Opinion

Valorising mythology to invalidate known history

Published

5 years ago

2020/10/17

By ROHANA R. WASALA

Feisal Mansoor (‘Muslims and ban on cattle slaughter’/The Island/October 9, 2020) opens his piece with a quote from Mahatma Gandhi, obviously taken from the web: “The greatness of a nation and its moral progress can be judged by the way its animals are treated.” However, there is some doubt about the authenticity of that alleged Gandhi quote, because it is not traceable to his writings or his speeches according to quote-researchers; besides, he was usually better known for his great concern for the weak members of human society than for animals. But even if someone just imagined it, there’s no harm done, for the expression of concern for animal welfare attributed to Gandhi, can be easily supported by what we know about him as a champion of non-violence. But the problem here is this: Whether genuine or fake, the Gandhi quote has little or no relevance to the truth that FM’s arbitrary opinions about Sri Lanka’s ‘ancient culture’ misrepresent or conceal, in favour of something else. He seems to completely ignore the millennia long recorded history of the island, which is almost entirely coterminous with its established Buddhist religious culture and is inseparable from it. (Incidentally, the spirit of secularism and democracy that it encourages in governance is a distinctive feature of the country’s majority Buddhist culture; but this is something difficult for most believers of other religions and Sri Lanka-baiters to understand or appreciate.) The greatness of our culture is that it is absolutely tolerant and accommodating towards minority cultures, subject to the implicit legitimate condition that they don’t try to make undue inroads into its space or to subvert it in other ways. To me it looks like FM’s statements are meant to distort, rubbish, and obviate, if possible, Sri Lanka’s ancient Sinhala Buddhist cultural heritage. Is the Gandhi quote meant to imply that our nation has no claim to greatness, and that our treatment of animals falls short of required moral standards observed in civilized countries?

Having said that, it must be stated with emphasis that it is perfectly alright for FM to try to share his personal convictions with others. That is his right as a free citizen. I am enjoying here the same right to articulate my reaction as a Sri Lankan to his views about the ancient history and culture of our beloved Motherland.

First of all, let’s be clear about this: At the very inauguration (i.e., in official terms) of the Buddha Sasana in the island of Lanka, Buddhist missionary Arhant Mahinda Thera admonished the monarch of the land king Devanampiya Tissa in 236 BCE (2256 years ago) thus as recorded in the Mahavamsa (Chapter XIV):

“O great king, the beasts that roam the forest and the birds that fly the skies have the same right to this land as you. The land belongs to the people and to all other living things, and you are not its owner but only its guardian.”

Isn’t this considerably before today’s animal rights protectors, animal ‘status’ guarantors, animal welfare standard maintainers, and various other ‘a fair deal for animals’ worriers, represented in organizations that annually celebrate the World Wildlife Day (March 3), World Animal Day (October 4), etc., at some cost, started talking about the subject?

Compassionate treatment of all sentient beings is an ideal that people brought up in our culture, take for granted. Of course, there are instances where the ideal is observed in the breach. That is human nature. A whole society should not be judged on the basis of the behaviour of a few individuals, who could themselves be victims of circumstances.

FM’s first paragraph is an attempted fusion of the Ravana myth and his religious beliefs, to the exclusion of the historically factual Buddhist element. That Ravana flew his ‘dandu monara yanaya’ (wooden peacock aircraft) and abducted Seetha from what is now called India, is a story. Not even children take that as proven history, but it is a wonderful story, wherever or whenever it originated. Talking monkeys, animal fortune tellers, and other human personality attributed birds and beasts are common in literature in all cultures. The stories that compose our Jataka Potha are shared property in various North Indian literary traditions. The Sanskrit ‘Panchatantra’ from India, interweaves five skeins of moral traditions into a single text composed of stories in which so many animals feature, invested with human qualities. We have a number of talking, philosophising, admonishing birds in Geoffrey Chaucer’s Canterbury Tales.

