By Basil Fernando –
A review on the basis of principles formulated by John Rawls
For many decades since 1978 there has been talk about many reforms. The basic justification for 17th Amendment to the Constitution was that it promised basic reforms with the view to enable working of the democratic process. There had also been suggestions for reforms to ensure the rights of minorities, particularly the Tamils. The 13th Amendment to the Constitution was an outcome of that debate. Then the latest is the recommendations of the commissions for the lessons learned (LLRC), which suggests several other reforms and this now has the backing of the resolution from the UN Human Rights Council.
The 17th Amendment, 13th Amendment and the recommendations of the LLRC are based on the assumption that there is a democratic political framework in Sri Lanka, which makes implementation of the reforms proposed by these documents possible. If this assumption is to be false, all the work and agitation for such implementation is surely based on a false assumption.
Is the political system of Sri Lanka a democratic one? This is the first question that should be considered if all the work and agitation for democratic reforms of the existing political system is not to go to waste. So, will our system qualify to be called a democratic system?
As the question is a very serious one we may perhaps rely on a respected authority by everyone in the field of constitutional law and philosophy to consider this question. John Rawls, in his Theory of Justice laid down a few very basic principles of a political system that may be called democratically just.
These principles are that such a society is a fair system of cooperation. The public institutions of such a society should provide for the possibility of a fair system of cooperation among all its members. Is Sri Lanka today a well ordered system of fair cooperation?
A further principle he advanced was that such a society is a well ordered society. A well ordered society is a society effectively regulated by a public conception of justice. In such a society everyone accepts, and knows that everyone else accepts, the very same political conception of justice. This implies that the society’s basic structure is effectively regulated by a public conception of justice. All the main political and social institutions and the ways in which they hang together as one system of cooperation satisfy the principles of justice.
In a well ordered society the public conception of justice provides a mutually recognised point of view from which the citizens can adjudicate their claims of political right on their political institutions or against one another.
Is Sri Lanka today such a well ordered society?
The third basic idea that John Rawls presented was the idea of the basic structure of the society. The basic structure of a society is the way in which the main political and social institutions of society fit together into one system of social cooperation. The political constitution with an independent judiciary, the legally recognised form of property, the structure of the economy as well as the family in some form, all belong to the same basic structure. The basic structure is the background, social framework within which the activities of associations and individuals takes place. It is this just, basic structure that secures what we may call the background for justice as Rawls explained.
Examined from these three basic ideas is Sri Lanka political system a democratic system at all?
An exit from a democratic form of governance
The adoption of the 1978 Constitution marked an exit from a democratic form of governance in Sri Lanka. It was a decisive rupture and a radical departure from the basic democratic political norms introduced by the Constitution with which Sri Lanka started its history as an independent nation.
Why there has not been any significant breakthrough out of this undemocratic political system that was introduced in 1978 despite of many efforts as well as a lot of rhetoric to bring about radical democratic reforms is because there is a general unwillingness to accept that the system as it exists now is fundamentally an undemocratic system. It is not a democratic system with some flaws or defects. It is not a democratic system at all. Since there is unwillingness or reluctance to come to terms with this political reality no advance is made at all towards any improvements in the movement to develop effective strategies for bringing about change.
All suggestions for reforms as well as all the analysis that go with it is based on a false logic of trying to add democratic branches to a tree that belongs to a completely different species. Until this fundamental contradiction is grasped nothing much will happen to bring about the change that the people desire and want.
The people desire a fair system of cooperation. The present system rejects any kind of cooperation. It is designed to benefit a few and the system works according to the design. It is not meant to be a system for the people. It is meant to be a system for a few and there is no room for any kind of power for the people.
This is essentially also the trap in which all demands and the efforts for the minority rights are also ensnared. Until the minorities understand that there does not exist any room for cooperation for any of the people of the country, including the majority population to be a part of a fair system of cooperation they will also be caught up in the same snare. Much effort and much talk will go to waste as an undemocratic system cannot be changed into a democratic one without dealing with the overall problem by everyone.
The same can be said of the ultimate outcome of the resolution of the Human Rights Council on Sri Lanka. Despite of goodwill and the best of intentions the resolutions failed to deal with the fact that since 1978 democratic governance does not exist in Sri Lanka.
(The references to John Rawls has been from Justice as Fairness – a restatement – John Rawls edited by Erin Kelly).
