By Basil Fernando

Illegal arrests and illegal detentions not only harm individuals – they also cause irreparable damage to the legal system as a whole. The recent wave of arrests of those who participated in peaceful demonstrations has not only caused harm to the life and liberty of these individuals but it has also diminished the entire legal system of Sri Lanka. This damage will continue to make its impact felt on the system long after the incidents have been forgotten.

The legal system has become much weaker due to the violation of some fundamental principles on which it rests including respect for the individual and the protection from illegal arrest and illegal detention. It is only a foolish ruler who abuses the people’s liberties in the manner that has been done in the last few weeks, displaying a lack of understanding of the rules that underline social stability and the function of the law in maintaining the confidence of the people in the institutions that are created by the state to provide them protection. Once the population begins to comprehend that the rulers do not respect the law, it is hardly a surprise if the people adopt the same attitude. A ruler who has disdain for the law creates conditions for the people to have disdain for the same laws. In recent weeks, wrongs have been done against the legal system by acts authorized by the new president, Ranil Wickremesinghe.

The president is giving speeches about running the country according to laws and regulations. But laws and regulations, if they are to be respected by the people, require moral authority. When the law is divorced from moral authority, it becomes a mockery. Enforcers of the law, such as the police and security personnel. begin to treat laws and regulations as instruments of suppression, which means the authorization of violence by the state itself. When law enforcement officers see that they are no longer protectors of the people and the rule of law but are protectors of politicians, law enforcement officers are transformed into obedient servants of politicians and cease to be servants of the law. This has a serious impact in destabilizing society.

Some make distinctions between what is legal and what is legitimate but these distinctions are not valid. 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, anything could be given the appearance of legality. For example, the burial of dead bodies by the suspension of normal laws relating to suspicious deaths, where the authorization of a magistrate is necessary before such burials, resulted in enforced disappearances. Some may argue that since emergency regulations allowed such a suspension of rules relating to burials, it is legal although 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 violates the basic principle of the rule of law that everyone is equally bound by the same laws. Therefore, the 1978 Constitution is a piece of legislation that is fundamentally flawed and therefore illegal. A law that undermines the foundational principle of the rule of law cannot have legality or legitimacy. If such a constitution provides processes that are contrary to the wider purposes of democracy and the rule of law, then such processes cannot be treated as legal or legitimate.

Sri Lanka is trapped in entanglements because the constitution on which the political system is based is neither legal nor legitimate. It is not possible to undo these entanglements without addressing the fundamental problem of what to do with the 1978 Constitution. This has to be done before Sri Lanka can return to a state that is rooted in the rule of law.

These entanglements created insoluble problems for the political system, which created the situation of bankruptcy that Sri Lanka is faced with; the aspects of illegality, the illegitimacy of political processes and the bankruptcy faced by the economy are bound together.

Instead of trying to face these complicated problems, allowing arrests and detentions and other forms of abuse of the right to the protection of individuals and society will only complicate matters and will not bring about any solution to the problems of acute poverty that is spreading due to a failed economic, political and legal system

 – Basil Fernando, is a Hong Kong based Sri Lankan jurist, author, poet, human rights activist, editor of Article 2 and Ethics in Action, and a prolific writer, associated with Asian Human Rights Commission and Asian Legal Resource Centre