FM writes: “As Creation is the supreme force in the universe, the beneficence of life and its comprehension through love, is to facilitate as many expressions of life as possible.” That belief is not shared by the predominant religious culture of our country, but is not targetadly criticised or attacked so as to hurt others’ religious beliefs or sentiments. There is evidence that our ancestors ‘worshipped’ the sun as the source of all life, especially plant life, hence important for agriculture. If they deified the sun, it was very meaningful. That ancient religious tradition survives today in the secular Surya Mangalyaya or the Sinhala Aluth Avurudda, held in the month of Bak (Felix/Lucky) in the Sinhala calendar. The ignorant insensitive British colonial authorities arbitrarily renamed it Sinhala Hindu New Year for their own purposes. Tamils and Sinhalese can and do live peaceably together, while observing their separate culturally distinctive festivals. Whether our ancestors called themselves Aryans because they were sun worshippers is highly improbable. Aryans were a white skinned race.The Sinhalese are not. It is not impossible that the Swastika – a sign that symbolizes the Sun was later appropriated by those white people, including Adolf Hitler. The legendary Vijaya of the Mahavamsa could have descended from such a tribe, but that origin story is not accepted today. Newly available archaeological evidence provides proof that our ancestors were a civilised a people (with their pure dark skin) even during the time of the Buddha, and that there were lay Buddhists and Buddhist monks before the arrival of Arahat Mahinda; whose coming appears to have been the result of an official diplomatic mission; he and his retinue were, most probably, royal emissaries from Emperor Asoka’s court as much as Buddhist missionaries. (Read between the lines, the Mahavamsa passages support this impression.)

FM’s reference to Aldous Huxley needs a comment. In the Maha Parinibbana Sutta, the Buddha tells the monks: ‘Atta dipa viharatha’ – ‘Be islands unto yourselves’, meaning you are your own saviour, that is, ‘Realise Nibbanic Bliss, put an end to samsaric suffering, through your own effort’ (which is not beyond you, if you are diligent enough). Writer and brilliant intellectual Aldous Huxley might have independently arrived at this island metaphor to describe his own illusion of self, elusive self-identity. The contemplative W.B. Yeats, himself no mean intellectual, expressed it as ‘How can we know the dancer from the dance?’ It is also possible that both of them came across this idea in Buddhist literature.

Apparently, FM mistakes this profound idea for selfish self-absorption. In his confusion, he imports the phrase ‘enlightened self-interest’ that Adam Smith (considered the ‘father of modern economics’) coined to express his idea that by pursuing one’s own economic benefit one ultimately contributes to the good of others as well, without probably intending to do so. (But it can be thought that he tried to elaborate it as a morally acceptable concept, rather than as a coldly amoral economic one.) However, that is something very different from the Buddhist idea of working for the benefit and wellbeing of others without expecting a reward, generosity or altruism.

FM has written:

“As such, enlightened self-interest is the only personal inquiry we can make, with the all- important caveat that in our self-discovery we may not interfere with anything else’s self-discovery.”

He may be seen as giving idiosyncratic twists to the terms ‘enlightened self-interest’ and ‘self-discovery’, which are actually technical terms in their respective characteristic contexts. FM also makes a confusing verbal medley out of words like ahimsa, Dhamma, and Mahasammata. These are words charged with meaning and emotion for Buddhists. ‘Mahasammata’ (the Great Elect/the Universally Chosen One/The People’s Choice) occurs in Chapter II of the Mahavamsa as the earliest genealogical ancestor of the Buddha (and humankind, probably) who lived countless aeons ago. For Sinhalese Buddhists ‘Mahasammata’ is not a historical figure; he is the legendary first king on earth. In the Agganna Sutta (On Knowledge of Beginnings) the Buddha mentions Mahasammata as the first ruler who was appointed, based on his handsome appearance and moral strength, by common consent, to rule over the group of rice growers that was the loosely formed human society then. He was tasked to prevent stealing, to punish the miscreants by banishing, etc. Mahasammata was given a share of the rice crop as payment for his service. Actually, the Agganna Sutta can be interpreted as a scientific account of an alternately expanding and contracting universe, and a gradually evolving earth; and much later anatomically modern humans and organized human societies emerging on earth. There is no talk of a creator or creation, which FM takes for granted. Dharma is what the Buddha preached. Ahimsa is the ideal of nonviolence that is common to most Indian religions, including principally, Hinduism, Jainism, and Buddhism.