For further reading kindly see the AHRC publication Gyges’ Ring – the 1978 Constitution of Sri Lanka.
sajeeva samaranayake / July 10, 2012
My congratulations on this. This is the way forward.
The rules of the game have changed – rendering many old approaches based on an absent and defunct paradigm ineffective. In fact they have been a sheer nuisance. What to do? Everything must proceed from self realization.
The real challenge I feel is to develop a truly integrated and locally driven human rights education and dialogue for our children and youth and adults …. starting from scratch must be the spirit without running behind illusions
better late than never.
Pandukabaya de Silva / July 10, 2012
Yes, I agree.
This is an enlightened reflection on whats wrong with Sri Lanka today We need to change our entire way of thinking about ourselves, our societies and our legal systems
JULAAMPITYE AMARAYA / July 10, 2012
you are correct sir,
You said at last para; since 1978 democratic governance does not exist in Sri Lanka.
but Sir, there is one question from me.
There are some educated, and some with doctorates, so called P H D ERS are telling that democratic governance returned ,and does exist after the present president came to power.
that also i belive,
i and my type of clans got so many jobs under the democratic governance like this.
Merril / July 10, 2012
Excellent review. This is an undemocratic system, too many loop holes, power does not belong to the people, it allows few politician to have the absolute power.
NAK / July 10, 2012
Mr.Fernando, understandably, suggests that the present presidential system is undemocratic,since he had to flee the country to save his own life from JRJ’s dogs of democracy. But since then what has he done or said to change the system until the present regime came to power.
Not much that I know of! except he got to work and live comfortably in Hong kong.
“Is the political system of Sri Lanka a democratic one? This is the first question that should be considered if all the work and agitation for democratic reforms of the existing political system is not to go to waste. So, will our system qualify to be called a democratic system?”
How naïve can one be, where in the world can one find this kind of pure democracy? Democracy today is a farce all over the world. Power brokers, money, underworld god fathers and Mafiosi’s rule the world today. If anyone is under the misconception of democracy, they better wake up to the reality.
”This is essentially also the trap in which all demands and the efforts for the minority rights are also ensnared. Until the minorities understand that there does not exist any room for cooperation for any of the people of the country, including the majority population to be a part of a fair system of cooperation they will also be caught up in the same snare. Much effort and much talk will go to waste as an undemocratic system cannot be changed into a democratic one without dealing with the overall problem by everyone”
Somewhere in 93/94, in Phnom Penh we argued, Mr. Fernando being a Singhalese, was adamant on a settlement with the Tigers who he believed unbeatable and I being a Tamil, argued for a military defeat of the Tigers, knowing that the Tigers never fought for the Tamils.
I am glad Mr. Fernando finally has realized that this is not just a minority Tamil issue but a completely different problem involving the whole population.
I am not, as a policy, in favor of this present presidential system but, I firmly believe at the present moment executive presidency is essential in order preserve political stability in our country. I can imagine the chaos our country would be in if not for the strong presidency.
Chandra Goonewardene / July 11, 2012
I totally disagree NAK. To say that the executive presidency should remain is absurd. The very basic idea is that vesting so much of power in one individual is bad.
Surely that is not too difficult to understand? We have examples of our failures all around us today.
sajeeva samaranayake / July 13, 2012
We have tried out so called “practical, realistic, pragmatic” solutions which have been half baked, half way houses that made concessions to our weaknesses and frailties.
Central govt in SL is an expression of a people who do not have the maturity to govern themselves
The time has come to be totally impractical – to dare to dream about the kind of future we want and we want for our children –
without dreams we end up in the kind of mess we are now in – who needs any more proof of the dangers of not dreaming?
Dick Perera / July 14, 2012
The writer Mr Basil Fernando , has articulated the shortcomings of the
present Constitution. In this he has done an excellent job. There is no
argument that in view of the many loop holes in the present Constitution,
the next best thing to do is to enact a new one ,with calls to interested
Parties to submit their proposals , either as amendments,or as new Constitutions. These can then be given due publicity enabling individuals
or Institutions to comment on .Sufficient time for people to discuss,
decide and inform the Government , has to be given . Although this has never been done before, let us do so now so that there is a semblance of
the peoples participation in the making of a Constitution that has emanated from the people themselves .How much more democratic can we aspire to be ? This process could even suggest a new paradigm for choosing the members for the legislature preventing the scum of the
earth from entering the Parliament .