Sunday Times 2
Rule of law demands equality, justice, law-abiding Govt
View(s):The following is the text of the speech delivered by K. Kanag-Isvaran, P.C. at the convocation of the University of Colombo after he was conferred a doctorate by the university
In conferring on me the degree of Doctor of Laws, honoris causa, the University of Colombo, Sri Lanka, is affording me a signal token of esteem for which I should like to express my gratitude.
I am also very glad to be invited to deliver the convocation address this evening amongst this distinguished, accomplished and learned gathering. I deeply appreciate the invitation of the University of Colombo.
K. Kanag-Isvaran, P.C. delivering the convocation address
It was just last week that the vice-chancellor communicated to me the news that the University of Colombo has decided to honour me at today’s convocation.
I am the more sensible of this honour in that I have the good fortune to share it with a number of distinguished persons who preceded me and who too have won fame in the field of law and who have contributed greatly to the intellectual, professional and social life and renown of Sri Lanka.
I do also recognise that the high distinction that has been bestowed on me is also directed, through me, to the legal profession which I have the honour to serve.
I am told that two days running – yesterday and today – in six marathon sessions almost 3,000 candidates have been conferred the post graduate degrees and diplomas, across a wide range of programmes conducted by the University of Colombo. This figure does not include the bachelor’s degree awardees, I am told. That is quite an amazingly high number.
For many of you, it is a dream come true. No doubt, you have toiled hard to reach this stage of your life.
It must, I am sure, have been a tough call, juggling between your studies, professional callings, family responsibilities and social duties as well. I must therefore commend you and your loved ones on your well-deserved success.
This ceremony also brings back fond memories of my own graduation from the University of London, cap in hand, at the Royal Albert Hall in London, over five decades ago, when I set new ambitions to myself. I am sure the young and not so young post-graduands would have already done so for yourselves.
That is how one can construct a great career, one that will make you proud, give you profound satisfaction and create meaningful impact on the world around you.
Going to university is about acquiring the skills that will project you into a meaningful and satisfying career. It is about developing as a person so that you can really contribute to your community. It is about embarking on an interesting and rewarding life.
My association with the University of Colombo goes back, if I remember right, to over 30 or so years ago when I was invited to be a lecturer on International Trade Law for a diploma course in International Trade Law and Practice initiated by the Faculty of Law in 1987. It was an attempt to invest in skills relevant and necessary to the country’s future and pivotal to driving long term growth. Unfortunately it was short lived — it lasted for two years till 1989, because of political unrest of the time and the sad demise of the then vice chancellor. Nevertheless university life moved on amidst trying times.
Fast forward and there is a new generation today, with new hopes and aspirations and looking to the future. As indeed it must.
Today you are living in a fast changing world. The world of knowledge and skills is constantly evolving. Globalisation is bringing about radical changes at the level of world society.
But remember that law is an essential ingredient in the process of globalisation.
Economic globalisation cannot be understood apart from global business regulation and the legal construction of the markets on which it increasingly depends.
Cultural globalisation cannot be explained without attention to intellectual property rights institutionalised in law and global governance schemes.
Protection of vulnerable populations globally cannot be comprehended without tracing the impact of international criminal and humanitarian law or international tribunals.
Contestation over the institutions of democracy and state building cannot be meaningful unless considered in relation to constitutionalism.
But one must not forget that the corner stone of contemporary constitutional democracy is the rule of law. Contemporary constitutional democracy would be impossible in the absence of the rule of law, which requires that the state only subject the citizenry to publicly promulgated laws, that the state’s legislative function be separate from the adjudicative function, and that no one within the polity be above the law.
The citizenry’s consent to the rule of law would therefore be a key factor in the legitimation – not only of the rule of law regime at stake, but also of the constitutional democracy associated with it.
The three essential characteristics of modern constitutionalism therefore are limiting the powers of government, adherence to the rule of law, and the protection of fundamental rights.
Before determining what the rule of law is or what its potential may be, it is important to note briefly what it is not, by elucidating its minimum requirements.
The “rule of law” is often contrasted to the “rule of men.” In some cases, the “rule of men” (or, as we might say today, “the rule of individual persons”) generally connotes unrestrained and potentially arbitrary personal rule by an unconstrained and perhaps unpredictable ruler.