Next, FM quotes two passages from the book ‘Portuguese Encounters with Sri Lanka and the Maldives’ edited by C.R. de Silva, Ashgate, 2009, to assert “that there was no slaughter of cattle in Lanka prior to colonisation”. It is ridiculous in this trivial context to quote from an eminent historian like the professor mentioned. These encounters took place in the 16th to 17th centuries. The book is a scholarly collection of writings taken from Portuguese histories and archives in translation combined with those from local sources. Publishers say: “These documents contribute to the growing understanding that different groups of European colonizers – missionaries, traders and soldiers – had conflicting motivations and objectives. Scholars have also begun to emphasize that the colonized were not mere victims but had their own agendas and that they occasionally successfully manipulated colonial powers.” (I took this extract from Google.com- RRW)

So, the book shows that the natives of these countries matched those invading European interlopers bent on ‘temporal and spiritual conquest’ in their cunning and countervailing skills. They were not half-civilized savages. By the way, I don’t think FM found himself nodding in agreement when reading sentences like the following written by an ignorant Portuguese scribe:

“… In this country there are many false beliefs sown by the devil, and to eradicate them there is a need for much time and trouble…..” (This must be a reference to local Buddhist and Hindu religious beliefs of the time; but the colonizers were too uneducated and uncultured to understand that Buddhism and Hinduism are not ‘religions’ in their sense of the term, and that religion in the colonizers’ sense was, as it still is, a facile superstition to Buddhists. – RRW)

“They (some native people who didn’t kill even the meanest of creatures) do not eat bread, however hungry or needy they might be. Their food is made up of the leaves of a certain creeper (betel leaves) that climbs other trees like ivy. These leaves are smeared with the same kind of lime that they use for whitewashing their houses…”

“There is another class of people that eats fowl and wild boar and deer, but does not eat the flesh of cows, since they believe their souls enter into cows after death; they will never kill a cow and eat its flesh…”

It looks like FM has missed this book: ‘A 16th Century Clash of Civilizations: The Portuguese Presence in Sri Lanka’ by Susantha Goonatilake, 2010. It gives a clear assessment of the effects of the Portuguese colonial presence in our country, which was actually ahead of those European invaders in terms of human civilization. The Portuguese went to Sri Lanka in compliance with a papal bull.

FM makes extremely fallacious claims like the following about his fictitious ‘Lanka of Mahasammata’:

“A vocational caste system handed down secrets to successive generations, in a system where one’s knowledge was one’s wealth, with the Divine as the Supreme Master of one’s craft, one performs one’s duty with an aim to perfection in union of mind and spirit so each attempt brought one closer to the Ultimate Prize.” (Divine as the Supreme Master of one’s craft, Ultimate Prize, What are these?)

“In a land ruled by the Unseen King, in both metaphor and practise, the King embodies Mahasammata and sets the standard for the people”. (There was no Mahasammata in our country’s history. I explained the ‘Mahasammata’ concept above. Who is this Unseen King, FM? Surely a figment of your imagination?)

“The people know that if they live in dhamma, Dhamma would protect them, and the land would be safe”. (This is a misinterpretation of the piece of wisdom which runs in Pali: ‘dhammo have rakkati dhammacarim’ ‘The Dhamma protects the one who lives by the Dhamma’. There’s no protective magic or divine intervention here. But don’t take it literally. You may be sure you live according to the Dhamma. But be mindful enough not to stand in front of an oncoming train.)

The rest of FM’s article makes even less sense. From this point onwards, I fail to find anything in FM’s article worth talking about. The next to nothing he has to say about the subject proposed in his title is: ” I believe that as a Sri Lankan Muslim, it is incumbent on me to respect the mores of my compatriots and to live in a way that will lead to greater social cohesion, amity and unity of purpose…” That is a harmless thought, but I for one do not believe that pre-colonial Sri Lanka was paradise on earth. Besides, that sentiment runs in the face of what FM has been trying to prove to the very end.

