27 June, 2022


Part II- Judiciary At War Against The Constitution

By Jude Fernando

The is the Part II of three-part series takes a broad look at the tensions between the judiciary and the legislature by the author. – CT

“Constitutions become the ultimate tyranny,” Paul said. “They’re organized power on such a scale as to be overwhelming. The Constitution is social power mobilized and it has no conscience. It can crush the highest and the lowest, removing all dignity and individuality. It has an unstable balance point and no limitations.” (Frank Herbert’s Dune Messiah)

All constitutions and laws are social, economic, political and cultural compromises between a framing party and a ratifying party; their tenets depend on the balance of power between these two groups at one particular moment in history. As Altman notes, any constitution embodies “ideological struggles among social factions in which competing conceptions of justice, goodness, and social and political life get compromised, truncated, vitiated, and adjusted.”  Consequently, any constitution shapes and disciplines how both society and judges think about natural justice.  The social, economic, political and cultural inertia generated by a constitution can become so malignant that it eventually harms the individual and collective interests in a way that is beyond what its framers and ratifiers could have foreseen.

The impeachment of the Chief Justice in Sri Lanka marks a critical moment in the country’s history in which the judiciary must battle against the very forces it incrementally sanctioned after the British Colonial period. It is also a moment for us to realize that this battle has to do with our silence and inaction on unjust constitutional reforms.  Paradoxically, only an independent judiciary can pave the way for change, particularly in a situation where the alleged misconduct of judges act as a red herring for the regime and related political parties to attack the judiciary through the tyranny of the majority that exists in Parliament.

Perhaps the best definition of natural justice is found in Karl Marx’s n the Critique of the Gotha Programme, where he claims the ultimate principle of “justice”, the principle that would be actualized in an ideal community, is: “From each according to his ability, to each according to his needs!” Such a community would be the actualization of “freedom” understood as the living of a “good” life, a life creating and appropriating beauty and truth within relations of mutual recognition of each other as equals. Justice Marx, is the participation of everyone to the best of their ability in the provision to everyone of what each “needs” to live a life of “freedom.”

This notion of natural justice is derived from the Natural Law, meaning that justice is fused with morality and responsibility. This is different from justice’s narrow definition found in literature sympathetic to legal positivism, where it is defined simply in terms of two principles that protects individuals against arbitrary exercise of power by ensuring fair play.: (1) Audi alteram partem: no accused person, or person directly affected by a decision shall be condemned unless given full chance to prepare and submit his or her case and rebuttal to the opposing party’s arguments; (2) Nemo judex in causa sua:  no decision is valid if it was influenced by any financial consideration or other interest or bias of the decision maker.

Normative foundations and their practical applications of the justice system are driven by the broader definition of natural justice.  The idea the justice system is driven by a narrower definition is an illusion and a hypocritical.  If that is the case, there would not be any need for judges to interpret of the constitution, and there would not have been much of a crisis in the justice system.  If the laws are not moral there is no obligation to obey them. The isolation of natural justice from morality in legal positivism mystifies how the legal system sanctions inequalities, hence obstructing natural justice. In fact uncoupling of morality from natural justice is an ideological construct in societies governed by unjust social, political and economic ideologies.

The scope of natural justice that the justice system can offer is determined by the political economy in which it evolved and function, particularly its material and ideological foundations.  Crises of the justice system are often rooted inequalities in this political economy and they result from man’s desire for equality—a desire which is not permanently bounded by political economy or limited by any one of these institutions.   Such inequality-producing political economy independent of the Constitution, but is sanctioned by the Constitution and laws associated with it.

The First Constitution of Sri Lanka was a result of the integration of the country into the global capitalist system. This occurred when it was it was reconfigured as a modern nation state under British colonial rule. Constitutions of the modern nation state — the territorial form within which the capitalist relations are managed — are products of capitalist values and ideology.  Their purpose is to create and safeguard institutions and power relations necessary to capitalism, which include private property rights, generalized exchange system markets, law, state sovereignty, the state’s monopoly over the right to use legitimate force, and the implementation of law and order.

To represent these as institutions as legal abstractions embodied with rational and universal values is to mystify their function in the capitalist system.

