Good governance and Rule of Law not found anywhere in the world?

February 11, 2014

Is this statement correct? A certain worthy, of professed legal eminence, is quoted in the media as ha ing declared at an institute of higher learning that !good go ernance and the "ule of #aw are ery nice words, but I am not quite sure that they are found anywhere in the world$% It would be worthwhile to critique this comment further& 'e are li ing in a nation in which the (onstitution declares that )*he "epublic of +ri #an,a shall gi e to -uddhism the foremost place and accordingly it shall be the duty of the +ate to protect and foster the -uddha +asana, while assuring to all religions the rights granted by Articles 10 and 14.1/ .e/&0 1(hapter II Article 2&3 *he -uddhist e4pression of the concepts of the "ule of #aw and good go ernance are manifested in the 5asa "a6a 5harma, the 10 "oyal 7irtues, the -uddhist ideal of good go ernance& *he 10 irtues of go ernance are8 5ana8 It is the duty of the rulers to loo, after the welfare of needy sub6ects and to gi e them food, clothing and other necessities of life& +ila8 -eneficence or sharing 9 the rulers must conduct himself in pri ate and public life in an e4emplary manner&

:ariccaga8 5onations 9 the grant of pri ileges by the rulers to those who ser e the nation loyally, ac,nowledging their loyal ser ice and encourage all ser ants of the public to perform in an e4emplary manner& A66a an8 ;prightness, the rulers must be absolutely straightforward, ne er ta,ing recourse to any croo,ed or doubtful means to achie e their ends& <a66a an8 Impartiality, gentleness, the rulers% straightforwardness and rectitude, will require firmness, but this should be tempered with gentleness, and not be o er harsh and cruel& A harmonious balance is required between gentleness and firmness& *apan8 (omposure, the rulers must ,eep the fi e senses under control shunning e4cessi e indulgence, follow the middle path& A,,odha8 =on hatred, rulers should not harbour grie ances and act with forbearance and lo e& A ihimsa8 =on iolence 9 rulers must practice non iolence to the greatest e4tent that is reconcilable with the obligations of rulers& >hanti8 Forgi eness, patience, rulers must conduct themsel es with patience, courage and fortitude, in 6oy, in sorrow, in ictory and defeat, act with magnanimity, calmness and dignity& A irohata8 =on re engefulness, non indicti eness, non enmity and friendship 9 rulers must not indulge in !bheda% 9 di ide and rule 9 acting always in a spirit of amity and bene olence& In -uddhist philosophy it is emphasised that the e il and the good of a people depends on the beha iour of their rulers, and for the good of the people the 10 "oyal 7irtues 9 5asa "a6a 5harma are to be practiced by the rulers& Further a irtuous ruler should practice :riya acana 9 ,indly speech and not use intemperate language& Artha (hariya 9 the spirit of ser ice must also be culti ated, this includes li ing a simple life and not gi en to e4cesses 9the <adyama :ra ipada a 9 the middle path so fundamental to the -uddha%s teaching& +amanatmata 9 equality, while retaining the e4alted position of being a ruler, a ruler must consider him in no way superior to the ruled and dispense 6ustice fairly, without fear or fa our& =o space to e4ercise absolute power

In the -uddhist tradition in particular, and in ancient Asian go ernance in general, there was no space for the e4ercise of absolute power by a ruler& :ower was always limited, by con ention, by tradition and by philosophical belief and religious precept& ?4amples of abuse of power and tyrannical rule are aberrations which reinforce the generality of the situation that rulers were sub6ect to conditionality of go ernance, the iolation of which created resentment, re olt and regime change& Indeed >ing <ahanama of #an,a, in 42@ A&(&, wrote to the ?mperor of the <iddle >ingdom .(hina/, !the +on of Aea en,% in these terms, which well reflects the philosophy and principles which go ern the conduct of the ideal -uddhist ruler8 !Bur ancient ,ings considered hitherto the practice of irtue as their only dutyC they ,new how to rule without being se ere and honoured the *hree DewelsC they go erned and helped the world, and were happy if men practiced righteousness& For myself I desire respectfully, in concert with the +on of Aea en, to magnify the good law in order to sa e beings from the e ils of continued e4istence&% *he <arquess of Eetland, one time 7iceroy of -ritish India, in the introduction to his boo, !#egacy of India% says8 !'e ,now indeed that political science 9 Arthashastra in +ans,rit 9 was a fa ourite sub6ect with Indian scholars some centuries before the (hristian era& *he +ocial (ontract as the origin of ,inship is discussed in the now famous wor, attributed to >autilya, the (hief <inister of the ?mperor (handragupta, about the year F00 -&(& And it would seem that the people who contracted for a ,ing in these early days did so in order that there should be some e4ternal authority capable of ensuring that the laws and regulations of the arious corporate bodies which came into e4istence were respected& )*he >ing,0 wrote Ga6na al,ya, )must discipline and establish again on the path of duty all such as ha e erred from their own laws, whether families, castes, guilds or associationsH&0 It is notable that tendency towards self go ernment e idenced by these arious forms of corporate acti ity recei ed fresh impetus from the -uddhist re6ection of the authority of the .-rahmin/ priesthood and further by the doctrine of equality as e4emplified by its repudiation of caste& It is indeed to the -uddhist boo,s that we ha e to turn, for an account, of the manner in which the affairs of these early