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Opinion

Illegal Bus Halt at Gate Number 11 of NHSL

Published

21 hours ago

2026/03/9

Thilina Walpola

There is an unofficial bus halt at Gate Number 11 of the National Hospital at the 90-degree bend at the Prof. Nandadasa Kodagoda Mawatha (Old Norris Canal Road) which creates traffic jams at peak hours. Especially at the school opening and closing times at Carey College and hospital visiting hours.

Prospective passengers stand by the bend and then the busses stop suddenly on the middle of the road. The motorcycle in the picture is put into danger. The next bus halt is a few yards further near Carey College and Medical College Junction.

The problem is that illegal practices such as these, end up as approved procedure in our neck of the woods!

It must be nipped in the bud.

G. Fernando

Opinion

Naval hostilities close to a neutral coastal state: Legal assessment of a submarine attack on an Iranian warship near Sri Lanka

Published

21 hours ago

2026/03/9

Thilina Walpola

SLN rescue operation to save the IRIS Dena survivors of the US submarine attack. (Handout picture from the government of Sri Lanka)

A submarine attack on an Iranian destroyer proximate to Sri Lanka represents more than a discrete naval engagement; it signals a potential horizontal escalation of conflict into the wider Indian Ocean Region (IOR). Historically, confrontations between Iran and Western powers have been largely confined to the Persian Gulf and adjacent regional waters. A strike near Sri Lanka, however, shifts the operational theatre from a semi-enclosed regional sea into the open Indian Ocean. This globally vital maritime space encompasses critical trade routes, energy supply corridors, and strategically sensitive naval zones.

This geographic expansion carries multiple strategic implications. First, it demonstrates the long-range maritime strike capabilities and blue-water operational reach of the belligerent forces. Second, it functions as a form of deterrence signalling, conveying a willingness to project force beyond traditional conflict zones. Third, it widens the theatre of operations, increasing the probability of third-party entanglement and amplifying regional instability.

Beyond its immediate military and strategic dimensions, the incident raises complex legal questions under both jus ad bellum—the body of law governing the use of force between states—and jus in bello, encompassing international humanitarian law applicable to armed conflict at sea. The central questions addressed in this paper are:

a. Lawfulness of Force:

Whether the use of force against the Iranian warship was lawful under the United Nations Charter, including considerations of self-defence and Security Council authorisation.

b. Compliance with International Humanitarian Law:

Whether the attack adhered to the principles and norms of international humanitarian law governing naval warfare, including the lawfulness of the target, proportionality, distinction, and obligations toward shipwrecked personnel.

c. Neutrality and Coastal State Rights:

Whether Sri Lanka’s rights and obligations as a neutral coastal state were violated, particularly within its territorial sea and Exclusive Economic Zone (EEZ).

d. Operational and Geostrategic Implications:

The broader implications of conducting military operations within or near neutral maritime zones, and the interplay between legal permissibility, maritime security, environmental obligations, and regional stability.

These questions form the analytical framework that will guide the discussion throughout this paper, providing a structured lens for examining the legal, humanitarian, and strategic dimensions of the incident.

Jus ad Bellum and Jus in Bello:

Legality of the Use of Force

The legality of a submarine attack against a commissioned warship during an armed conflict must be assessed within a structured framework of international law comprising the jus ad bellum regime under the United Nations Charter, the corpus of international humanitarian law (IHL), and customary principles of naval warfare as reflected in the San Remo Manual on International Law Applicable to Armed Conflicts at Sea.

At the threshold level, the UN Charter governs the lawfulness of the use of force between states. Article 2(4) establishes a general prohibition on the threat or use of force against the territorial integrity or political independence of any state, subject only to narrow exceptions. These exceptions include the inherent right of self-defence under Article 51 and actions authorised by the United Nations Security Council under Chapter VII.

Accordingly, if an Iranian warship were torpedoed by a submarine, the attacking state would be required to demonstrate that the action was undertaken either pursuant to a valid claim of self-defence, necessitated by an armed attack or imminent threat, or as part of an already existing international armed conflict. Absent such justification, the attack could constitute an unlawful use of force in violation of the Charter’s collective security framework.