At a minimum, therefore, the rule of law requires fairly generalised rule through law; a substantial amount of legal predictability (through generally applicable, published, and largely prospective laws); a significant separation between the legislative and the adjudicative function; and widespread adherence to the principle that no one is above the law.
Consistent with this, any legal regime which meets these minimal requirements will be considered to satisfy the prescriptions of the rule of law.
In a pluralist society with diverging conceptions there may be a lack of consensus concerning what would constitute a fair means to stabilise legal expectations. The more disagreement there is on these issues, the more existing legal norms are likely to be perceived as a function of politics rather than the institutionalisation of the rule of law.
More generally, however, in terms of perception, the rule of law seems to go hand in hand with a relatively high level of integration among diverse perspectives, while the rule of politics seems tied to significant fragmentation within the polity.
There is no question that the rule of law is, nevertheless, rightly regarded as being the foundation of any democratic society. But the rule of law is meaningless if there is no access to justice. It is pointless to be granted rights if you have no way of enforcing them.
Some generally agreed principles of access to justice are that:
- laws should be accessible, clear, precise and open to public scrutiny
- people should only be punished for crimes set out by law and not simply by the discretion of the state, the judiciary or otherwise
- courts must be accessible, affordable and cases should be heard without excessive delay
- all people should be treated equally unless objective differences justify otherwise
- there must be a respect for human rights
- and, of course, the state must abide by both its internal laws and its international obligations.
Not only should there be access to justice, but there must be adequate access to justice, in the sense that there be a fair and independent court system and the citizens must be realistically able to utilise it.
When I was a law student, I was very soon introduced to ‘the man on the Clapham omnibus’. That reasonable, very average, person who first made his appearance in Lord Justice Greer’s judgment in the 1932 case of Hall vs Brooklands Auto-Racing Club.
Say we were to explain to him the concept of the rule of law. His reasonableness would undoubtedly lend itself to agreeing with the concepts behind it — equality, justice and a state limited by law.
And then, say, we explained the current situation.
And then, let’s suppose, we ask our reasonable man — who by this time has likely got off the bus and begun hurriedly walking away — whether he believes we live under the rule of law? I expect he may say that unequal access to justice has the same effect as inequality before the law. Inequality before the law is not sustainable at all.
I am reminded of what US Supreme Court Judge Brennan said in 1956:
‘Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with, but injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the existence of free democracy is not imaginary but very real, because democracy’s very life depends upon making the machinery of justice so effective that every citizen shall believe in the benefit of impartiality and fairness.’
Therefore, the challenges facing the student of law today are enormous, it is exciting as well and enticing too. Great careers are there to be built.
But a great career can only be achieved through perseverance, commitment, and a passion for excellence in all that you do.
Excellence encompasses qualitative aspects such as a positive attitude, team spirit, critical thinking skills, values, innovations, governance and leadership.
Dear graduands, it is not how good you are, it is how good you want to be.
The ultimate goals one sets in life are important. Goals are of course for you to choose, but in choosing them remember values and morals are important. Other normative principles should be derived from them.
The generous citation read out as ‘the cause’ for the honour bestowed on me today, is a lifetime achievement.
A great and fruitful career is within your reach, only if you choose to learn from the experiences of those who have gone before you.
Recall Henry Wadsworth Longfellow’s words from “A Psalm of Life”
“Lives of great men all remind us
We can make our lives sublime
And departing, leave behind us,
Footprints in the sands of time.”
Footprints are made at different levels and vary in scope and intensity.
This takes place at the school level, in institutions of higher learning and in the larger community.
The University of Colombo, the oldest university in the island is a good example of an institution that has produced men and women who have made sufficient footprints in the sands of time. Men and women who have transformed the lives of individuals and shaped the society for better by investing in the skills of the younger generation and in being pivotal in driving long term growth.
It remains the responsibility and obligation of the university to make sure that footprints be made and that they stand the test of time. The older institutions are themselves growing larger with respect to student enrolment and staff deployment. New institutions are coming on board with greater financial resources. The end result is a challenge to maintain good quality in teaching and research. It calls for greater commitment and devotion. The university should be the heart that pumps new life into the society and the country at large.
By all accounts I am happy to recognise that the University of Colombo is meeting the challenges of intellectual and institutional promotion of teaching and research in admirable ways under the leadership of senior professor Lakshman Dissanayake, the vice-chancellor.