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Some Above the Law Ignoring the Elephant in the room

4 October 2017 12:00 am - 0     - {{hitsCtrl.values.hits}}

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The Constitution is the supreme law; or that is what we generally believe. And the Constitution says that all persons are equal before the law. In fact the whole edifice of a constitutionally governed democracy hinges on the rule of law which derives from the premise that all citizens are equal before the law. The bottom line being, no one is above the law. An act defined as an offence or crime when committed by one should be so defined in relation to another.  

Well, the 1978 Constitution created one entity above the law -- the Executive President. The manner in which Article 35 of the Constitution was worded created a political leviathan totally beyond the reach of the arms of the law, granting it blanket immunity from the law. Hence some constitutional experts say that it was an unmistakable deviation from constitutionalism which envisaged that all under the supreme law should be subjected to the law.  

The 19th Amendment to the Constitution made sure that the draconian nature of that article was watered down and today even the Executive President of the country stands susceptible before a court of law. The theoretical aspect being so, the reality cuts an entirely different scenario; i.e. that there are persons or groups whom even the mighty and lengthy arm of the law is unable to reach. Recent incidents showed how tremulous the law enforcers were to arrest a monk who was absconding court and acting in brazen contempt of court. There seems to be a taboo over issuing or implementing an order for the rounding up of a clergyman unlike any other citizen in such a case of contempt.

Recent incidents showed how tremulous the law enforcers were to arrest a monk who was absconding court and acting in brazen contempt of court. There seems to be a taboo over issuing an order for the rounding up of a clergyman unlike any other citizen in such a case of contempt
  
The untouchables

Politicians too seem to be beyond the law with the exception of a rare few. Bigwigs whom the credulous voters thought would be brought to book soon still thrive while the law enforcement grinds on lethargically. The Lawyers, Doctors, University Dons, Students and even private bus owners as well as three-wheeler drivers all seem to think that they are immune from being subject to the law of the land.  

The general sense of impunity is widespread and every Tom, Dick and Harry on the street seem to be of the view that they are above the law applied to average citizens. The lack of fear or regard to law is clearly evident from the number of traffic offences committed in broad daylight.  

To this heap add the members of the State security apparatus. Bellowing cries emanate from all sides that they should not be touched come what may. The famous tag, ranaviruwa, or the war hero is used indiscriminately to all members of the security forces, including those who have never been to the front-lines. For some it is unimaginable that soldiers could commit crimes during war and should be dealt with under the law as in relation to ordinary citizens. They are oblivious that separate statutes that govern the conduct of armed forces as well as police demand that they be dealt with, at least, within their establishments, if not according to the ordinary law of the land.  

Yet the misconceived patriotic euphoria flushes all these concerns out to such an extent that even the head of the State is compelled to state that soldiers would not be touched in pursuance of the law enforcing machinery, thus, indirectly saying that he is interfering with the law enforcement process, for starters and also, that there are persons who are beyond the law. More disturbingly he is saying that the rights of one group of citizens is less important than those of others though both groups come under the purview of the 
supreme Constitution.  

Realities of war

With utmost gratitude and respect to our soldiers who sacrificed life and limb for our motherland, it should, nevertheless be stated that nothing could justify grave abuse of human rights, whether done in uniform, robe or some other garb. Our military is highly disciplined yet a brutal war is a scenario where people tend to become a law unto themselves. The sentence of a Senior Police Officer along with his son for murder illustrates that even in times of peace those in uniform could misuse them and commit offences. Add the scenario to places where law enforcement, court houses or any semblance of the justice system is absent and thousands of men armed have the unarmed at their mercy.  

The UN Special Rapporteur on Sri Lanka, Ben Emmerson, recently on a visit to the island, was unequivocal in his disappointment over the lack or absence of measures taken to address alleged violations of human rights during the last stages of the war. “None of the measures so far adopted to fullfil Sri Lanka’s transitional justice commitments are adequate to ensure real progress, and there is little evidence that perpetrators of war crimes committed by members of the Sri Lankan armed forces are being brought to justice,”his report reads.  

Defending our soldiers from International War Crime Tribunals or pro-Eelam groups hell bent on revenge, is one thing; allowing war crimes and grave human rights abuses, if they have taken place, to go unchecked is completely another. Wouldn’t it be the duty of the majority as a collective to inquire, as victors of a thirty-year war, whether the conquered and their ilk, who are no lesser citizens of the country than us, have been wronged and need to be redressed? Are we weaving a social fabric that does not ensure safety and confidence of our brothers and sisters by alleviating all falsehood directed at our forces?  

The Constitution does not envisage preferential treatment to one group of citizens over another, the uniform being the only difference. Any reconciliation between the two estranged communities would only be an utopia until and unless credible fact-finding is carried out and offenders, if any, whether they are in uniform, civilian clothes or robes tried under the criminal justice system of the country. The Sri Lankan Judiciary is more than capable of meting out justice to all concerned and would avert the danger of Sri Lankan security personnel being exposed to the jurisdiction of foreign judges.  

Security forces accused en masse

The 19th Amendment has taken away the blanket immunity that Article 35 of the Constitution in its original form bestowed on the Executive President. The constitution would never tolerate a situation where instead of one, there being hundreds or even thousands of individuals who stand above the law. Implement the law to all citizens equally, whether they were in the battlefield, factory, office or play ground and whether they don uniform , civils , robes or cloaks.   

Civil rights groups moving to prosecute a former army commander in Brazil as well as accusations of war crimes by him by another and a more distinguished former commander who finished the war indicates that this issue of allegations of war crimes can not be hushed up or shoved under the carpet; it is not going to simply go away due to inaction on our part. A conspiracy of silence is not going to help us.  

The 19th Amendment has taken away the blanket immunity that Article 35 of the Constitution in its original form bestowed on the Executive President

Allowing pro LTTE lobbyists to direct an accusatory finger at the State security forces en masse, for a few, if any, indiscretions committed by some, is doing injustice to tens of thousands of brave young soldiers who fought a valiant , fearless yet disciplined war. The more delayed the investigation process becomes the more it seems, to the onlooking international community that the State is trying to hush up grand scale genocide, which in reality, never took place.  

This is hardly about war crimes; it is about a flawed perception that some are simply above the law. The sooner we realize it the better for our Nation and the State.  
But we as a nation have a habit of ignoring the elephant in the room.    

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