Where an international armed conflict is already in existence, the analysis shifts from jus ad bellum to Jus in bello, namely the rules governing the conduct of hostilities.

Jus in bello

: Naval Warfare and Attack Against an Iranian Naval Ship

Where an international armed conflict exists between the United States and Iran, the analysis shifts to jus in Bello. Commissioned warships form part of a state’s armed forces and constitute lawful military objectives. Under customary naval warfare law, as reflected in the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, enemy warships may be attacked, including by submarine-launched torpedoes, without prior warning. An Iranian destroyer operating as part of Iran’s navy would therefore constitute a legitimate military objective in principle.

However, the legality of a torpedo attack by a United States submarine remains subject to the foundational principles of international humanitarian law, including distinction, proportionality, military necessity, and precautions in attack. The principle of distinction requires that the target be military in nature; proportionality prohibits attacks expected to cause incidental harm excessive in relation to the anticipated military advantage; and military necessity demands that the force employed be directed toward achieving a legitimate military objective.

These obligations are particularly significant in maritime theatres characterised by dense commercial traffic, such as the sea lanes south of Sri Lanka. Incidental harm to neutral merchant vessels, offshore installations, or third-state interests must therefore be carefully assessed in relation to the anticipated concrete and direct military advantage.Submarine warfare, though technologically sophisticated and strategically consequential, remains subject to these enduring normative constraints, which seek to balance operational effectiveness with humanitarian considerations in the maritime domain.

Customary humanitarian law further requires that feasible measures be taken to search for and rescue the shipwrecked, wounded, and dead following an engagement. In this respect, any action by the Sri Lanka Navy to rescue surviving sailors and recover bodies from the destroyed vessel represents a prudent and legally consonant exercise of humanitarian responsibility. Such conduct reflects long-standing maritime tradition and aligns with the duties recognised under the law of armed conflict and the broader law of the sea, without compromising Sri Lanka’s neutral status.

Sri Lanka’s Legal Position Concerning the Torpedoed Iranian Vessel

Sri Lanka’s legal position is largely determined by the maritime location in which the submarine attack occurred. Should the hostilities have taken place within Sri Lanka’s territorial sea, defined as extending up to 12 nautical miles from the baseline, such conduct would constitute a breach of Sri Lanka’s sovereignty and a violation of the law of neutrality, which forbids belligerent states from engaging in hostilities within neutral waters and imposes a duty on the coastal state to prevent such actions within its jurisdiction. In that circumstance, Sri Lanka would be entitled to issue a diplomatic protest and potentially pursue reparative claims.

By contrast, as the engagement took place within Sri Lanka’s Exclusive Economic Zone (EEZ), the analysis is more nuanced under the United Nations Convention on the Law of the Sea. The EEZ confers sovereign rights for resource exploitation rather than full sovereignty, and prevailing state practice accepts that military operations, including naval manoeuvres, are not per se unlawful in another state’s EEZ. While such an engagement would not automatically breach international law, it would nonetheless generate significant security concerns, including risks to navigational safety, potential environmental damage, and heightened regional instability. Should the sinking result in oil discharge, hazardous material release, or debris affecting shipping lanes, obligations under UNCLOS to protect and preserve the marine environment would be engaged.

Although the Rio Declaration on Environment and Development does not explicitly regulate armed conflict, its principles highlight an increasing expectation for states to protect the environment during hostilities. Similarly, UNCLOS mandates that states protect and preserve the marine environment. Consequently, should the sinking of the Iranian destroyer cause an oil spill, the release of hazardous materials, or navigational hazards, specific environmental liabilities would be triggered. Strategically, a submarine strike near Sri Lanka signals more than a discrete tactical engagement. It reflects the projection of great-power naval capabilities into a strategically sensitive maritime space through which a substantial proportion of global trade transits.

Sri Lanka occupies a pivotal geostrategic position astride the principal East–West Sea Lines of Communication linking Gulf energy supplies, East Asian manufacturing centres, and European markets via the Suez Canal. A substantial proportion of global container traffic transits south of the island, rendering these waters acutely sensitive to instability. Even a limited naval engagement can elevate war-risk insurance premiums, disrupt commercial routing, and indirectly affect port operations in Colombo and Hambantota.

