One law for the lion and ox
is oppression (terrorism)
C. Wijeyawickrema, LL.B.,
Ph.D.
Freedom is the recognition of necessity
The plan to register Tamils living in Colombo must be looked at from
a holistic perspective and not with a tunnel vision. Under an unrealistic
belief in the operation of the Rule of Law and citizenship rights, Ms.
Tisaranee Gunasekara (TG) expects the defence secretary to behave like
a Vessantara so that he will end up as a Sirisangabo (Island Newspaper
and the Asian Tribune website, 9/21/2008). The defence secretary came
from a village. He was at the Vadamarachchi operation. He lived in USA,
knowing firsthand how the rule of law operates. All what TG does is
writing from her Colombo office. A responsible defence secretary cannot
operate like those who stupidly said that the MIG jets were "floating
coffins." There is no right without a corresponding duty. This
is a basic rule found in the Indian and US constitutions. There is an
instrument called the "interpretation law" which is used to
balance rights versus duties. We also call it the reasonableness doctrine.
In Buddhism this is known as the Middle Path (compromise).
The brotherly love
TG taints her argument by somehow connecting brotherly loyalty with
her phrase "a ruthless administration." Napoleon was the only
person who rose up so quickly without relational help. But after he
became the emperor he appointed his sisters and their husbands as new
kings and queens of the land conquered. Why? Can we forget that Dudley,
Mrs. B and JRJ heavily relied on their brothers? DSS gave a job to his
son and planned to make him the next PM. I think it was Sri Lanka's
fortune that the first village president has three, not one, brothers
to be his additional eyes, ears and hands.
Prisons in democracies
The Penal Codes of India and Sri Lanka developed by the Englishman
McCauley in the 1870s-1880s have criminal offences such as trespass,
kidnapping and wrongful confinement. These deal with restriction of
spatial movement of people. House arrest, detention or imprisonments
are part of law in all democracies. In Sri Lanka or in USA the president
of the country is in a big prison with restricted movements. If a person
loiters near the White House he or she is arrested and questioned by
the secret service. In Sri Lanka, while Prabakaran's agents are free
to travel and live in any part of the country, the president, cabinet
ministers, most MPs, Anandasangaaree or Douglas Devananda cannot have
free movement without military escort.
This is why TG's cry against screening Tamils in Colombo is problematic.
She says it is acceptance of separatism and treating Tamils as enemy
aliens. Nobody is asking to change the Thesawalamai law in Jaffna which
prevents outsiders buying land in Jaffna. No democracy can function
without an army and it is the army that provides physical security to
journalists like TG or to Supreme Court justices. What if a bomb explodes
near the SC building? Law in the book has no meaning in itself; it is
the law in action that matters. If terrorists are taking the advantage
of laws in the book to set up terrorist cells, store bombs and plan
attacks, then the army has a duty to prevent the abuse of law, before
courts get a chance to hear about it. Colombo cannot be allowed to become
a Kilinochchi or a Mulathiv for those terrorists running away from the
army advances. Yes, there is inconvenience and there can be rouge police
officers who would try to abuse their powers, but no reasonable Tamil
living in Colombo can object to government's preventive strategies.
Otherwise, a series of bomb attacks in Colombo will be interpreted by
persons like TG as a sign of a "failed state." This then bring
in the next argument of inviting UN Peace keepers!
Right to sleep under the bridges in Paris
The equality of law is an abstract concept. The equal treatment under
the law is also an abstract idea in most cases. This is what we see
today in countries threatened by terrorist attacks. In his book titled,
"The behavior of law," Donald Black (1976) demonstrated how
law behaves one way for the rich and the powerful and another way for
the poor and the disadvantaged. Democratic capitalism in practice becomes
brutal capitalism for the survival of the fittest. The rich and the
poor both have an equal right to sleep under the bridges in Paris. The
equal treatment under the law is possible if Tamils who do not support
terrorists and who enjoy the security in Colombo take the extra step
of their duty to report and not to give shelter to suspicious Tamil
newcomers. The objective truth has been that terrorists have found safe
havens among Tamils in Colombo.
Old ways of confining Japanese or German residents in remote camps
cannot now handle unseen and unknown suicide bombers. That is why in
USA citizens' telephones are tapped, e-mails read and movements monitored.
If the law says the one who first reaches his food gets all the food
then oxen will always be starving! Laws aimed at facilitating peaceful
civilian way of living cannot be applied to terrorists. What people
like TG and the Colombo NGOs can do in this regard is to provide voluntary
services, monitor and intervene if even one rouge police officer abuses
his authority. We must not forget that the July 1983 thing had happened
when the IGP and the all the four DIGs were Tamils!
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