Impunity: Unequal before the law

The Free Dictionary defines impunity as ‘exemption from punishment or loss or escape from fines’. In the context of the international law of human rights, it refers to the failure to bring perpetrators of human rights violations to justice and, as such, itself constitutes a denial of the victims’ right to justice and to bring perpetrators of human rights violations to justice and redress.

Impunity is especially common in countries that lack a tradition of the rule of law, that suffer from corruption or that have entrenched systems of patronage, or where the judiciary is weak or members of the security forces are protected by special jurisdictions or immunities. A case in point, of the latter, is India’s the Armed Forces Special Powers Act, which gives the Indian Army impunity from the law in so-called ‘disturbed areas’.

Impunity

Impunity has been looked at extensively by international human rights organs. The United Nations Commission on Human Rights, in February 2005, considered ‘A Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity,’ which defines impunity as ‘the impossibility , in law (de jure) or in fact (de facto), of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that night lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to make reparations to their victims’.

The First Principle of that same document states that: ‘Impunity arises from failure by the states to meet their obligations to investigate violations, to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished, to provide the victims with effective remedies and to ensure that they receive reparation for the injuries suffered, to ensure the inalienable right to know the truth about violations, and to take other necessary steps to prevent a recurrence of violations.’

Some countries emerging from civil conflicts appoint truth and reconciliation commissions, similar to Sri Lanka’s Lessons Learnt and Reconciliation Commission, in order to cast light upon the gruesome events of the past. But the process and output of such efforts vary widely and each one has to be judged on its merits.

In some instances they assist in the ultimate prosecution of human rights violators, in others it is alleged that perpetuate the impunity by enabling violators to seek protection by phony confessions and forgiveness and also seek protection of concurrently adopted amnesty laws.

In 1998 the Rome Statute adopted by the International Criminal Court was intended ‘to put an end to impunity for the perpetrators… of the most serious crimes of concern to the international community as a whole’.

Space for impunity

Within nation states, the space for impunity by the rich and powerful varies on the level of equal protection of the law available within that jurisdiction.

States with independent prosecutors, who do not serve at the pleasure, will, beck and call of the executive, with independent judicial systems devoid of influence peddling by the executive and legislative branches of government, with an independent legal profession not cowed down by partisan political goons and police and security forces, with an independent media where investigative reporters are not killed and do not disappear, where the overwhelming voice of state media does not drown out others, where civil society organisations of professionals, academics, business persons, public servants persons, religious institutions are given the space to speak out freely and stake out a civil society space which will keep the perpetrators of human rights violations in check.

In emerging economies, where economic power has been democratised but political power in still in the hands of a few, this is a very serious problem.

China

Commentators have spoken on the case of the People’s Republic of China. Liberalisation of the economy has put money and wealth power into the hands of ordinary people, who are not card-carrying members of the Communist Party, but the party has been shrewd enough to enrol some of them as members, referred to as ‘Red Capitalists’ and thereby subvert them.

Communication and Information Technology and mobile communication penetration has given the ordinary Chinese the power to communicate freely with his fellow citizens however much the State tries to control the freedom of information. In this environment, can the Communist Party keep its stranglehold on political power intact?

The problem is further complicated by the power of Communist Party officials and in some cases by bad eggs in their families. They claim immunity from being punished for wrongdoing, just because they are the progeny of the rich and powerful.

These ‘Red Princes,’ children of senior party cadres, veterans of the Long March, Red Capitalists, communists of recent vintage and other long-standing senior Communist Party cadres, behave as if they are above the law, with an impunity which is mind-boggling.

Recently in Beijing, the son of a senior Security Bureau official Li Gang ran over two roller skaters, killing one. When arrested by the Police, he shouted: “Sue me, my father is Li Gang!”

That video, recorded on a mobile phone by a bystander, went viral on the internet, has become a byword for the impunity that stalks modern China and threatens the legitimacy of the Communist Party’s political domination of Chinese society.

Above the law

The belief that power and money are above the law lies at the heart of several recent scandals in China. Going back to the suppression of information, an infant formula milk powder in the market being used by consumers had been mixed with a poisonous melamine chemical substance, due to the authorities not wanting China’s ‘good name’ sullied during the Olympic Games which were going on at the same time in Beijing.

The Chinese authorities did not go public on the issue until the Prime Minister of New Zealand threatened to speak out. A New Zealand multinational company, Fonterra, was a joint venture partner with the Chinese milk manufacturer and distributor – globalisation to the rescue!

In a recent earthquake, a number of ‘one child only’ policy school children were killed, when jerry built schools buildings collapsed. They had been built by fraudulent contractors, hand-in-glove with corrupt officials.

