|
Fundamental Rights and the gross abuse
of a five star judicial system
Ramanie de Zoysa
Just as it does not take long for crows to find the leftovers, it was
only a matter of time before those who play the ‘minority card’
for personal and communalist gains were going to get on the bandwagon
abusing yet another concept in international law - ‘fundamental
rights’ for personal gain. The abuse of international concepts
such as ‘self-determination’, ‘human rights’ etc
by people with vested interests to gain what was never intended by those
who formulated such noble concepts is now endemic in the Sri Lankan
context .
The fundamental rights petition filed with the Supreme Court by Rauf
Hakeem, leader of the SLMC demanding an extraordinary level of state
funded personal security plus Rs100m in damages is the latest in a string
of such abuses.
The first thought that crosses any sane person’s mind when one
hears of these claims is “only in Sri Lanka!!!!” Have we gone
past the sane to the absurd, to the ridiculous, to the insane and are
we now well and truly in the absolute preposterous?
Let us hear that story from the beginning. Mr Hakeem walked over from
the Government bench to the Opposition bench on the 12th December just
prior to the 3rd and crucial reading of the Budget. From the day of
the cross-over the fact is that as an Opposition MP he was no longer
entitled to the perks he was entitled to as a Govt Minister. Hence,
his state funded security retinue of 21 persons was reduced to 5. He
was no longer entitled to ‘back up’ vehicles that both precede
and follow the luxury vehicle he travels. Even though it was absolutely
transparently clear that his motive in walking to join the Opposition
was to defeat the budget in order to bring down the democratically elected
Sri Lankan Government, let us not waste time going down that path. Here
is a man who resigns his job as a Minister of the Govt and becomes a
MP on the Opposition bench- he is no longer entitled to the perks of
a Govt Minister and is entitled only to the perks of an Opposition MP.
Hakeem filed a petition with the Supreme Court of Sri Lanka stating
that his ‘fundamental rights’ have been violated by the Government’s
decision to reduce his personal minders from a staggering 21 to a still
staggering 5! His petition claimed that according to intelligence reports
he is on the hit list of the Tamil terrorists LTTE and the reduction
in state expenditure on his personal security amounts to a denial of
his ‘fundamental rights’ by the Sri Lankan Government.
Two major questions arise:
Is it a breach of a person’s fundamental rights to downgrade security
in line with the level of responsibilities s/he is taking?
Is the threat posed by the LTTE to the life of Mr Hakeem greater than
the threat posed by the terrorists to the lives of other citizens of
Sri Lanka who do not have state funded personal security?
What are fundamental rights (FR)?
There is no universally watertight definition of the term ‘fundamental
rights’; hence the tendency for it being all things to all people.
The term suffers exactly the same abuse and manipulation as the term
‘self-determination’ at the hands of those who are looking
for a concept vague or mailable enough to be hammered into any particular
shape or form that is advantageous to them. This is where those in positions
of authority, be it the top hierarchy of the United Nations or the judiciary
of a sovereign country needs to be on the alert for those who attempt
to spread a noble concept thinly to make it go further or to make it
something more than what was intended.
Wikipedia offers a definition of FR as being a right that is conferred
on a citizen by the constitution of that country. According to this
source, some rights ‘generally recognised as fundamental’
are the:
Right to life
Right to marry
Right to procreate
Right to raise children free from unnecessary governmental interference
Right to freedom of association
Right to freedom of expression
Right to equality of treatment before the law (fair legal procedures)
Right to freedom of thought
Right to religious belief
Right to choose when and where to acquire formal education
Right to pursue happiness
Right to vote
Right to Freedom of contract
Of course this list is neither comprehensive nor universally agreed
upon but could be the next best thing.
Looking at the above mentioned rights, there is no chance that Mr Hakeem
was denied the right to marry, procreate or any of the other rights
above, and he claims that his right to life was denied by the Sri Lankan
Government through the reduction of state funded personal security for
him.
What is a ‘right to life’?
The European Commission Charter of Fundamental Rights is a good source
for commentary in this regard even though it sets out those rights that
are available for the citizens of the EU and is therefore, more country
specific than generic.
