Features
Rule of Law, terror and why ‘ordinary lives matter’
While the 2020 murder of Afro-American origin George Floyd by some US law enforcers and issues growing out of it constitute the dominant backdrop to the visit by the expert body, it should be of vital relevance to countries such as Sri Lanka that the panel will also make ‘recommendations as to the concrete steps needed to ensure access to justice, accountability and redress for excessive use of force and other human rights violations by law enforcement officials..’
Needless to say, some Sri Lankan law enforcers have been standing accused of using excessive force on protesters over the past few months and it would be in the interests of the Sri Lankan state and its law enforcers to study closely the findings and recommendations of the UN panel currently visiting the US. It is vitally important that the latter tasks are engaged in because the Sri Lankan government is also focused on how ‘terror’ could be quashed.
As is known, a controversial piece of legislation is being considered by the Lankan government to manage ‘terror’ but the state needs to be alert to the fact that a heavy-handed approach to ending ‘terror’ may end up creating just the opposite: phenomenally-escalating ‘terror’ that would be overwhelmingly unmanageable. All too soon the Sri Lankan authorities seem to have forgotten that their excesses and abuses led, in the main, to the emergence of separatist militancy in the North-East of the country in the late seventies.
It took 30 long years for the North-East war to apparently end but if the Lankan state is continuing to speak of the need for reconciliation, it is a clear indication that the country’s ethnic question is continuing to be seen as remaining unresolved. This is surely the case because there has been no political solution to the ethnic conflict thus far. It would be in the best interests of Sri Lanka for a political solution based on substantive power-sharing between the centre and the country’s North-East to be evolved without any further foot-dragging on the part of the government.
Meanwhile, ideally, the realization ought to dawn on the authorities of ethnically divided and troubled countries such as Sri Lanka that bringing enduring peace is not merely a question of enforcing the Rule of Law. This is so on account of the fact that not all laws are seen as just and fair by all sections of a polity.
Even constitutional provisions could lack legitimacy in the eyes of some. If in these circumstances laws are enforced, it could prove a recipe for social disaffection and even anti-state militancy. The better option for states would be to build consensuality among a public on the country’s laws and its Constitution.
It could not be stressed enough that the fundamental law of a country, which is its Constitution, must be seen as just and legitimate by all sections of its citizenry. This implies that Constitution-making is necessarily an elaborate process because all sections of a country’s public need to be consulted by the framers of the Constitution. Constitution-making that ignores these requirements is bound to be fatally flawed and would eventually pave the way for social divisions, conflict and even war; so vital is public consensuality in Constitution-making.
The above standpoint indicates that the opinions and views of so-called ordinary people profoundly matter in the task of a country charting its future. At this point it is relevant to ask: Was the citizenry of Sri Lanka ever consulted in any Constitution-making process? Obviously the answer is ‘No’. ‘Ordinary people’ didn’t seem to matter.
In this respect there are two countries that have proved exemplary. One is India and the other, present day South Africa. In the case of India, the fundamental rights chapter in its Constitution could never be tampered with or violated by any arm of government or section of society. The people’s rights enshrined in this section are truly sacrosanct.
Part 111 of the Constitution fully bears this out. For example, provision 13(1) of part 111 states: ‘All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.’
Likewise in the case of South Africa, its Constitution was framed post-apartheid through close consultation with the people. Leaders such as Nelson Mandela spoke of how every woman and man ‘of the street’ was consulted by the authorities in the task of bringing its new, democratic Constitution into being. That is, ‘ordinary lives mattered’. People could make their submissions on what they needed in the Constitution on any sort of paper material they could lay their hands on: gift wrappings, serviettes, pamphlets etc.
Content that was in violation of the people’s fundamental rights was kept out of the Constitution. Once again, the aim was to serve the best interests of the ‘ordinary people’ and not those of the privileged.
In spirit, the UN experts’ panel currently in the US, looking at ways of how the state could better manage issues related to racism in the US, could be said to be at one with the Constitution-makers of India and South Africa. Essentially, the panel too is exploring ways of serving the better interests of the ‘ordinary people’ by contributing towards building a more racially-tolerant US. The enterprise is clearly pro-people.
Reportedly, the US state readily facilitated the visit of the experts. On this score, the state appears in a favourable light. There is clearly no ‘double-talk’ or ‘double-think’ on the importance of the UN. The UN is basically seen by the US as making a positive contribution to the wellbeing of peoples. This is as it should be; a state cannot be a member of the UN and destructively criticize it as well.