e4amples of representati e self go erning institutions were conducted& And it may come as a surprise to many to learn that in the Assemblies of the -uddhists in India two thousand or more years ago are to be found the rudiments of our parliamentary practice of the present day&% Further the principles of good go ernance, which results in the right thing being done the right way at the right time would include8 participation of all groups, including ci il society, in the process of go ernment without e4clusion or discrimination, the primacy of the "ule of #aw and equity in the process of in estigation, dispute resolution and ad6udication, transparent access to information, responsi eness to the needs of the go erned within a reasonable timeframe, tolerance of different points of iew, consultation, compromise and consensus oriented administration, effecti eness and efficiency in a sustainable manner, the accountability of public, pri ate and ci il society authorities to their respecti e sta,eholders& In +ri #an,a we are the fortunate heirs to a legal system which has been enriched by the customs and traditions of legal and customary practices from the world o er& *he religious influences of -uddhism, Ainduism, Islam, (hristianity, the personal laws of the >andyans, the Daffna *amils, the <uslims and the <u,,uwas and the legal rules of the "oman 5utch law, ?nglish law and ;nited =ations *reaties and (on entions& "ule of #aw *he late *om -ingham, who became a life peer as -aron -ingham of (ornhill, accepted as the greatest ?nglish Dudge since 'orld 'ar II, was successi ely <aster of the "olls, #ord (hief Dustice of ?ngland and +enior #aw #ord of the ;nited >ingdom, in his monumental wor, !*he "ule of #aw%, suggested eight principles which form the core ingredients of the "ule of #aw& *hey are8 *he law must be accessible and so far as possible intelligible, clear and predictable& Iuestions of legal right and liability should ordinarily be resol ed by application of the law and not the e4ercise of discretion& *he laws of the land should apply equally to all, sa e to the e4tent that ob6ecti e differences 6ustify the differentiation& <inisters and public officers at all le els must e4ercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred , without e4ceeding the limits of such powers and not unreasonably& *he law must pro ide adequate protection of fundamental human rights& <eans must be pro ided for resol ing, without prohibiti e cost or inordinate delay, bona fide ci il disputes which the parties themsel es are unable to resol e& Ad6udicati e procedures pro ided by the state should be fair&

*he "ule of #aw requires compliance by the state with its obligations in international law as in national law& #ord -ingham succinctly defined the "ule of #aw as follows8J% all persons and authorities within the state, whether public or pri ate, should be bound by and entitled to the benefit of laws publicly madeHand publicly administered in courts%& Bn a plain reading of the abo e, it is clear that there is a common golden thread running through the 5asa "a6a 5harma, principles of good go ernance and the "ule of #aw& *he thread is, plainly stated, )limitations on the authority of the ruler and the protection and strengthening of the rights of the sub6ect0& :rof &+&A& de +mith, 5owning :rofessor of the #aws of ?ngland at (ambridge ;ni ersity, in his leading wor,, (onstitutional and Administrati e #aw, says, on the "ule of #aw8 !Bne can at least say that the concept is usually intended to imply .i/ that the powers e4ercised by politicians and officials must ha e a legitimate foundationC they must be based on authority conferred by lawC and .ii/ that the law should conform to certain minimum standards of 6ustice, both substanti e and procedural& +ir Alfred 5enning, later Dustice #ord 5enning <aster of the "olls, of famous legal repute and intellect, in his Aamlyn lecture, Freedom under the #aw, dealing with the powers of the rulers, says8 !All that the courts can do is to see that the powers are not e4ceeded or abused& -ut this is a most important tas,& )All power corrupts& *otal power corrupts absolutely&0 And the trouble about is that an official who is the possessor of power often does not realise when he is abusing it& Its influence is so insidious that he may belie e that he is acting for the public good when, in truth, all he is doing is to assert his own brief authority& *he Dac,JinJoffice ne er realises that he is being a little tyrant&% +ri #an,a +ri #an,a is a proud heir to all these strong legal traditions, which gi e primacy to the "ule of #aw and good go ernance& *o ha e a person who professes to hold high legal office to declare that he is not sure that these things are !found% anywhere surely only e4poses the limits of his ,nowledge and his dictatorial and lapdog tendencies& *here also has been some discussion, in +ri #an,a recently, of a +inhala -uddhist tradition of bene olent absolute rulers, with unlimited power, in our past history& Is this tenable? :rof& #&+& 5ewara6a in her pathJbrea,ing boo, !*he >andyan >ingdom, 1K0KJ1KL0,, says of the +inhala -uddhist ,ing, at +en,adagala >ande <ahanuwara8 !*o foreigners the power of the ,ing seemed unchallenged& *he ,ing, >no4 declared, )"uleth Absolute and after his own 'ill and :leasureC Ais own Aead being his only (ounsellor&0 5%Byly remar,ed that )the ministers ad ise but cannot control his 'ill0& In