From a jus ad bellum perspective, geographic expansion does not in itself render hostilities unlawful; yet it complicates assessments of necessity and proportionality and increases the risk of escalation affecting neutral states.

The torpedoing of an Iranian naval vessel in maritime zones proximate to Sri Lanka necessitates a carefully layered legal assessment situated at the confluence of jus ad bellum, jus in bello, and the law of the sea. As this paper has demonstrated, the legality of the incident ultimately turns on four interrelated determinations:

(a) whether a lawful basis for the use of force existed under Article 51 of the Charter of the United Nations, grounded in self-defence;

(b) whether the attack complied with the principles of distinction, proportionality, and military necessity under international humanitarian law;

(c) whether the engagement occurred within Sri Lanka’s territorial sea, thereby infringing its sovereignty and violating the law of neutrality; and

(d) whether the obligations owed to survivors, shipwrecked personnel, and the marine environment were respected in accordance with the law of armed conflict at sea and relevant maritime conventions.

If the attack did not occur within Sri Lanka’s territorial sea, it would not amount to a violation of sovereignty or a breach of the law of neutrality capable of engaging state responsibility on that ground.

By contrast, where the engagement occurred beyond the territorial sea whether within the Exclusive Economic Zone or on the high seas prevailing interpretations of the law of naval warfare, reinforced by consistent state practice, suggest that the operation may be regarded as legally defensible, provided that the cumulative requirements of necessity, proportionality, distinction, and humanitarian obligation were satisfied.

Nevertheless, legal permissibility does not equate to strategic prudence. The deployment of a United States submarine to conduct kinetic operations in proximity to a neutral coastal state within the Indian Ocean underscores the increasingly complex convergence of naval power projection, humanitarian norms, environmental obligations, and coastal state rights within the contemporary maritime domain.

Even where consistent with international law, the extension of submarine warfare into the wider Indian Ocean carries destabilising implications for regional security, commercial shipping, and the safety of neutral coastal states situated along critical sea lines of communication. The geographic expansion of hostilities into this maritime space heightens the risks of miscalculation, escalation, and unintended third-party involvement.

For Sri Lanka, the incident underscores the delicate equilibrium between maintaining neutrality, safeguarding maritime security, and upholding the international legal order. The actions undertaken by the Sri Lanka Navy in conducting rescue and recovery operations for surviving sailors and deceased personnel reflect the discharge of well-established humanitarian duties under international law and exemplify responsible conduct at sea.

Ultimately, this episode illustrates the increasingly complex convergence of naval power projection, international humanitarian norms, and coastal state rights within the contemporary maritime domain. In an era marked by intensifying great-power competition and expanding operational reach in the Indian Ocean, the preservation of legal clarity, strategic restraint, and respect for neutral maritime spaces remains essential to sustaining regional stability and safeguarding the integrity of the international maritime order.

by REAR ADMIRAL (RTD.) JAGATH RANASINGHE
VSV, USP, psc, MSc (DS) Mgt, MMaritimePol (Aus),
PG Dip in CPS, DIP in CR, FNI (Lond), Former Govt Fellow GCSP

Opinion

The Rule of Law from a Master of the Rolls and Lord Chief Justice of England

Published

4 days ago

2026/03/6

Thilina Walpola

These last few months have given us vivid demonstrations of the power of the Rule of Law. A brother of the reigning monarch in Great Britain has been arrested by the local police and questioned. This is reported to be the first time since 1647 (Charles I) that a person so close in kin to the reigning monarch was arrested by the police in England. An ambassador of the United Kingdom who also was a member of the House of Lords has been questioned by the police because of alleged abuse of office. In US, the Supreme Court has turned back orders of a President who imposed new tariffs on imports into that might trading nation. A nation that was made by law (the Constitution) again lived by the rule of law and not by the will of a ruler, so avoiding the danger of dictatorship.

