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Saratha Fonseka- Has he been denied the protection of the Rule of Law?


7 March 2012 12:15 am - 0     - {{hitsCtrl.values.hits}}


The concept of the Rule of Law was formulated by the celebrated British jurist Dicey in his work titled the Law of the Constitution which was first published in 1885. The British Constitution is founded on the Rule of Law. From very early times the Supreme Court has held that the Rule of Law forms part of our Common Law and availed of it to safeguard personal liberty from invasive governmental action. In 1937 an Australian national by the name of Bracegirdle was engaged in organizing trade unions in the upcountry plantations.
He was arrested and detained on an order of the British Governor made in terms of the Ordinance relating to public security. The Supreme Court struck down the order of the Governor, being the representative of the British Monarch and directed the release of Bracegirdle on the premise that there was no threat to public security which warranted the Governor’s order. Thus the Rule of Law got entrenched in our legal system and our Supreme Court has repeatedly held that it is the basis of our Constitution.
The primary meaning of the Rule of Law is that the action of any governmental authority which affects the legal rights, duties or the liberties of any person can be taken only if it expressly authorized  by law. The basic premise of the Rule of Law can be formulated as follows. A citizen can engage in any activity, so long as what he does is not prohibited or restricted by law. A restraint that may be observed on moral or religious grounds by anyone is a matter of personal choice.
A governmental authority, on the other hand, is prohibited from exercising any power unless expressly authorized to do so by law. In legal parlance every act of governmental power should have a strict legal pedigree and what is not expressly authorized is prohibited. Sadly, in Sri Lanka this fundamental premise of the Rule of Law has been stood on its head. Those wielding governmental power do whatever as they please and the people have to submit to their command. This apathetic submissiveness is a tragic result of 30 years of war, of which people of all races were the ultimate victim.
The next meaning of the Rule of Law is incidental to the first. Not only is governmental action restricted to what is expressly authorized by law, such action when taken should not be arbitrary. It should be reasonable and restricted to achieve the objective of the law.
Another meaning of the Rule of Law is the principle of equality. All persons, including those who wield governmental power are equal before the law. And, disputes including those relating to the legality of acts of government should be decided by judges who are wholly independent of the executive and are themselves subject to the Rule of Law. There are several secondary meanings; one of particular significance is that no one should be punished except for some legally defined crime.
I would now examine the fate that befell Sarath Fonseka from the standpoint of the Rule of Law. He contested the Presidential election in the exercise of his democratic and constitutional right and promptly challenged the genuineness of the result at a public meeting organised by the political parties that supported his candidature. A few days later on the night of February 8 2010, whilst he was having a discussion in his office with leaders of political parties that were supporting him, a group of Army personnel barged into his room, physically overpowered him and dragged him down the staircase. He was bundled away to an undisclosed location. He was not produced before any court of law for several months. And, no court of law authorized his detention. This happened during the period of time in which he was entitled to file a petition in the Supreme Court challenging the result of the Election.
Circumstances in which Fonseka was purportedly arrested or more appropriately abducted are revealed in an application filed on his behalf in the Supreme Court within a few days of the event, alleging cruel inhuman or degrading treatment, unlawful arrest, and detention, and denial of the equal protection of the law. The application was fully supported by affidavits of leaders of the political parties who were present at that time including the incumbent Minister of Justice. The case has not yet been taken up for hearing by the Supreme Court. 
Fonseka was deprived of personal liberty which is protected as a human right in International Law by Article 9 of the Universal Declaration of Human Rights and Article 9 of the International Covenant on Civil and Political Rights (ICCPR) which has been ratified by Sri Lanka and, as a fundamental right by Article 13 of in Constitution being the Supreme Law of the Republic. Article 13 of our Constitution which is the content similar to Article 9 of the ICCPR provides that no person shall be arrested except according to procedure established by law and the person arrested shall be informed of the reason for his arrest. Article 13 (2) provides that a person held in custody or detained shall be brought before the judge of the nearest competent court according to the procedure established by law and shall not be further  held in custody except on an order of such judge made in accordance with the procedure established by law. The repeated requirement of compliance with the procedure established by law demonstrates the manner in which the Rule of Law safeguards personal liberty and the absolute necessity of any arrest and detention to be in compliance with such procedure.
This is the first in a two part
series by the writer

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