According to Karl Renner legal institutions are static, which makes them appear neural and equal, but their social functions are dynamic, making it possible to transform the social order according to the interests of the capitalist system.  Consequently, these institutions cannot create equality because the credo of the system is profit (or accumulation), which necessarily means robbed wages from the labor or the real producers of wealth.  The expansion and survival of the system is predicated on inequality.  In other words, the limits to natural justice in the legal system are also the limits to natural justice in the capitalist system.  Tensions between the judiciary and the legislature are rooted in the enduring crisis of the capitalist political economy.

Law and the state come into existence primarily to diffuse the tensions caused by with this inequality. According to Friedrich Engels,

“In order that these contradictions, these. . . classes with conflicting economic interests, may not annihilate themselves and society in a useless struggle, a power becomes necessary that stands apparently above society and has the function of keeping down the conflicts and maintaining ‘order’.”

State sovereignty protected by the Constitution balances the bourgeoisie legal ideas with real social and economic inequalities.  This balancing is a dynamic process that becomes extremely difficult as capitalism progresses since formal equalities promised by the state promises are always undermined by the inequalities of capitalism. As capitalism globalizes, state sovereignty becomes even more important because it (under neoliberal conditions) assumes responsibility for creating conditions for and managing capitalist inequalities.  The state continue to mystifies its primary role as the executive of the transnational capitalist interests and diverts public dissent against capitalist’s class by seeking its popular legitimacy by amending the Constitution or taking charge of interpreting the Constitution to strengthen the economic and cultural forces that provide legitimacy for state power.

In the Communist Manifesto, Marx denounces bourgeois law as nothing more than a reflection of bourgeois desires. Addressing them, he says, “[Y]our jurisprudence is but the will of your class made into a law for all, a will, whose essential character and direction are determined by the economic conditions of existence of your class.”  Law as an abstraction treats humans as autonomous ‘subject rather than identifying them with their predicate, class.’ Similarly, the notion of Parliamentary supremacy as a legal abstraction may be used by the Parliament in order to escape judicial review by claiming to represent the general will, which is an illusion as much as it is an institutional license for the parliament to represent sectional interests.

Although everyone is treated equally by law, in reality they are unequal, and their very survival is derived from unequal economics and social relations.  Equality before the law is an ideological cloak and equality of bargaining power in contracts in capitalist system is an illusion.

The legal system gives people the right to enter freely into contracts, but the absence of equal bargaining makes the promise of equality and freedom illusory.  Engels continues, law may pretend neutrality with phrases such as ‘equality before the law, but “The power given to one party by its different class position, the pressure it exercises on the other—the real economic position of both—all this is no concern of the law.”  The law guarantees only equality in the domain of exchange.    In politics everyone as voters is equal, and in economy everyone as owners of means of production and sellers of labor power is unequal.

Consequently, “the contempt for the existing social order is most conspicuous in its extreme forms—that of offences against the law.” If the constitution protects the institutions of capitalism, then the protest against inequality is a protest against the constitution.  The Constitution, in turn, gives the state the authority to use force against those protesting; such authority in turn allows the state to completely jettison its own responsibility for inequality and exploitation of inequality for its own partisan interests.

Against this back drop, the crisis between the legislature and the judiciary in Sri Lanka needs to be understood by looking at incremental changes to the Constitution and understanding how these changes serve the capitalist political economy of the country.  Apart from inherently unjust foundations, the colonial constitution deprived the Sri Lankan people of the full development of capitalism because its objective was to develop a country that would help maintain England’s position as the dominant capitalist power.  The private property rights it ensured were simply safeguarding the ownership rights of that which was stolen from the beginning.  Much of the economy ran on bonded labor who worked in inhumane conditions.

The colonial constitution’s de facto recognition of local customs and traditions allowed the local hierarchies to continue serving the interests of the colonial government and their local allies.  For example, British Governor William Manning, who actively encouraged communal representation and the legislative council in 1921 as well as its first election, returned thirteen Sinhalese and three Tamils, a significant loss when compared to the previous councils based on direct appointment by the Governor.  Thereafter, communalism never ceased to be an important force, but gained de facto legal status in the country’s evolution of country’s Constitution and legislature, and continued to impact development, human rights, and democracy, in particular the relations between the different ethnic groups of the country.

The native elites used the same abstract universal ideals of the natural justice in the colonial Constitution to demand independence.  After independence, the communalism was transformed into nationalism without completely purging communalism.  Subsequent development of Sinhala nationalism and Tamil sub-nationalism both served to camouflage the elite dominance of their respective societies and their subservience to transnational capital and primordial political interests, all of which came at the expense of country’s economic and political sovereignty.

