Sunday Times 2
Whither law and order of a sovereign people?
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Sovereignty of the people, constitutionally enshrined, is, in essence, a maxim of conduct or rule or principle which guides the agencies that hold authority. For law and order of the people the agencies need, then, to conduct the Sovereignty of the people as a working principle.
Sovereignty, therefore, requires positive action. The principle of sovereignty of the people is worked through the judiciary, the executive and the legislature. Jurisprudentially and in logical terms too, sovereignty implies the working of the given principle to the benefit of the people.
The idea is also that sovereignty of the people is an exercise to carry Law and Order of the people with it. This notion is lost to many. Law and Order is by itself a struggle. In plain terms, sovereignty of the people for law and order is a struggle with the agencies that exercise it. There is a failure in the struggle. Sovereignty of the people is usurped by these agencies and weakly legislated by Parliament. Law and Order then fails at the hands of the very agencies. Some explanation is necessary albeit in brief in the space.
The judiciary fails law and order in its law process when the task falls on it after police investigation. Police investigation is termed law enforcement. The judicial action following police investigation is not law enforcement. It is judicial action. This action of the courts can even nullify initial police action. The heavy percentage of cases which fail conviction is due to the judicial process; but blame is assigned elsewhere as customarily done. Benefit of the doubt is a shifty and elastic term useful to evade conviction. Further, laws delay is through manoeuvred delay, waste of time and inordinate expense. Law and order and sovereignty of the people, therefore, have to wait.
The number of Justice Ministry inquiries speaks only to the idea that laws delay is just a matter of resources. Resources of men and material are then forever in short supply. More courts, more judges, more prosecutors are the proclaimed remedies. The fact is that when more of it is given the more of it is asked for. The process feeds on itself. The problem is systemic. There are enough of laws in the world outside jurisprudence as, say the Parkinson law, the Boyle’s law, to explain the untoward practice beneath the law. Therefore, laws delay can at once be made and, logically, unmade by practices. But sovereignty of the people and their struggle for law and order continue to wait.
The executive comes down hard on police law enforcement directly. This is by way of interference. Executive intervention over police, for sure, is never to advance police investigation or law enforcement. Apparently, such executive interference brings in votes; the converse of executive intervention for encouragement to police investigation loses votes. Law and order and sovereignty of the people are thereby incidental or irrelevant to these considerations.
The legislature is equally remiss in its role as representatives of the sovereign people. Much of the criminal law legislation passed by Parliament is not in favour of the people or law and order. Instead, nearly the whole of the criminal law is enacted to suit the law professionals, the elite, not for the common people. In fact, such laws for the people are even resisted or reduced in effect on the law and order interests of the people. That has been the experience. Thus, for example, the1973 Administration of Justice Law was removed by Parliament in 1978 through the Ministry of Justice which itself processes the laws to be sent to Parliament. Law professionals control these processes at that point. The legislators therefore do not in fact serve as representatives of the people. The legitimate tasks as representatives of the people are completely subordinated to the interests of lawyers who drafted the laws sent to Parliament. Law and order for the sovereignty of the people is relegated thereby to near oblivion.
Together then, these agencies, the judiciary, the executive and the legislature when exercising their respective sovereign powers of the people, are not at one. Sovereignty of the people is thus drained down by the very agencies constitutionally instituted to exercise sovereignty of the people. What is then left of sovereignty of the people after much erosion has only to be collected at random.
The media might then have helped. That service too is not forthcoming. Law and order for the sovereignty of the people, as we have it, is therefore at a serious discount. The notes above recount, only in brief, the problems which beset the law and order task of the police for the Sovereignty of the People.
It has become obligatory that the sovereign people are made aware that what exists is ‘lawyers’ law, by the lawyers, for the lawyers and to hell with the sovereign people.’
An interesting exception to this trend needs to be related. Immediately with the 2019 Easter Sunday bombings the police got active. Police investigations proceeded uninterrupted by the legislature, the executive and the judiciary. Sovereignty of the people prevailed. This instance is an illustration of what police can do without interference. Unfortunately, however, just three weeks later, the Government found its voice. Then only was it that the appointment of Commissions and Committees followed. But these only served to hold back, the further action, in the accustomed way. Indictment is thus pending to this day, one and a half year later.
If such an ambience of police action is not to be, other means must be explored. Such is unorthodoxy. One such practice, nay a mantra, is that of a chant of a nidahas nidhos to dispose of much of the debris that clutters the law. They were unorthodox and illegal. Justice Minister Ali Sabry is, however, both intelligent and practical to suggest the eccentric idea that the overcrowding of the prisons can be reduced by releasing over two/three thousand prisoners by executive action outside the law.
This is a commendable though heretical initiative on the part of Minister Sabry. The clutter of the law in laws delay is made by the courts, not one given by others to courts. The Minster cannot subscribe to this openly for fear of contempt or some other sanction. Can Minister Sabry plead reality if he ever had to? But he alone with his intelligence and wisdom can conceive of this that Justice Ministers, in their numbers previously, could not even think of. And perhaps this idea has even the silent acceptance of those who cannot endorse it unabashed, even possibly the police. The nonconformist was better than the orthodox.
In the end, sovereignty of the people loses the Jurist Austinian characteristics as inalienable, illimitable and indivisible. Sovereignty of the people is frayed away by the agencies that exercise it. It is less than the classical notion of sovereignty when the principle inherent in sovereignty is not recognised. With one less the other gains; vice versa when the other gains the former loses. The issue, in plainer terms, is that sovereignty of the people stood high when judges of yore, parliamentarians of old, ministers and secretaries of days gone by, were at the helm. Then sovereignty of the people prevailed. Today such resources are at low ebb. Contempt and commiseration are therefore intertwined unlike in the distant past.
The only hope remaining is that the new Constitutional proposals will find a way for sovereignty of the people, and for law and order within sovereignty of the people.
(The writer is a Retired Senior Superintendent of Police. He can be
contacted at seneviratnetz@gmail.com;
TP 077 44 751 44.)