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Authoritarianism & The Rule Of Law

| by Dr. Ruwantissa Abeyratne

( September 2, 2013, Montreal, Sri Lanka Guardian) Navi Pillay, United Nations High Commissioner for Human Rights, is reported to have said after her short official visit to Sri Lanka that the country was turning to authoritarian rule. Sometime earlier, when a former Chief Justice was impeached, others made the same allegation. Whether there is truth in this claim or not is not for me to decide. My purpose in writing this article is to highlight the singular tool against authoritarianism which is the Rule of Law. If a State can show without doubt that the Rule of Law operates therein without fear or fervour, it is difficult to allege that it is authoritarian. The Rule of Law is "law school 101" - the fundamental principle inculcated in the mind of every law student at entry into law school.

The most practical definition of the Rule of Law comes from the United Nations: " The Rule of Law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision- making, legal certainty, avoidance of arbitrariness and procedural and legal transparency".

In contrast, "Rule by Law" demands that the general populations abides by and obeys the law while the rulers choose to remain above the law and therefore are not subject to it.

One of the best examples of the successful application of the Rule of Law was seen in what most of the western nations categorize as a failed State run by corrupt rulers and an autocratic military which is out of control, whose collective feckless insouciance at governance has earned it disrepute among some nations. The State I refer to is Pakistan. Yet, for all its perceived inadequacies and its disorderliness, its one time military ruler General Pervez Musharraf who wielded unlimited powers was brought to book by the High Court for sacking Chief Justice Iftikhar Mohammed Chowdhry on 9 March 2007. The High Court ordered the Prime Minister to remove President Musharraf's immunity from prosecution.

This demonstration of the Rule of Law is a clear reflection of the will of the Pakistani people (applied through the courts) of their preference for the Rule of Law over authoritarianism and arbitrary dominance.

In essence, the Rule of Law is a common identifier of decency and civilization and promotes global ethics. Kishore Mahbubani, in his well reasoned and meticulously researched book "The Great Convergence-Asia, The West and The Logic of One World" (PublicAffairs: New York, 2013): " If the Rule of Law spreads rapidly across the world, I have no doubt that it will in turn create a more stable and orderly world. The instinct to resolve problems and conflicts through the rule of law at home should in turn lead to a habit of doing the same across borders, giving another reason that we might expect a continuing decline in wars between States. Even in South East Asia - a relatively troubled region for decades - the governments of Indonesia and Malaysia and then Singapore decided to resolve their territorial disputes by referring them to the International Court of Justice (ICJ)".

By this Mahbubani posits the indisputable fact that the Rule of Law should in essence be multilateral. He quotes world leaders who espouse and indeed push the thrust of multilateralism as an inevitable corollary to our collective realization that the outworn fetishes of a purblind society which considers itself master unto itself takes the Rule of Law one step further when he says is a tired and worn out approach of governance. The world is rapidly becoming one, with a collective conscience of right from wrong based on a common platform of justice and rights. As Former President Bill Clinton said: " We share a common future on this planet of ours that is getting smaller and smaller and smaller. A world without walls is the only sustainable world...If the world is dominated by people who believe that their races, their religions, their ethnic differences are the most important factors, then a huge number of people will perish in this century. The world has never truly had to develop an ethic of interdependence rooted in our common humanity. And if we do it, the 21st Century will be the most interesting, exciting and peaceful era in history".

Needless to say, Clinton's philosophy was indeed prophetic, considering the sectarian violence in Syria, Iraq, Egypt, Myanmar and even China (and I dare say, Sri Lanka).

Clinton's words are echoed by the likes of Tony Blair, former Prime Minister of the United Kingdom who said" ...large communities of different nations and faiths now live cheek by jowl, whereas before oceans and continents separated them..." and Gordon Brown, another for Prime Minister of the same country who said" we now live in a world of global trade, global financial flows, global movements of people, and instant global communications...we need a systematic approach as to how we, as a global community can solve the problems that we face.."

It is incontrovertible that there can be no true globalization and no credible "one world theory" if there is no "one Rule of Law" common to all nations. This Rule of Law should be based on the immutable principle that no miscreant gets away with impunity; all are equal no matter who they might be; and law and justice prevails over every other consideration. If Navi Pillay believes that Sri Lanka is turning into an authoritarian rule, what she must mean is that the Rule of Law is deteriorating in the country and that it might not be a suitable member of the "one world club" of Clinton, Blair and Brown. She would have to justify this statement when she gives her full report in Geneva in the weeks to come.
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