Constitutional reforms after independence were more or less based on an egalitarian social contract, and economic changes were gradual and occurred according to global capital interests.  The state upheld that it was their responsibility to provide basic necessities irrespective of one’s social and economic status.  At the same time, the elites did not want to tamper with the plantation economy or relations with Britain.  As early as 1951, the government was committed to the World Bank policies which mandated the gradual closure of public sector ventures and elimination of food subsidies.

The state’s formal commitment to social welfare policies could not be sustained as they were progressively undermined by capitalist economic policies and ethno-nationalism.  S.W.R.D Bandaranaike’s political campaign defeated the UNP in 1956 by arousing Sinhala nationalism rather than by addressing growing inequalities resulting from dependent capitalism.  In particular, after the constitutional reforms in 1977, the country has witnessed a progressive erosion of a post-independent social contract and suppression of dissent, both of which are exacerbated by the convergence with national security (see militarization of development after the defeat of the LTTE).  The convergence also meant that property is treated purely in economic, national security and nationalistic imperatives rather than in terms of people’s traditional livelihoods and how their identity and political vulnerabilities are linked with that property.

The Official Language Act of 1956, popularly known as the “Sinhala Only Bill”, denied Sri Lanka’s languages parity status. Tamil received national language status but not official language status in the 1978 Constitution. Tamil was elevated as an official language along with Sinhala by way of the 13th amendment to the Constitution in 1987. Tamil was further enhanced in the administrative and legislative spheres through the 16th amendment in 1988.  However, the state failed to implement the Sinhala and Tamil languages because it derived its popular legitimacy from the nationalist forces that resulted from the Sinhala only policies.

The 1972 Republican Constitution saw further consolidation of ethno nationalist forces.

[T]he Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster Buddhism while assuring to all religions the rights secured by Section 18 (i)(d) [religious freedom].

Tamils did not vote for the constitution as they felt it deprived them of equal status. Thereafter, ethnicity became a permanent feature in politics and subsequently led to 25 years of war.  Interestingly, the republican constitution was drafted by a group of communists and socialists who even today fail to meaningfully reconcile the politics of class with the politics of ethno-nationalism.  The Constitution failed to give equal citizenship status to plantation workers who lived in subhuman conditions, despite the fact that they sustained the welfare economy.  Even when they were granted citizenship, they remained at the bottom of the social ladder.

Within a very short period of time, the social welfare policies led to remarkable improvement of the basic quality of life the majority of the population, mainly with the help of labor of South Indians who worked in inhumane conditions in the plantation sector.  The legislature was reluctant to bring constitutional changes that granted equal rights to plantation workers.  The Citizenship Act of 1948 disenfranchised thousands of these plantation workers.  Even leftist political parties like the JVP did not consider plantation workers part of Sri Lanka’s proletariat, but as an extension of Indian imperialism. Yet the granting of citizenship later did not do much to alter the conditions of the population. This was because the economy of the plantation sector was deeply entrenched with the transnational capital and the communalist social forces did not provide much incentive for the state to do so.  The Left political parties did not make a difference; their advocacy for constitutional reforms failed to reconcile their supposedly Marxist class analysis with ethno-nationalism.

The controversies of the national flag, emblem and anthems protected by the Constitution were completely buried in history, but the social forces that these national symbols generated shape the social and political inequalities today.  For examples, critics point out that the national flag, with its stylized lion holding a sword in its right paw against the two stripes, represents the hegemony of Sinhala nationalism.  Senator Nadason’s pointed out that the lion “adopted far from being a symbol of national unity will be a symbol of our disunity.” Later observers state that the:

            Compromise on the two strips and their position on the flag outside the yellow borders of             the lion flag and more significantly within the outer yellow border of the new flag was the symbolic expression of the second class citizenship for minorities that in 1956, 1972, and 1978 manifested in Mr. Bandaranaike’s Sinhala Only Act, Mrs. Bandaranaike’s  Republican Constitution, and Mr. Jayewardene’s Unitary constitutions respectively.

Mr. Nadesan’s attempts create a flag with a common symbol and common identity failed.  The prediction of the late Prema Lal Kumarasiri of the Sri Lanka Communist Party that war is inevitable in fifty years time if the lion is included in the flag was prophetic, indeed!

