ISSN: 1391 - 0531
Sunday December 9, 2007
Vol. 42 - No 28
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Road blocks: The road ahead

The sudden (almost nonchalant) decision of the Supreme Court to declare road blocks placed at entry-points to cities and within cities 'illegal' has taken the country by surprise. To say that the Government is not amused is probably an under-statement.

From what our Political Editor says, it would seem that the Government is stunned by the decision, and tried back-room manoeuvres to have the move stalled, but to no avail. So they knew what was coming.

What is illegal is illegal, and Cicero's oft-quoted maxim from his published oration Pro Milone "inter arma enim silent leges" (in times of war, the law is silent) is a principle that could perhaps be used in certain situations, but not by this Government, given its cavalier attitude to human rights issues across the board.

There is a kind of déjà vu' in the chill air right now, rather reminiscent of the period shortly after the signing of the CFA (Ceasefire Agreement) in 2002 when the new Government at the time removed barriers and checkpoints and a sense of freedom prevailed.

The difference, however, is that we are right in the epicentre of an intensified struggle to eliminate the scourge of terrorism from the face of this country. The Government has made no bones about its intentions (one wonders whether all the bravado and chest-thumping are needed) to defeat the LTTE by sheer military might. And the LTTE reacts by deliberately targeting civilians to distract the Government's focus.

Indeed, the removal of barriers in 2002 and the picture now are in completely contrasting situations. In 2002, for all intents and purposes, the LTTE had placed its signature to a CFA. It may have had other designs in the long-term, but there was a temporary lull to its attacks.
The Supreme Court is of the view that road blocks, their illegality apart, serve no real purpose in a security sense, and only inconvenience the general public.

Ordinary people subjected to such harassment might readily agree and also argue that no road block in the world can stop the ruthless assassin from either slipping in -- or out -- as has been seen from the murder of Foreign Minister Lakshman Kadirgamar to the parcel bombing at a popular store recently.

The security establishment will counter-argue that these checks are a necessary deterrent to the free movement of terrorist groups and that they need to be intensified now, not abandoned.

The court has, however, not banned security checks per se, and despite the setback, the Government still has a duty to protect the citizenry, an unenviable task if there was one.
With some 200,000 vehicles entering Colombo each working day, one can just imagine the daunting challenge this presents. And yet, the Government cannot allow the terrorists to take advantage of the court ruling.

While it is the court's duty to ensure the Rule of Law prevails in a country even if democracy is a façade in many ways, it is the responsibility of the Government to find legal ways of doing its duty by the public. Of late, the Government has seen the Supreme Court as a convenient mechanism to pull its chestnuts out of the fire.

Due largely to the Government's own incompetence, the Supreme Court has increased its role in judicial activism -- settling strikes, giving guidelines for school entries and gas price hikes -- and taking on a whole range of activity in the Dean Ruscoe Pound school of jurisprudence, that would otherwise fall into the ambit of the Executive -- not the Judiciary. Pound, was the leader of the 'sociological jurisprudence' movement in America who argued for a pragmatic interpretation of law based on the manner in which the legal process actually worked.

Separation of powers as envisaged in the Constitution has got clouded to the extent that the Executive seems, in a sense, to have shifted from Fort to Hulftsdorp -- like in the days when it really did during the Dutch period centuries ago under Governor Hulfts.

And the Government seems content to accept 'governance' from Hulftsdorp. One would think that they have sub-contracted governance, or to use a more modern term, 'outsourced' it.
And to many, many ordinary people, they are none the worse for this. "It's a dirty job but someone's got to do it!"

But in the road-blocks and security checks issue, the court cannot be expected to protect the citizens from bombs and bullets. That onus the Government must accept, and go back to their drawing boards to come up with a plan that is both effective and legal.

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