Out of 54 articles in this Charter article number 2 deals with the
Right to Life. Article 2 simply states that:
1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.
Mr Hakeem, like every other citizen, has the right to his life- that
means to me that no one has the right to take his life- Not LTTE, not
the Sri Lankan Government. Sri Lankan Government has not attempted to
take Hakeem’s life. Can it however, be stretched to say that the
Government of Sri Lanka must protect Hakeem’s life AT ALL COSTS
where his life is threatened by a third party (LTTE)? Does the Sri Lankan
Government owe a greater duty of care to Mr Hakeem than to any other
citizen of Sri Lanka? To me, it does not.
Mr Hakeem is on the LTTE’s hit list- so is the entire Sinhala
population. Every innocent civilian who was shot to death following
the Buttala bus explosion was on the LTTE hit list. The Sri Lankan Government
owed a duty of care to these people but failed in that duty. Every civilian
who was shot to death in Thanamalwila three days ago was on the LTTE
hit list. The Sri Lankan Government owed a duty of care to these people
but failed in that duty. Every Sinhala and Muslim man and his dog in
the villages bordering the fascist Tamil terrorist held territory is
a prime target in the LTTE hit list. In fact these people are placed
far higher in the Tamil Tiger terror list than unprincipled, easily
bought, corrupt to the core Hakeem who has signed pacts with LTTE leader
Prabhakaran and posed for photos with him in the recent past. The Tamil
terrorist is no mug; he knows that Hakeem can be bought for far less
than the cost of shipping another bullet dodging the Sri Lanka Navy
in blue waters. It’s the innocent civilians, Sinhala and Muslim,
who stand in the way of their designs on Eelaam- not Hakeem. What personal
or collective security have these innocent civilians got? If they are
lucky the village will be guarded by one villager with a rifle who gets
paid a stipend that does not fully cover the cost of his food. Can the
Sri Lankan Government maintain an unreasonable level of security spending
on Hakeem at the risk of the dereliction of its duty to protect these
innocents who face a far higher risk from the LTTE psychopathic terror?
The question with a national importance is whether the Supreme Court
of Sri Lanka should entertain these petitions wasting taxpayer’s
money. In law, there is such a thing as filing a case that is ‘frivolous
and vexatious’ which will only be thrown out court and court costs
awarded to the claimant.
How much is Mr Hakeem’s life worth to the Sri Lankan society,
politics or any other field? Not a lot. There is no tangible evidence
that apart from indulging in opportunistic politics and lining his pockets
Mr Hakeem has contributed anything towards anything or anybody. There’s
the cesspit of communal politics and then there’s Hakeem- in politics
just for himself- not even for his community. He sinks even below the
cesspit. Hence, I consider Hakeem’s claim to be not just selfish,
ridiculous or crass - it is immoral. It is taking the mickey out of
a first class judiciary system and a democratic society. With respect,
CJ Sarath N de Silva should have sent a signal to the other potential
abusers of the system by throwing Hakeem’s case out of court and
awarding him a substantial fine to cover costs of the Government in
entertaining his petition. Instead CJ de Silva took the time to negotiate
with the Secretariat concerned for increased security for Mr Hakeem.
Why? Pandering to the whims of those who abuse the system just because
they belong to a minority?
We have to learn from previous FR petitions filed with the SC earlier
which resulted in the dismantling of road blocks and stopping search
operations carried out on dodgy lodgers in Colombo. Which fundamental
right of a citizen was denied as a result of having security check points
in Colombo? Is the inconvenience of being selected at random to produce
identity papers and/ or to allow the search of a vehicle a denial of
a fundamental right? Was not the right to life for those that got killed
by the terrorist atrocities greater than any other right that SC protected
by dismantling the check points? Is loitering at will in the city at
a time of great risk from insurgency a ‘fundamental right’?
These are questions the eminent judges of the SC must consider before
simply caving in under the international spotlight and undue pressure
from scheming opportunists. So many innocent civilians paid with their
lives for these errors of judgement.
|