Although these national symbols fail to provide equal representation to all ethnic groups, mainstream political parties did recognized the undemocratic nature of the Constitution and the necessity of constitutional reforms to devolve power to the minorities, but their initiatives failed because of opposition parties that exploited attempted reforms by the incumbents to claim state power.  Similarly, the national symbols did not change because no one wanted to change the conceptual meaning underlying them that have evolved as important sources of state legitimacy.  These social forces these meanings generated are powerful that removed any incentive for the government to devolve power even after defeating the LTTE.

The 1978 Constitution changed the country’s formal name from the Republic of Sri Lanka to the Democratic Socialist Republic of Sri Lanka and established a presidential form of government similar to that of the French Fifth Republic.  It established strong executive presidency with unlimited controls over civilian and military affairs. A 1982 amendment extended the life of Parliament for another six years with far-reaching changes to integrate the country’s economy with the dictates of the global capitalism.  The Constitution also recognized and guaranteed a broad range of fundamental rights, including freedom of thought and conscience; religious freedom; freedom from discrimination on the basis of race, religion, sex, or caste; freedom of speech; basic legal protection, including freedom from arbitrary arrest or detention; freedom to engage in any lawful occupation; and freedom of movement and travel.  Yet the regime’s commitment to neoliberal and ethno-nationalist policies undermined these freedoms and used ethno-nationalism as a way of gaining legitimacy and distracting protests against the consequent inequalities.

These inequalities mostly explain the Sinhalese and Tamil Youth uprisings since 1971.  These uprisings were treated as law and order, terrorist, and Naxalite problems that the state had to deal with. This prompted the state to introduce new draconian laws to safeguard national security.   Such laws are inevitable when uprisings terrorize the entire society, particularly when the terror is far alienated from their social, economic and political contexts and causes.  The country does not have to tolerate terror until its root causes are addressed.  At the same, treating uprisings purely as law and order issue allowed the state to jettison the responsibility of its own policies as primary causes for uprisings.

Many of the Constitutional reforms to counter separatism and terrorism have been prolong emergency powers that have been extended to suppress any form of dissent against the state.  The enthusiasm with which the state defeated the Sinhala and Tamil militancy is not matched in bring in constitutional changes to address the social, economic and political causes that led to these uprising or giving power to the courts to do so.  For some critics, the subsequent convergence of defense and development after the war has made the lifting of the emergency meaningless.

In 1979, the government introduced the Prevention of Terrorism Act (PTA), which, according to many observers, went far beyond preventing terrorism and violated many basic fundamental rights.  Many observers believed this contributed to widespread abuses of power, including the systematic torture of detainees. Among many of its clauses is the total immunity granted to those involved in maintaining law and order. It stipulates that “no suit, prosecution or other proceeding, civil or criminal, shall lie against any officer or person for any act … in pursuance or supposed pursuance of any order made or direction given under this Act.” It also provided power to the elected bodies to interfere with the Judiciary. It states:

            The Minister may order that such person be detained for a period not exceeding three months in the first instance, in such place and subject to such conditions as may be determined by the Minister, and any such order may be extended from time to time for a period not exceeding three months at a time.

Parliament passed the PTA without giving sufficient room for public or elected officials to express their views about it. In fact, dissenters were brutally attacked and publically humiliated.  The act was temporary — lasting three years — but they were made permanent in 1982.  An August 1983 amendment outlawed separatism advocacy, which resulted in the expulsion of members of the Tamil United Liberation Front (TULF) from Parliament. Against a background of escalating communal violence, the amendment deprived Sri Lankan Tamils of political representation.  The 13th Amendment did not amount to meaningful devolution of power, but it only reinforced the powers of the executive Presidency and ensured that the executive power vested in the President by the Constitution will not be eroded in any way.  Regardless of the relevance and feasibility of the demands of Tamils, the Constitution and many subsequent acts constrained the space for a meaningful dialogue on natural justice, the country’s national identity, and the distribution of political power.

The 18th Amendment removed the term limit of the executive president.  According to many observers, these decisions were tantamount to illegitimate manipulation of the legal and Parliamentary process by the executive to gain uncontested political power.  (Ironically, the Chief Justice Shirani Bandaranayaka was the one who approved the 18th Amendment.) While the Executive President enjoys immunity from the judicial review of its actions, he is also a head of a political party — an elected official who heads important ministries and appointments to civil and diplomatic services.  Hence the immunity that the President enjoys is meaningless as it allows him to be involved in every decision that matters to the public and at the same time distance himself from any consequences arising from those decisions.

