Rajpal's Column

Of sanity, governance and the Rule of Law

The conference was on a different theme, but Mental Health and the rule of law is what's relevant in these our nationally schizophrenic times. 

"The chickens have come home to roost.'' So said Malcom X, in his initial reaction to the assassination of John F. Kennedy. Malcolm X had a way with his words, but the chickens had definitely come home to roost in Sri Lanka these past few days.

Continued indifference to the rule of law, has extracted its toll, despite the insipid denials that "all is calm'', and the shop was being minded. The government seemed to be constrained from getting even some of its more favourite and docile newspapers to desist from publishing stories of dissension, palace desertions and more.

All these symptoms may pass, but the malaise stays on, and the ongoing itinerary of crisis to crisis proves that the government, in Sarath Muttetuwegama's words used in a different time, "is insisting on creating its own troubles.''

It all begins at the beginning, with a political dispensation's scant disregard for the rule of law. When governments that flagrantly flout the rule of law, begin to unlearn such behaviour, it's often too late. What's true for UNP government's is true for PA governments as well.

"Decisions should be made bearing in mind "the respect for the rule of law." That's one of the basic principles of Mental health care law, as enunciated in the WHO document of Basic Principles of the Mental Health Care legislation.

It presupposes that laws are administered and implemented by mentally healthy persons, with respect for the rule of law in the first instance. "The applicable law is the law in force at the time in question, as opposed to retroactive or draft legal instruments.''

Very germane , to a dispensation that tends to ignore that the prevailing law is the law in the books, the law in the constitution, and not one that approximates to an imagined ideal used to achieve ulterior ends.

So, there. Pardon this incursion into the territory of governance and the administration of justice, as a precursor to discussing a conference on mental health legislation. But, it's a preamble. To administer the insane, a society's ruling elite should necessarily be within the bounds of sanity, and within the ambit of the Rule of Law. The debate at Hotel Lighthouse, opened up issues of the disadvantaged ( ie the mentally ill) in having recourse to their rights. "All persons have a right to the best available mental health care, which shall be part of the health and social care system.''

Sentiments, it was said repeatedly by the practitioners, that define things that are not achievable in the practical realm. Dr. Vijaya Chandra the Advisor for Health and Behaviour of SEARO New Delhi cautioned against the "rights approach to mental health care'', that would drive patients to court demanding "for the most expensive drug'' on the grounds that "all persons have a right to the best mental health care available.''

The rift on the issue between the rights activists and the medical practitioners, was obvious from then on. 

The inevitable comparison was with AIDS medication.

The fight is still on, as far as the AIDS and the pharmaceutical stand-off is concerned. 

But, the AIDS lobby is establishing principles that the drug companies with all the clout of the WTO behind them, are finding difficult to ignore.

Now, AIDS victims are closer to benefiting from generic drugs, and are certainly having more access, though very slowly and incrementally, to cheaper drugs. 

All this, not without having to agitate on the principle that "all persons have a right to the best health care available.''

Dr. Vijaya Chandra and others, who favoured a more "welfarist approach'' underscored in their arguments, the fact that patients do not have anything that approximates to the best mental available care, so far as mental health facilities are considered.

Dr. Nalaka Mendis, Professor of Psychiatry of the Faculty of Medicine, University of Colombo, for instance, talked about the ratios of available psychiatrists in Sri Lanka by region. The entire south for instance, has one or two psychiatrists, and the initiative to establish mental health care hospice in the south was thwarted by politicians who went on the basic principle that "mental health patients don't count in terms of votes.'' The facility was later created in the backwoods.

Perhaps it brings us back to the rule of law and the rights debate. The disadvantaged have rights; but their rights have to be harder fought for, due to the fact that a state tends to marginalise the disadvantaged. 

But, as begun at the beginning of this article, it also underscores, in some clearly inferential way at least, that the rights of the disadvantaged these days are becoming sacrosanct, and slowly justiciable. Then what of the rights for the larger mass, what of the Rule of Law in general? These rights are becoming that much harder to transgress. 

It's a lesson that a sane government learns, soon enough.

The Special Report

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