practice howe er, the >andyan monarchy was far from being an unfettered personal despotism& It followed the traditions of the Indian monarchy which, in spite of the quasi religious sanctity and the great authority ested in the personality of the ruler, which was in no way and absolute monarchy& *he >andyan ,ing e4ercised supreme power, but his power was not personal and it was hedged in, by safeguards against abuse& *he most relentless of these chec,s was sirit, the con entions of the country, which e ery ruler had to follow, and which if iolated would turn popular opinion against him&% *he 5asa "a6a 5harma and related rules were a ery important part of these con entions& :rof& 5ewara6a further says8 !*he ,ing was e4pected to a ail himself of the ad ice of his ministers and before any inno ations of importance were introduced it was customary to consult the chiefs and not infrequently the chief mon,s also& *he royal council consisted of the two Adigars, the 5isa as, the <aha <ohottala or chief secretary and the "ate "alas& HIf on any occasion the members of the council made a unanimous representation to the ,ing, it was laid down that the ,ing should uphold their point of iew&% ? en the present, much ilified, criticised, but most times, unsurprisingly strengthened, usedMabused and supported by its erstwhile critics, when in power, the constitution of +ri #an,a, ends with the following in ocation8 5e o 7assatu,alena sassasampattihetu ca phito bha atu lo,o ca ra6a bha atu dhammi,o% .<ay the rains be on time, may the farmers ha e successful har ests, may the ruler be 6ust, and by these happenings may the people prosper&/ +o, the conclusion is ine itably that power is ne er unlimited, nor absoluteC it is and always has been constrained by the "ule of #aw and the principles of good go ernance& It certainly may be argued that it can be questioned whether good go ernance and the "ule of #aw can be reached to a 100N in any 6urisdiction at any gi en time& *he reality and immaturity of the democratic political process may certainly cause aberrations& -ut that does not mean that we should not stri e to achie e it and that those whose duty it is to protect the ordinary citiOens% basic fundamental and human rights from abuse by the ?4ecuti e and the #egislature can go to seats of higher learning and moc, these concepts and e4press puerile doubts as to whether they are !found anywhere in the world%& *he statement only e4poses the spea,er%s pathetic and sla ish

mindset& *he 5asa "a6a 5harma, the principles of good go ernance and the "ule of #aw are entrenched into +ri #an,a%s constitutional practice, and must be upheld& It is in the natural order of things that, e erything is timeJbound, e en an autocrat%s power& #et%s gi e the last word to undoubtedly the most successful strong man of Asia 9 retired :rime <inister #ee >uan Gew of +ingapore, the eritable doyen of all autocrats who ruled with an iron hand, with no concerns for principles of good go ernance or the "ule of #aw& #i,e <ahathir of <alaysia, +uharto of Indonesia and =e 'in of -urma, he was a proponent of Asian alues, which ga e priority to national issues o er indi idual freedoms& *o them the "ule of #aw and principles of good go ernance were Dudeo (hristian alues, which were not applicable to Asia& #ee at the end of his days writes8 !H'hat is ne4t, I do not ,now& =obody has e er come bac,& I%m reaching @K, trying to ,eep fit, presenting a igorous figure, and it is an effort, and is it worth the effort? I 6ust laugh at myself trying to ,eep a bold frontH I%m not saying that e erything I did was right, but e erything I did was for an honourable purpose& I had to do some nasty things, loc,ing fellows up without trial& (lose the coffin, and then decide& *hen you assess me, I may still do something foolish before the lid is closed on me&% .*he writer is a lawyer, who has o er F0 years of e4perience as a (?B in both +tate and pri ate sectors& Ae retired from the office of +ecretary, <inistry of Finance and currently is the <anaging 5irector of the +ri #an,a -usiness 5e elopment (entre&/