A horrific electric train crash on a new high speed line, which is one of China’s showcase projects, is also attributed to corruption in awarding contracts and the procurement of substandard parts by senior Communist Party officials who thought their positions gave them impunity from liability. However, one senior cadre was executed for corruption.

Some analysts have decried this decline of moral standards in today’s China. They blame Deng Hsiao Peng, who set China on its cutthroat Dickensian capitalist path, by going to a southern Chinese industrial zone and declaring that ‘to get rich is glorious’!

Others point out that in Chinese culture, people always first looked out for themselves, before showing compassion to others. Author Lijia Zhang quotes a proverb: ‘Each person should sweep the snow from his own doorstep and one should not fret about the frost on his neighbour’s roof.’ The jury is still out on the question whether modern post-communist China’s core values promote a culture of impunity, with self-interest being paramount.

India

Recently from our big brother neighbour, India, we have a salutary example of equality before the law. Readers would know about the scandal surrounding the allocation of 2G Spectrum licenses by the Union Government Ministry of Telecommunication in Delhi. The former Minister A. Raja is in Delhi’s Tihar jail, together with a host of other politicians, bureaucrats and business persons who have been implicated in the scandal.

Indian coalition politics has evolved into a culture of coalition partners being allocated lucrative ministries and the enforcement authorities looking the other way as the politicians milked the system illegally to raise funds for their regional parties.

Photographs of Raja’s Chennai house have gone viral on the internet; it is a horrific combination of Hollywood glamour and Bollywood crassness. A. Raja was a nominee of the regional satrap of India’s southern state Tamil Nadu; with Karunanidhi, the leader of the DMK party, now out of power in the state.

The DMK supported the Congress party Government in Delhi and it is common knowledge that Raja getting the lucrative Telecom Ministry was a quid pro quo for the political support. Among those in Tihar jail was Karunanidhi’s daughter Kanimozhi, a Member of Parliament and a powerful member of the DMK, being the regional satrap’s daughter.

The Central Bureau of Investigation (CBI) alleges that some of the kickbacks from the 2G Spectrum allocation went towards some charities and a television station with links to the DMK and Kanimozhi.

Political and commercial corruption has been getting prominence and literally ‘under the scanner’ (as Indian news wallahs are wont to say) in India, after the Anna Hazare threat to starve unto death unless the Jan Lok Pal Bill was passed into law in this winter session of India’s Parliament.

Independence of the Indian judiciary

There is much public interest in the activities of the Central Bureau of Investigation (CBI) and the Indian judiciary. On 3 November, the pleas for judicial bail for Kanimozhi, ex-Telecom Ministry Secretary Siddhartha Behura and former Minister A. Raja’s Private Secretary R.K. Chandolla and many others involved n the case came up for determination.

The Special Central Bureau of Investigation Court Judge O.P. Saini had reserved order on the bail applications on 24 September. The DMK and Karunanidhi brought tremendous political pressure on the Delhi coalition Government, which they kept in power through the DMK MP’s votes, to get Kanimozhi and her colleagues out on bail.

The Central Bureau of Investigation, under the political control of the Union Government, did not oppose the bail pleas for Kanimozhi and four of the others, on the grounds that the accused faced specific charges, apart from the criminal conspiracy charges.

Advocate Ram Jethalamini, an intimidating senior political lawyer of some repute, who had appeared against Indira Gandhi when she was PM, appeared for Kanimozhi, supporting the bail application. His strongest argument was that the CBI was not opposing bail and a secondary argument was that Kanimozhi was being discriminated against because she was a woman.

Justice Saini dismissed the bail pleas. The Judge said that by no stretch of imagination could Kanimozhi be said to be suffering from any discrimination on the ground of being a woman. He said that charges levelled against the accused were very serious in nature, having grave implications for the economy.

The Indian media went to town. The talk shows trotted out by lawyer after lawyer who spoke of the choice of the court should be bail before jail, especially when the CBI had not opposed bail being granted.

The more balanced reviewers spoke of the importance of the order for the rule of law and to establish that however politically and socially influential the accused were, the law would prevail. In this case certainly there was no impunity for the politically powerful. One salutes the independence of the Indian judiciary.

Case in South Asia

The Hong Kong-based Asian Human Rights Commission(AHRC) recently issued a statement on a case in south Asia, where it stated that an alleged rapist and molester of women, who is also alleged to have murdered four persons, is alleged to be the owner of a vast network of criminal elements engaged in the trading of illicit drugs.

The AHRC states that these criminal elements have also been engaged in a large amount of criminal activity in the country. The AHRC further states that recently there have been allegations of linkages between the stock exchange and the trade of illicit drugs. The stock exchange had been used for money laundering.

