The legal fiction of law and order

PLAYING GAMES ANCIENT AND MODERN: In ancient Babylon, the birthplace of ‘an eye for an eye’, society was divided into three classes: superior, commoner, and slave. And only closer examination of their chief lawgiver Hammurabi’s motives helps us to discern a self-serving rationale for this lex talionis – Pix by Shehan Gunasekara

I am watching the high charade unfold. No matter how many important people know the difference between right and wrong – or should – it is criminal the number of times the law collars the wrong person – or the right ones for the wrong reason – it is the highest treason. There is every reason under a sullen sun to call for heads to roll for the lamentable fiasco that the establishment is pleased to call ‘lapses in intelligence’ that led to 4/21. Just spread the net wide enough to catch Jaws and not only Dory or Nemo!

No matter how cynical you might be, we all probably cried a little inside (even as we smiled knowingly) as a former Defence Secretary and the erstwhile IGP were arrested by the CID while they sought refuge in national and police hospitals, respectively. On the one hand, the mandarin and the top cop deserved it, we’d argue – one for his haughty incompetence while in office, the other his often hilarious arrogance. On the other, we know that justice is far from being done; and if it is in anyway done, much of it has been left undone: for other more germane primary culprits in the security fiasco that led to Black Easter 2019 in Sri Lanka go scot-free for now. 

There is a chilling sense in which the principal villains of the piece in the defence establishment are pulling precisely the strings that will hang everyone but themselves and especially their former cohorts turned inconvenient embarrassments. The fast-tracking of the mechanism to re-implement judicial executions is a macabre machination that must give us all pause, particularly those who oppose the powers that be and would be again. 

Just think of how, if found culpable of crimes tantamount to negligent homicide on a national scale, the brace of high-ranking detenues this week may face a grimmer music than they envisaged when they shrugged off the responsibility for the carnage with cavalier aplomb two months ago. Also consider that it is not the first time in our chequered history that former accomplices become convenient scapegoats when the hangman knots his noose. 

Machiavellian benefits

Not that the president is alone in his native cunning-driven efforts to justify his lapses as head of state and commander-in-chief by pleading that his own life continues to be in danger of the putative drug mafia that he has allegedly offended. But that those other Machiavellian plotters in ‘greener’ pastures have remained appallingly apathetic to the grosser offences of their one-time running mate… perhaps in the hope that he will effectively hang himself anyway, irrespective of any inefficient investment of energy on their part at all (at what – impeachment? ignoring the irritation in the knowledge he has blown his bridges before crossing them?). 

And the deadliest of all silences has been from the sinister camp that claimed an imperative to greater securitisation of the nation at large in the immediate aftermath of the bomb-blast-attack-pattern – for we had already asked “Cui bono?” (‘Who benefits?’) and reached a startling conclusion: that those once charged with the defence of the state against terror were the most likely of the usual suspects!

Manmade bible

In a fascinating study of humanity titled ‘Sapiens,’ which I’m reading with absorption these days, history professor Yuval Noah Hariri argues that at different times in disparate ages, human beings adopt ethics that have no objective reality, except that a large number of their compatriots subscribe to it blindly, to give it meaning and significance that they can share in. 

For example, in circa 1776BC the great Babylonian lawmaker-king Hammurabi codified a legal ethos in which the famous (and much misunderstood) ‘eye for an eye’ dictum was applied according to a structured layering of society whereby ‘superiors’ stood over ‘commoners’ who stood over ‘slaves’. There was no contesting this measure of valuing humanity because the king claimed that the code was handed down to him by the gods of Babylon – and therefore was more divine will than law.

Then again, a similar ‘legal fiction’ was instituted in (interestingly enough) 1776AD – the anniversary of which nation’s founding we mark today – whereby the ‘self-evident truth’ that ‘all men are created equal’ combined with the ‘inalienable right’ to ‘life, liberty and the pursuit of happiness’ through which the modern United States was established. In no way would we challenge this fundamental axiom of human rights today. But in the light of the great regard that later lawgivers like Moses (and thereby all monotheistic faiths of the Middle East) would hold Hammurabi, we must ask – who was right: the famous lawgiver or the latter-day founding fathers of the most modern nation in the human-rights firmament?

Modern bastardisations

If the purpose of this piece was to critique Babylon’s codifiers and/or critically engage America’s axiomatic values (more honoured in the breach than the observance today?), I’d point to how Hammurabi’s laws helped him to consolidate his own position in the Babylonian pantheon. Or how human rights have positioned America as simultaneously the greatest champion and worst offender of that set of legal fictions! However, my humble objective today has a more mundane stamp. So I’ll content myself by suggesting a few ways in which Sri Lanka these days – by no means a fabulous city-state as a crucible for law and order, or less still the land of the free and home of the brave – has subscribed to some legal fictions of its own, to its own detriment.  First the feeling that since the president is immune from prosecution while in situ, he is somehow exempt from political censure tantamount to legal or constitutional proceedings, or public condemnation short of electors’ ire at the polls booth. This is a legal fiction, which – if the political opposition had more testicular fortitude – would be exploded like… well, a can of worms; or a worthwhile impeachment. And we all – media, civil society, the independent institutions, free academics and professionals – could/should do everything we still can (short of breaking the law: by murder maybe, or character assassination on social media) to curb, check and curtail madness, criminality and shenanigans in high places.

Then there is the far from therapeutic notion that personal health trumps public justice. What bylaw or clause in the criminal procedure code persuades us that hospitalisation – that traditional first resort of the absconding scoundrel – is viable and tenable for prolonged periods, such that every mother’s son does it since time out of mind no sooner the law reaches out for him? This must end; because, justice – like ambition – must be made of sterner stuff. 

While being humane is the politeness of enlightened rulers, it’s morally and ethically repugnant when it’s practised in a spirit of chicanery and false pretences. The judicio-medical and legal establishments must cease and desist from pandering to sundry miscreants who fall on their crutches after perpetrating ‘grave crimes against humanity’ (the AG’s Dept.’s definition, BTW) while up and about. 

More balance 

And why do we still have so much stock – both in the letter of the law, as well as the spirit of the constitution – in a milieu where neither has ensured that justice has been done, by putting away the most egregious offenders on a Hammurabi-like scale? In Babylon as in Colombo, could it be that we’re so hung up on the balanced redress of an ‘eye for an eye’ that we’re blind to socially executed justice, and can’t see a way beyond legal recourse to bell the cats? 

I hope to expand in future articles how Sri Lanka needs a new social contract that is not overly dependent on hamstrung legal fictions. But for now, suffice it to say that former regimes that imprisoned their war-winning generals and incumbent administrations that throw the book at a sitting IGP rely on the legal fiction of rule ‘by’ law and order – in contradistinction to the rule ‘of’ law and order.

By no means am I advocating anarchy or antinomianism. But simply agitating against the collusion of legal fictions in keeping us commoners slaves to the so-called superior classes – ironically, the very servants whom we appointed to do our (the public) will! And if only the oppressed citizenry would wake up and lose the legalistic shackles of our mindset in bondage, we’d see that there’s a whole lot more than ‘liberty at the barricades’ which we can undertake to do. To give us justice or just-death!

(Journalist | Editor-at-large of LMD | Writer #SpeakingTruthToPower)