Politicisation of Rule Of Law

(The writer is a former executive director in human resource management and development and currently serves as a management consultant and a human resource management lecturer in the corporate sector)

Rule of Law is considered as a concept consisting of predominant principles required to be followed in the process of making and implementation of laws in democratic states. It is a changing concept as interpreted by some experts in constitutional law and political science through the passage of time on the evaluation of values attributed to law.

The main characteristic of Rule of Law as defined by Dicey in his work ‘Law Of The Constitution’, Wade and Phillips in their work ‘Constitutional Law’ and Jennings in his work ‘Law and the Constitution’ could be identified in a nutshell as follows. Dicey says “no man is above the law, and every man is subject to the ordinary law of the State and amenable to the jurisdiction of the ordinary tribunals, and no man is punishable except for a distinct breach of law established in the ordinary legal manner before the ordinary court of the land. Predominance of the legal spirit in the British Constitution is Rule of Law”. Wade and Phillips have defined that “the most significant aspect of the Rule of Law is the absence of arbitrary power on the part of the Government. Independence of Judiciary is generally regarded as forming part of Rule of Law”. Jennings equates the Rule of Law with Democracy. “Power of the Executive should not only be derived from the law, but that they should be limited by law. Law should be equal and should be equally administered , that like should treated alike without distinction of race, religion, wealth, social statues or political influence”.

Provisions are there in the Constitutions of Sri Lanka to effect the almost all characteristics pertaining to the Rule of Law concept as above referred to in the process of Legislative, Executive and Judiciary functions of the State.

Practice in reality

However it has been observed that there is a substantial deficiency between the laws operating in reality and the laws operating in compliance with the principles of Rule of Law.

Under parliamentary democracy, Legislature is the principal lawmaker. Legislative power derives from Sovereignty. Article 03 in Chapter 01 of the Constitution of Sri Lanka states “in the Republic of Sri Lanka, sovereignty is in the people”. Article 04 of the Constitution of Sri Lanka states that “Legislative power of the people shall be exercised by Parliament consisting of elected representatives of the people and by people at a referendum.” In that context it gives an impression that “no law is above the people due to the fact that legislature is the prime law maker which consists of representatives of the people elected by the people.” It is the sovereignty of the people that empowers law. Accordingly it is illogical to say that “no man is above the law.”

In that context Legislature or Parliament is duty bound to make laws by which people are benefitted. We have observed in history of world politics that masses have been compelled to rebel and expel regimes due to harsh laws imposed by dictators where masses have become unbearably oppressed under such laws. Rebelling against the laws imposed by the Government tantamount to breach of Rule of Law principle that “every man is subject to the ordinary law of the State.” This principle denotes that people should obey the law and comply with it even they are not benefitted by such laws. Is it practical?

There is some kind of compulsion that generates from the law itself for the people to obey the laws whether they like it or not. In short the question is why people obey the law? They do so due to following facts mainly that they prefer a peaceful society based on law and order that to a lawless society, due to fear that they have to undergo punishments imposed owing to breach of law and overall benefits they would gain by compliance with law.

If the laws could not realise anyone of the conditions above referred to, it is not possible to impose rule of law principles viz “every man is  subject to the ordinary law of the State” and “no man is above the law”. These two principles also generate an impression that there is a command behind law which enforces punishments over the people and pressurises people to comply with law irrespective of whether people are benefitted or oppressed by law. Thus, command is a vital component of Rule of Law without which it is not possible to give effect to the Rule of Law principles, which are “no man is above the law” and “every men is subject to ordinary law of the State”.

The Command needed to enforce law should be derived from sovereignty of the people. Sovereignty of people has been delegated to the representatives of people elected to the Parliament through parliamentary election in terms of Article 04 of the Constitution of Sri Lanka. Although Article 04 states that “legislative power of the people shall be exercised by parliament consisting of elected representatives of the people”, it is the political party who has captured governmental power in Parliament through parliamentary elections and in reality, is the de facto lawmaker in parliamentary democracy. This is one of the deficiencies in the process of law making where corrupt political parties and politicians attached to those parties found opportunity to manipulate principles of Rule of Law, to suit their political agenda and thereby to twist the law in their favour.

It is a fact that prime objective of any political party, who capture governmental power in Parliament, is to consolidate power gained and stay in power as long as possible. In that context Rule of Law concept “no man is above the law” would facilitate political party who capture governmental power in Parliament to keep the masses under the control of law on the one hand and to maintain law and order of the country on the other hand and thereby consolidate power they have gained in Parliament and exist in power irrespective of the protests triggered by the people. In this manner, shrewd politicians can abuse Rule of Law concept exclusively for their benefit disregarding what benefit it should provide for the people of the country. 

