Sri Lanka’s Discourse On The Rule Of Law !
R.M.B. Senanayake
A few days ago the OPA held a seminar on the Rule of Law. Eminent lawyers Mr. Upul Jayasuriya and J.C Weliamuna and Human Rights Commissioner Dr Prathiba Mahanamahewa spoke on the current state of the Rule of Law.
The concept of the Rule of Law arose during ancient times. It was there even in the Code of Hammurabi. Aristotle said more than two thousand years ago, “The rule of law is better than that of any individual.” The ancient Romans raised the question “who is to “guard the guardians”? What if those who are appointed to guard us misbehave and deprive us of our freedom. They came up with the principle of the Rule of Law. “We are free because we live under civil laws.” — said Montesquieu later on. In Plato’s dialogue, the Athenian Stranger declares that a city will enjoy safety and other benefits of the gods where the law “is despot over the rulers, and the rulers are slaves of the law.” In other words, the ruler and his retinue as well as government officials are to be the servants and not the masters of society and the Law should be supreme.
But that is only as far as the concept is concerned. In practice both in the East and the West it was not adopted for the ruler was king and had a plenitude of power. He would not easily part with any of his powers. The first manifestation of the Rule of Law over the Rule of the Ruler was with the Magna Carta of 1215 when the barons forced the King to sign up the Charter promising to govern according to the Law limiting the use of discretion. King John agreed to give up rule at his discretion and to govern according to the law. It guaranteed certain liberties to the people for example by explicitly accepting that no “freeman” (in the sense of non-serf) could be punished except through the law of the land. Clause 61, established a committee of 25 barons who could at any time meet and overrule the will of the King if he violated the provisions of the Charter, seizing his castles and possessions if it was considered necessary. This practice was known as distraint, but it was the first time it had been applied to a monarch. But King John had no intention to be bound by it. The Pope Innocent III ruled that the King was not bound by the oath to uphold the Charter since it was forced upon the King by violence and fear.” He rejected any call for restraints on the King, saying it impaired John’s dignity. So England was plunged into war with the failure of the king to abide by the Magna Carta and the barons offered the throne to a Prince from France. Read More