A coincidence is that the chief regulator of the stock exchange has just been removed. The person on whom the AHRC issued the statement has been named as being present at a quadruple murder scene, by witnesses under oath before the judiciary.

AHRC says that under the normal law prevailing in the country concerned, anyone who is suspected of a murder would be arrested. The AHRC alleges that the person concerned has been taken out of the jurisdiction of the courts of that country for medical treatment.

The AHRC concludes that the person concerned is one to whom the normal law of the country concerned clearly does not apply. In fact a minister and government employee of that country both have made a statement that the person in question is not a suspect in the case. Should this not be a matter for the autonomous prosecuting agency or the judiciary to determine?

The AHRC comes to the conclusion that the person concerned is clearly above the normal law. The AHRC states that what should clearly be matters for judiciary or the criminal investigating authorities to decide had been hijacked by other organs of government, in the country concerned.

The AHRC concludes by saying that in the country concerned the failure on the part of civil society, the media and the intellectuals has prevented the development of a serious opposition to the utter illegality with which that country is run.

Surely, Kanimozhi and Li Gang’s Red Prince son would have given an arm and a leg to live in the country the AHRC writes about!

Sri Lankan tradition

We in Sri Lanka have a proud and honourable tradition of equality before the law. The principle that people of equal status should be treated equally in the eyes of the law is a well-established principle of our governance over the centuries. It is provided for in the Constitution by which we are governed.

This is no decrepit imported Western colonial concept, but a custom which we inherit from our ancient and revered history and tradition, presently written into our Constitution. Even the absolute monarchs who ruled this land in ancient times were subject to the Dasa Raja Dharma, the 10 principles of good governance, and violation of these were grounds for revolt.

The Mahavamsa gives an account that King Elara of Anuradhapura had hung a bell with a long rope at the head of his bed so that those who desired judgment at law might ring it.

Once King Elara’s son while travelling unintentionally ran over and killed a calf, the grieving mother cow in sorrow tugged at the bell and the King after investigation, caused his son’s head to be severed as punishment. This legend in the Mahavamsa, the Vamsatthaappakasini explains, was meant to show that King Elara dispensed justice with equanimity and impartiality.

Indeed the ancient Chronicles and inscriptions are full of such examples which prove that equality before the law was an integral part of traditional Sinhala Buddhist governance.

King Kavan Tissa was advised by his ministers to rule ‘rightly and impartially’. King Nissankamalla in the Galpotha slab inscription stated that ‘the appearance of an impartial king should be welcomed as the appearance of the Buddha’.

The Chronicles state that King Parakramabahu the 1st ‘being in virtue of impartiality free from liking and disliking’ made decisions ‘free from error’. The sage of south Asia Kautilya has said ‘it is power and power alone, which only when exercised by the king with impartiality… maintains both this world and the next’.

We recently witnessed the heart-rending plea on television by Hirunika Premachandra, daughter of assassinated Presidential Advisor Bharatha Lakshman Premachandra, for justice for her late father and her appeal to the young people of Sri Lanka to assert their moral authority to re-establish the rule of law.

Expropriation

The Government has recently gazetted and enacted a law named as the Revival of Underperforming Enterprises and Underutilised Assets. The Cabinet deemed it to be an urgent bill and therefore affected parties could litigate the constitutionality of the bill before enactment.

The Supreme Court said it was in compliance with the Constitution, though badly drafted. It is now law. The bill singled out 37 or 38 companies of various types for takeover. Reports say that at the committee stage in Parliament, Kantale Sugar was added. Analysts allege that there is no equal treatment at all for corporates of the same class.

For example, take production of sugar. A listed operational company, Pelwatte Sugar, is included; a recently-privatised profitable company, Sevanagala Sugar, is included; a 51% State-owned non-functioning entity, Hingurana Sugar is excluded; State-owned Kantale Sugar, also not operational and tendered for disinvestment in the recent past, is supposed to have been added as the last minute. Is this equal treatment before the law?

Are all their assets underutilised within the meaning of the bill? Who decides, who interprets, who judges, who do you complain to? One is reminded of an old Sinhala saying: ‘The goods are his, the rogues are his, the determination/decision is also his!’

In terms of the bill, there is only one underperforming enterprise in the whole of Sri Lanka – the Hilton Hotel! Among the underutilised assets are the Sri Lanka Exhibition and Conference Centre opposite Lake House, a foreign direct investment by Pico Holdings of Singapore!

Such legislation goes against the grain of the much vaunted principle protected in Sri Lanka from time immemorial, of equality and equal treatment before the law.

(The writer is a lawyer, who has over 30 years experience as a CEO in both government 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.)