage to the life and liberty of these individuals but they have caused even much greater damage to the entire legal system of Sri Lanka. This damage will continue to make its impact felt on the system long after these particular incidents have passed and even been forgotten. Collectively, the legal system of Sri Lanka has become much weaker due to the abuse of power involved in violating some of the fundamental principles on which the entire legal system rests. Disrespect for the individual and the protection of persons from illegal arrest and illegal detention goes to attack the very heart of the system. It is only a foolish ruler or an administrator that resorts to abuse the people’s liberties in the manner it has been done within the last few weeks. Such abuse of a legal process manifests the utter actions of the understanding of the fundamental rules that underline the social stability and the function of the law in maintaining the confidence of the people in the institutions that are created by the State in order to provide protection to the people. Once the population begins to comprehend that the rulers themselves do not respect the law, it would hardly be a surprise if the people adopt the same attitude. A ruler that manifests disdain for the law also creates conditions for the people to have disdain for the same laws. Therefore, in the recent weeks, wrongs have been done against the legal system of Sri Lanka by the acts authorized by the new President Ranil Wickremesinghe.
The speeches about running the country according to the law and regulations have been repeated by the new President under these circumstances. Laws and regulations, if they are to be respected by the people, require not a mere use of force to enforce such laws and regulations but also a moral authority to go with it. When the law is divorced from a moral authority, such laws and regulations become a mockery. It is not only the people who begin to disdain such laws and regulations but also many enforcers of such laws such as the Police and other security personnel also begin to treat such laws and regulations as mere instruments of suppression. Suppression merely means the authorization of violence by the State itself. When the law enforcement officers begin to see that they are no longer protectors of the people and the rule of law framework of the country but are mere protectors of some politicians who are using them in order to protect themselves from their electors, then the very psychological conditions that are necessary for proper suppliance with the law disappears. Thus, the law enforcement officers get themselves transformed into obedient servants of politicians and cease to be servants of the law. Such transformations have a serious impact on destabilizing the entire society.
In this regard, some make distinctions between what is legal and what is legitimate. Even these distinctions do not stand to be valid when closely examined. Within a system of the rule of law, nothing can be legal if it is not legitimate. If the decisions are made outside the rule of law framework, then, of course anything could be given the appearance of legality. For example, in Sri Lankan authorization, the burial of dead bodies by the suspension of the normal laws relating to suspicious deaths where the authorization of a magistrate is necessary before such burials, resulted in allowing large scale enforced disappearances,. Some may argue that since the emergency regulations allowed such a suspension of rules relating to burials that it is legal though it may not be legitimate. In fact, the emergency regulations did not make the criminal act of killing and burial legal. Despite the emergency regulations, such acts remain criminal.
The same can be said about orders or interpretations made on the basis of a Constitution that itself violates the fundamental principles of the rule of law. The 1978 Constitution fundamentally violates the basic principle of the rule of law that is that everyone is equally bound by the same laws. Therefore, the 1978 Constitution is a piece of legislation which is fundamentally flawed and therefore illegal. A law that fundamentally undermines the foundational principle of the rule of law cannot have legality or legitimacy. If such a Constitution provides processes which are themselves contrary to the wider purposes of democracy and the rule of law, then such processes cannot be treated as legal or legitimate.
Therefore, Sri Lanka is trapped in an entanglement that has become ever so complicated due to the very fact that the Constitution on which the whole political system itself is based is neither legal nor legitimate.
It is not possible to undo these entanglements without addressing the fundamental problem of what one has to do with the 1978 Constitution. This has to be done one time or the other before Sri Lanka can return to the state that is rooted in the rule of law and which can blame legitimacy for its actions.
All of these are not abstractions. All these entanglements that were created about the very nature of the legal system created insoluble problems for the political system and the political system in turn created the situation of bankruptcy that Sri Lanka is faced with at the moment in terms of this economy. The aspects of illegality, the illegitimacy of political processes and the bankruptcy faced by the economy are all bound together.
Instead of trying to face these very complicated problems, allowing of the arrest and detentions and other forms of abuse of the right to protection of the individuals and society will only go to complicate things more and more and will not bring about any kind of solution to the problems of acute poverty that is spreading due to a failed economic, political and legal system.