Good governance and Rule of Law not found anywhere in the world?

Tuesday, 11 February 2014 00:15 - - {{hitsCtrl.values.hits}}

Is this statement correct? A certain worthy, of professed legal eminence, is quoted in the media as having declared at an institute of higher learning that ‘good governance and the Rule of Law are very nice words, but I am not quite sure that they are found anywhere in the world!’ It would be worthwhile to critique this comment further. We are living in a nation in which the Constitution declares that “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the Sate to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1) (e).” [Chapter II Article 9.] The Buddhist expression of the concepts of the Rule of Law and good governance are manifested in the Dasa Raja Dharma, the 10 Royal Virtues, the Buddhist ideal of good governance. The 10 virtues of governance are: Dana: It is the duty of the rulers to look after the welfare of needy subjects and to give them food, clothing and other necessities of life. Sila: Beneficence or sharing – the rulers must conduct himself in private and public life in an exemplary manner. Pariccaga: Donations – the grant of privileges by the rulers to those who serve the nation loyally, acknowledging their loyal service and encourage all servants of the public to perform in an exemplary manner. Ajjavan: Uprightness, the rulers must be absolutely straightforward, never taking recourse to any crooked or doubtful means to achieve their ends.

Majjavan: Impartiality, gentleness, the rulers’ straightforwardness and rectitude, will require firmness, but this should be tempered with gentleness, and not be over harsh and cruel. A harmonious balance is required between gentleness and firmness. Tapan: Composure, the rulers must keep the five senses under control shunning excessive indulgence, follow the middle path. Akkodha: Non hatred, rulers should not harbour grievances and act with forbearance and love. Avihimsa: Non violence – rulers must practice non violence to the greatest extent that is reconcilable with the obligations of rulers. Khanti: Forgiveness, patience, rulers must conduct themselves with patience, courage and fortitude, in joy, in sorrow, in victory and defeat, act with magnanimity, calmness and dignity. Avirohata: Non revengefulness, non vindictiveness, non enmity and friendship – rulers must not indulge in ‘bheda’ – divide and rule – acting always in a spirit of amity and benevolence. In Buddhist philosophy it is emphasised that the evil and the good of a people depends on the behaviour of their rulers, and for the good of the people the 10 Royal Virtues – Dasa Raja Dharma are to be practiced by the rulers. Further a virtuous ruler should practice Priyavacana – kindly speech and not use intemperate language. Artha Chariya – the spirit of service must also be cultivated, this includes living a simple life and not given to excesses –the Madyama Pravipadava – the middle path so fundamental to the Buddha’s teaching. Samanatmata – equality, while retaining the exalted position of being a ruler, a ruler must consider him in no way superior to the ruled and dispense justice fairly, without fear or favour. No space to exercise absolute power

In the Buddhist tradition in particular, and in ancient Asian governance in general, there was no space for the exercise of absolute power by a ruler. Power was always limited, by convention, by tradition and by philosophical belief and religious precept. Examples of abuse of power and tyrannical rule are aberrations which reinforce the generality of the situation that rulers were subject to conditionality of governance, the violation of which created resentment, revolt and regime change. Indeed King Mahanama of Lanka, in 428 A.C., wrote to the Emperor of the Middle Kingdom (China), ‘the Son of Heaven,’ in these terms, which well reflects the philosophy and principles which govern the conduct of the ideal Buddhist ruler: ‘Our ancient kings considered hitherto the practice of virtue as their only duty; they knew how to rule without being severe and honoured the Three Jewels; they governed and helped the world, and were happy if men practiced righteousness. For myself I desire respectfully, in concert with the Son of Heaven, to magnify the good law in order to save beings from the evils of continued existence.’ The Marquess of Zetland, one time Viceroy of British India, in the introduction to his book ‘Legacy of India’ says: ‘We know indeed that political science – Arthashastra in Sanskrit – was a favourite subject with Indian scholars some centuries before the Christian era. The Social Contract as the origin of kinship is discussed in the now famous work attributed to Kautilya, the Chief Minister of the Emperor Chandragupta, about the year 300 B.C. And it would seem that the people who contracted for a king in these early days did so in order that there should be some external authority capable of ensuring that the laws and regulations of the various corporate bodies which came into existence were respected. “The King,” wrote Yajnavalkya, “must discipline and establish again on the path of duty all such as have erred from their own laws, whether families, castes, guilds or associations….” It is notable that tendency towards self government evidenced by these various forms of corporate activity received fresh impetus from the Buddhist rejection of the authority of the (Brahmin) priesthood and further by the doctrine of equality as exemplified by its repudiation of caste. It is indeed to the Buddhist books that we have to turn, for an account, of the manner in which the affairs of these early examples of representative self governing institutions were conducted. And it may come as a surprise to many to learn that in the Assemblies of the Buddhists in India two thousand or more years ago are to be found the rudiments of our parliamentary practice of the present day.’ Further the principles of good governance, which results in the right thing being done the right way at the right time would include: participation of all groups, including civil society, in the process of government without exclusion or discrimination, the primacy of the Rule of Law and equity in the process of investigation, dispute resolution and adjudication, transparent access to information, responsiveness to the needs of the governed within a reasonable timeframe, tolerance of different points of view, consultation, compromise and consensus oriented administration, effectiveness and efficiency in a sustainable manner, the accountability of public, private and civil society authorities to their respective stakeholders. In Sri Lanka we are the fortunate heirs to a legal system which has been enriched by the customs and traditions of legal and customary practices from the world over. The religious influences of Buddhism, Hinduism, Islam, Christianity, the personal laws of the Kandyans, the Jaffna Tamils, the Muslims and the Mukkuwas and the legal rules of the Roman Dutch law, English law and United Nations Treaties and Conventions. Rule of Law The late Tom Bingham, who became a life peer as Baron Bingham of Cornhill, accepted as the greatest English Judge since World War II, was successively Master of the Rolls, Lord Chief Justice of England and Senior Law Lord of the United Kingdom, in his monumental work ‘The Rule of Law’, suggested eight principles which form the core ingredients of the Rule of Law. They are: The law must be accessible and so far as possible intelligible, clear and predictable. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. The laws of the land should apply equally to all, save to the extent that objective differences justify the differentiation. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred , without exceeding the limits of such powers and not unreasonably. The law must provide adequate protection of fundamental human rights. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve. Adjudicative procedures provided by the state should be fair. The Rule of Law requires compliance by the state with its obligations in international law as in national law. Lord Bingham succinctly defined the Rule of Law as follows:-’ all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made…and publicly administered in courts’. On a plain reading of the above, it is clear that there is a common golden thread running through the Dasa Raja Dharma, principles of good governance and the Rule of Law. The thread is, plainly stated, “limitations on the authority of the ruler and the protection and strengthening of the rights of the subject”. Prof .S.A. de Smith, Downing Professor of the Laws of England at Cambridge University, in his leading work, Constitutional and Administrative Law, says, on the Rule of Law: ‘One can at least say that the concept is usually intended to imply (i) that the powers exercised by politicians and officials must have a legitimate foundation; they must be based on authority conferred by law; and (ii) that the law should conform to certain minimum standards of justice, both substantive and procedural. Sir Alfred Denning, later Justice Lord Denning Master of the Rolls, of famous legal repute and intellect, in his Hamlyn lecture, Freedom under the Law, dealing with the powers of the rulers, says: ‘All that the courts can do is to see that the powers are not exceeded or abused. But this is a most important task. “All power corrupts. Total power corrupts absolutely.” And the trouble about is that an official who is the possessor of power often does not realise when he is abusing it. Its influence is so insidious that he may believe that he is acting for the public good when, in truth, all he is doing is to assert his own brief authority. The Jack-in-office never realises that he is being a little tyrant.’ Sri Lanka Sri Lanka is a proud heir to all these strong legal traditions, which give primacy to the Rule of Law and good governance. To have a person who professes to hold high legal office to declare that he is not sure that these things are ‘found’ anywhere surely only exposes the limits of his knowledge and his dictatorial and lapdog tendencies. There also has been some discussion, in Sri Lanka recently, of a Sinhala Buddhist tradition of benevolent absolute rulers, with unlimited power, in our past history. Is this tenable? Prof. L.S. Dewaraja in her path-breaking book ‘The Kandyan Kingdom, 1707-1760,, says of the Sinhala Buddhist king, at Senkadagala Kande Mahanuwara: ‘To foreigners the power of the king seemed unchallenged. The king, Knox declared, “Ruleth Absolute and after his own Will and Pleasure; His own Head being his only Counsellor.” D’Oyly remarked that “the ministers advise but cannot control his Will”. In practice however, the Kandyan monarchy was far from being an unfettered personal despotism. It followed the traditions of the Indian monarchy which, in spite of the quasi religious sanctity and the great authority vested in the personality of the ruler, which was in no way and absolute monarchy. The Kandyan king exercised supreme power, but his power was not personal and it was hedged in, by safeguards against abuse. The most relentless of these checks was sirit, the conventions of the country, which every ruler had to follow, and which if violated would turn popular opinion against him.’ The Dasa Raja Dharma and related rules were a very important part of these conventions. Prof. Dewaraja further says: ‘The king was expected to avail himself of the advice of his ministers and before any innovations of importance were introduced it was customary to consult the chiefs and not infrequently the chief monks also. The royal council consisted of the two Adigars, the Disavas, the Maha Mohottala or chief secretary and the Rate Ralas. …If on any occasion the members of the council made a unanimous representation to the king, it was laid down that the king should uphold their point of view.’ Even the present, much vilified, criticised, but most times, unsurprisingly strengthened, used/abused and supported by its erstwhile critics, when in power, the constitution of Sri Lanka, ends with the following invocation: ‘Devo Vassatukalena sassasampattihetu ca phito bhavatu loko ca raja bhavatu dhammiko’ (May the rains be on time, may the farmers have successful harvests, may the ruler be just, and by these happenings may the people prosper.) So, the conclusion is inevitably that power is never unlimited, nor absolute; it is and always has been constrained by the Rule of Law and the principles of good governance. It certainly may be argued that it can be questioned whether good governance and the Rule of Law can be reached to a 100% in any jurisdiction at any given time. The reality and immaturity of the democratic political process may certainly cause aberrations. But that does not mean that we should not strive to achieve it and that those whose duty it is to protect the ordinary citizens’ basic fundamental and human rights from abuse by the Executive and the Legislature can go to seats of higher learning and mock these concepts and express puerile doubts as to whether they are ‘found anywhere in the world’. The statement only exposes the speaker’s pathetic and slavish mindset. The Dasa Raja Dharma, the principles of good governance and the Rule of Law are entrenched into Sri Lanka’s constitutional practice, and must be upheld. It is in the natural order of things that, everything is time-bound, even an autocrat’s power. Let’s give the last word to undoubtedly the most successful strong man of Asia – retired Prime Minister Lee Kuan Yew of Singapore, the veritable doyen of all autocrats who ruled with an iron hand, with no concerns for principles of good governance or the Rule of Law. Like Mahathir of Malaysia, Suharto of Indonesia and Ne Win of Burma, he was a proponent of Asian values, which gave priority to national issues over individual freedoms. To them the Rule of Law and principles of good governance were Judeo Christian values, which were not applicable to Asia. Lee at the end of his days writes: ‘...What is next, I do not know. Nobody has ever come back. I’m reaching 87, trying to keep fit, presenting a vigorous figure, and it is an effort, and is it worth the effort? I just laugh at myself trying to keep a bold front… I’m not saying that everything I did was right, but everything I did was for an honourable purpose. I had to do some nasty things, locking fellows up without trial. Close the coffin, and then decide. Then you assess me, I may still do something foolish before the lid is closed on me.’ (The writer is a lawyer, who has over 30 years of experience as a CEO in both State and private sectors. He retired from the office of Secretary, Ministry of Finance and currently is the Managing Director of the Sri Lanka Business Development Centre.)