The state’s desire to concentrate power does not seem to end with the executive Presidency as it seeks to bypass any laws that distribute power in any of the government ministries.  For example, the Divineguma Bill attempts to overcome the 13th Amendment’s potential for decentralizing decision-making to the local government bodies, in the light of domestic and international unpopularity of some government members’ opposition to the 13th Amendment.  This is likely to be counter-productive to meaningful devolution of power to north and east because the displacement and restructuring of the north eastern landscape will make the devolution meaningless.  Subsequent approval of the bill by the Parliament, despite of opposition by the UNP and the TNA and the news that the government is interested in extending the life of the Parliament until 2023 are further evidence of tyranny of majority rule exercised by the parliament without giving sufficient consideration for its implications for democracy.

The current tension between the Judiciary and the legislature is in part a result of Constitutional reforms since the British colonial period, which in many ways mirrors the situation Karl Marx described in France in his Eighteenth Brumair:

Whatever else Bonaparte appropriates, the power of circumstances places in his hands; whatever else he does, either circumstances do for him, or he is content to copy from the deeds of others; but he, posing before the citizens with the official phrases about “Order,” “Religion,” “Family,” “Property,” and, behind him, the secret society of skipjacks and picaroons, the society of disorder, of prostitution, and of theft,—that is Bonaparte himself as the original author; and the history of the “Society of December 10” is his own history. The party of Order was in possession of the Government, of the Army, and of the legislative body, in short, of the total power of the State, morally strengthened by the general elections, that caused their sovereignty to appear as the will of the people.

The rise of the Party of Order has caused the virtual death of the post-independent social welfare contract and has brought on a historically unprecedented suppression of democratic institutions. Dissent against the Party of Order that demands natural justice is seen as a violation of the Constitution and supremacy of the Parliament even though the social and economic inequalities that led to these demands are sanctioned by partly Constitution itself.  Put differently, the power that the legislature exercise to undermine the judiciary through misinterpretation of the Constitution, disregarding court orders justice system and tolerating insulting of judges by MPs are also unintended consequences of the Constitution.

The legislature—not the judiciary— is responsible for bring constitutional changes to address the injustices and inequalities stemming from capitalist and ethno-nationalist forces.  At the moment, the country expects positive responses from legislature because it is far more entrenched in transnational capitalism, ethno-nationalism, executive presidency, disregard for law and accountability and nepotism.  Even more importantly, the legislature expresses no shame in politicizing the judiciary. Legislature has lost the moral authority to impeach justices.  Today the supremacy of the Parliament is a meaningless and misleading concept.  According to Paikiasothy Saravanamuttu “The idea of parliamentary supremacy is as much colonial – being a feature of English constitutional law – as it is obsolete.”

The good news is that the judges are not eternally bound by the legislative constraints or the current limitations of the Constitution, and unlike the legislature, the Constitution cannot and does not need to change or keep pace with the change demanded by the legislature.  The fact that the Constitution 1) derives its legitimacy from natural justice 2) is an abstract document and 3) is existentially inseparable from interpretation allows the judiciary to maintain a distance from the political processes and avoid bowing down to the demands from the elected officials when they undermine natural justice.

We must protect the independence of the judiciary. It has the capacity to get the maximum use of the current constitution to protect natural justice.  It is also the most reliable institution that can create space for social forces to exert pressure on the legislature to introduce Constitutional changes to protect natural justice, and ensure the legislature, judiciary and the executive function accordingly.

But we must remember that the power of natural justice comes from the universal attribute of humans beings as self-reflexive beings. People are not ad infinitum slaves of the elected officials when they usurp their privileges to undermine their liberty, equality, and dignity, regardless of promises to endorse these rights.  Sri Lanka is blessed with honorable judges who are highly professional and capable, and who have shown the resilience to upholding values of natural justice despite the insult and the treats they face.  Any hope of spring in Sri Lanka lies in its citizens doing everything they can to maintain the independence of the judiciary and taking care of the personal welfare of the judges and their willingness to be critical of the Constitutional and legislative forces that obstruct natural justice.

To be continued..

Part one;

Impeachment Of The First Woman CJ And Beginning Of The Spring In Sri Lanka?

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