In Sri Lanka, once high and mighty rulers and their kith and kin have been arrested and detained by the police for questioning. A high ranking military official has been similarly detained. Comments by eminent lawyers as well as by some cantankerous politicians have cited the services rendered by these worthies as why they should be treated differently from other people who are subject to the rule of laws duly enacted in that land. In Sri Lanka governments, powerful politicians and bureaucrats have denied the rule of law by delaying filing cases in courts of law, until the physical evidence is destroyed and the accused and witnesses are incapacitated from partaking in the trial. These abuses are widely prevalent in our judicial system.

As the distinguished professor Brian Z. Tamanaha, (On the Rule of Law, 2004.) put it “the rule of law is ‘an exceedingly elusive notion’ giving rise to a ‘rampant divergence of understandings’ and analogous to the notion of Good in the sense that ‘everyone is for it, but have contrasting convictions about what it is’. The clearest statement on the rule of law, that I recently read as a layman, came in Tom Bingham (2010), The Rule of Law (Allen lane). Baron Bingham of Cornhill was Lord Chief Justice of England from 1996 until his retirement. For the benefit of your readers, I reproduce a few excerpts from his short book of 174 pages.

“Dicey (A.V.Dicey, 1885) gave three meanings to the rule of law. ‘We mean, in the first place… that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.’…If anyone -you or I- is to be penalized it must not be for breaking some rule dreamt up by an ingenious minister or official in order to convict us. It must be for proven breach of the established law and it must be a breach established before the ordinary courts of the land, not a tribunal of members picked to do the government’s bidding, lacking the independence and impartiality which are expected of judges.

” We mean in the second place, when we speak of ‘the rule of law’ …..that no man is above the law but that every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the ordinary tribunals.’ Thus no one is above the law, and all are subject to the same law administered in the same courts. The first is the point made by Dr Thomas Fuller (1654-1734) in 1733: ‘Be you ever so high, the law is above you.’ So, if you maltreat a penguin in the London Zoo, you do not escape prosecution because you are Archbishop of Canterbury; if you sell honours for a cash reward, it does not help that you are Prime Minister. But the second point is important too. There is no special law or court which deals with archbishops and prime ministers: the same law, administered in the same courts, applies to them as to everyone else.

“The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefits of laws publicly made, taking effect (generally) in the future and publicly administered in the courts. … My formulation owes much to Dicey, but I think it also captures the fundamental truth propounded by the great English philosopher John Locke in 1690 that ‘Wherever law ends, tyranny begins’. The same point was made by Tom Paine in 1776 when he said ‘… in America THE LAW IS KING’. For, as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.’

“None of this requires any of us to swoon in adulation of the law, let alone lawyers. Many people occasion share the view of Mr. Bumble in Oliver Twist that ‘If the law supposes that ….law is a ass -a idiot’. Many more share the ambition of expressed by one of the rebels in Shakespeare’s Henry VI, Part II, ‘The first thing we do, let’s kill all the lawyers. ….’. The hallmarks of a regime which flouts the rule of law are, alas, all too familiar: the midnight knock on the door, the sudden disappearance, the show trial, the subjection of prisoners to genetic experiment, the confession extracted by torture, the gulag and the concentration camp, the gas chamber, the practice of genocide or ethnic cleansing, the waging of aggressive war. The list is endless. Better to put up with some choleric judges and greedy lawyers.”

Tom Bingham draws attention to a declaration on the rule of law made by the International Commission of Jurists at Athens in 1955:

 =The state is subject to the law;

 =Government should respect the rights of individuals under the Rule of Law and provide effective means for their enforcement;

 =Judges should be guided by the Rule of Law and enforce it without fear or favour and resist any encroachment by governments or political parties in their independence as judges;

 =Lawyers of the world should preserve the independence of their profession, assert the rights of an individual under the Rule of Law and insist that every accused is accorded a fair trial;

The final rich paragraph of the book reads as follows: ‘The concept of the rule of law is not fixed for all time. Some countries do not subscribe to it fully, and some subscribe only in name, if that. Even those who subscribe to it find it difficult to subscribe to all its principles quite all the time. But in a world divided by differences of nationality, race, colour, religion and wealth it is one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion. It remains an ideal, but an ideal worth striving for, in the interests of good government and peace, at home and in the world at large.’

by Usvatte-aratchi ✍️