Equality before law

There is no provision in Rule of Law concept which controls supremacy of Parliament on the process of enacting of laws and prevents Parliament enacting of harsh and undemocratic laws. Instead it says “no man is above the law”. In that context there is a possibility that the political party who had captured majority of seats in Parliament could enact and impose harsh laws to suppress its political rivals on the pretext of restoring Rule of Law of the country. Equality before law is one of the cardinal principles of Rule of Law. This principle could be disregarded under privileges and immunities given to the members of Parliament and the Executive President in terms of Article 4(c) and Article 35 of the Constitution respectively.

It is absolutely necessary in parliamentary democracy to establish and consolidate independence of Judiciary. Article 4(c) of the Constitution states “the judicial power of the people shall be exercised by Parliament through Courts, Tribunals and Institutions created and established or recognised by the Constitution or created and established by law”. In that context it is doubtful whether Judiciary of this country enjoys absolute independence free of undue influence of the Legislature and the Executive. The power of Parliament (Legislature) to impeach Judges of the Supreme Court, post judicial appointments given by Executive President to some retired Judges etc. are considered as possible avenues which could cause undue influence over independence of Judiciary by Legislature and Executive. We have experienced up to what extent the independence of Judiciary had been suffering consequent to the clashes that emerge between Judiciary and the Legislature and Executive in the past.

It has been observed that the Government has introduced new laws such as Proceeds of Crime Act No. 05 of 2025 to investigate on alleged crimes and corruptions. Government has exclusively focused on the political rivals of the JVP/NPP in that process whilst completely forgetting series of crimes, breach of law and order, and unlawful activities committed and damages caused by JVP and Aragalaya activists during past regimes. This practice and attitude of JVP/NPP Government tantamount to manipulation of Rule of Law principle that “laws should be equal, and should be equally administered, that like should be treated like alike” etc. to suit the political agenda of the ruling party JVP/NPP.

In the process of conducting investigations using the procedure set out in Proceeds of Crime Act No. 05 of 2025 there is a possibility that some cardinal principles of Rule of Law such as “presumption of innocence”, “restriction of powers of arbitrary arrests and detention” etc. could be disregarded due to wide powers assigned to the ‘Police Designated Officer’ under that Act. It has been observed that Attorney General (AG) has warned on some investigations conducted by the Criminal Investigation Department (CID) that arrests have been proposed without substantial evidence needed for arrests.

Article 13(5) of the Constitution of Sri Lanka has specified that “every person shall be presumed innocent until he is proven guilty” at a fair trial by a competent court. Nevertheless it has been observed that categorisation of political rivals attached to previous regimes as arch-thieves (‘Okkoma Horu’) at the election campaigns and wide publicity given through media on some selected suspects at the beginning of investigations are considered as gross violation of the principle presumption of innocence in Rule of Law concept.

Some investigations have been conducted on selective basis where priority had been given on suspects who are in the rival political camp of the ruling party. It may be noted that almost all ruling parties were in the habit of protecting and hiding, either in Parliament or outside, alleged corruptions, crimes and unlawful acts committed by their members whilst giving top priority to probe and detect alleged crimes committed by politicians in the rival camps, thus violating Rule of Law principle that “Law should be equal and should be equally administered.” The present Government cannot be treated as an exception to that corrupt practice.

Free election in Rule of Law

The free elections is considered as another predominant principle of Rule of Law concept. Article (3) of the Constitution of Sri Lanka emphasised inter alia that “In the Republic of Sri Lanka Sovereignty is in the people and … sovereignty includes the franchise.”

It means there should be a conducive environment for franchise holders to exercise franchise free of undue influence of a third party. However it is a fact that almost all parliamentary, presidential and local government elections held in the past and by the present regime as well have been thoroughly enmeshed with undue influence caused by political parties at the election campaigns. Franchise holders had become badly mislead by hollow pledges given and emotional impulse raised by the political parties at election campaigns. Remember flamboyant pledges given by AKD at the elections and the present status of those pledges. Promises not kept is considered as breach of trust.

Politicisation

It may be observed that it is extremely difficult, if not impossible, to exercise Rule of Law concept at its full scale due to politicisation of Rule of Law as and when opportunity is available by political parties to suit their political agendas. Politicisation of any discipline, not only the Rule of Law, is inevitable in our society due to the fact that parliamentary democracy or representative democracy in this country is based on corrupt party politics whose sole intention and priority seemed to be nothing but to grab governmental power by hook or crook disregarding the Rule of Law principles. In order to overcome this situation the political culture of this country should be reconstituted. The political literacy of the masses should be upgraded  further enabling them to use their franchise judiciously and prudently. And, simultaneously, laws insisting a code of conduct in alliance and compliance with Rule of Law principles required to be followed by political parties, should be enacted and enforced.