By Mass L. Usuf –
In sequence, the title summarises the legal and political direction into which this country is gravitating. An analysis of each of the above terms will give an understanding as to how the country is being strategically distanced from its constitutional democracy status.
Firstly, what is meant by ‘Sovereignty’? The legal authority for this is founded in Article 3 of our Constitution which states, “In the Republic of Sri Lanka sovereignty is in the People and is inalienable.” The words are clear and unambiguous. Unlike in the Westminster style of governance where sovereignty belongs to the Parliament, in Sri Lanka Sovereignty is in the People. This sovereignty is inalienable. Therefore, whether it is a government with 5/6 majority or a 2/3 majority in Parliament no one, including the Parliament, can usurp this Sovereignty from the People.
In law, especially, Constitutional law sovereignty connotes the supremacy in authority. Sovereignty is acknowledged as being above all. The Sovereign neither obeys any superior nor submits to any but, demands the obedience and submission of others to itself. Jurists opine that this is subject to external influences like intervention from another country or international involvement in which case there is submission as Austin says, “.. by fear on the part of nations, or fear of provoking general hostility ..”(Province of Jurisprudence determined, Pg. 176)
In Sri Lanka, even the Parliament cannot supersede the supreme authority of the People. In addition, even the powers of government are included in this sovereignty as stated in Article 3, “Sovereignty includes the powers of government, fundamental rights and the franchise.” It has to be noted that the Sovereign people is not a de facto institutionalized or physical body like the Parliament or the Courts. It is a de jure collection of all the people living within Sri Lanka put together, who asserts what is called moral authority over each and every one who exercises powers under its Sovereignty. This includes the President, Prime Minister, Cabinet of Ministers and, in general, all the three functionaries of government viz. the legislature, executive and the judiciary.
What is interesting is that the Constitution does not spell out as to what the sovereign people can do when their sovereignty is violated. Imagine a King of a country who is a powerful Monarch. He does not need any one to tell him what he should be doing in the event one of his subjects disobeys him. Thus, the sovereign is incapable of legal limitations. In a constitutional democracy, there is legitimate moral authority that may be exerted whenever the functionaries act in violation of powers delegated to them. This can be via an election process or other forms of coercive power like lawful dissent. The cumulative force of power of the collective conscience of the people was seen in the climax to the ‘aragalaya’. One of the sole objectives of this struggle was the cry for a ‘system change’. The dethroning of Gotabaya Rajapaksa constituted only one part of this while the final objective has not been fully achieved as yet.
The wrath of the people continues to simmer against the politicians for bankrupting the country, the blatant breach of the rule of law, breakdown within the bureaucracy, failing education, Police violence, suppression of dissent, abuse of power, stinging poverty, patients suffering due to lack of medical supplies, rising cost of medicines, unable to pay for laboratory tests and ultimately, untimely innocent deaths.
Legal Despotism Versus General Will
Finally, in this list, is the gross violation by the Members of Parliament of their fiduciary duties toward the sovereign people, on whose behalf they are exercising their powers. The Constitution at Article 4 (a) states:
“The legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People …”
The fiduciary duties, owed by the Parliamentarians to the sovereign people, are being violated by the former approving legislations which are against the General Will of the people. Laws which may be misused and abused, laws which may pave the way for repression, stultify freedom of speech, freedom of expression in the form of protests and dissent, freedom of assembly and the worst of all being the Anti-Terrorism Bill. These are acts starkly contrary to the trust reposed on these Parliamentarians and the President by the General Will of the people. When the people and political opponents are branded as criminals by the easy passage of laws, abusing the majority votes in Parliament, what results is general unrest since such actions violate the will of the people. The danger of this can be seen in the broad and vague definition of terrorism in the Anti-Terrorism bill. According to expert legal opinion, this definition would outlaw as ‘terrorists’ the events that took place in the ‘Aragalaya’ site – the Galle Face, while such instances can be dealt with under the normal law. This is the use and abuse of the law to one’s end.
The public thinks that these stringent legislations, using the morally delegitimized majority votes in Parliament, are being introduced not for the benefit of the people but, as self-serving measures for continuing in power. Before long, the sovereign will of the people will manifest itself in the form of a socially coercive force because of this continuing breach of trust. This is the vicious cycle of events that results as seen universally in such circumstances. The Nuremburg trials bears testimony that not everything that is done using legislation, via ‘legal despotism’, will be acknowledged as lawful, as the Will of the people reigns supreme.
Violence is not primarily intended but the potential remains in a struggle challenging the establishment. We have seen many public protests against tyrannical rulers, corrupt governments, dictatorships like the Arab Spring. Empirical observation indicates how political violence differs from ordinary criminal violence.
Firstly, there is no tangible or intangible personal gain for the individual. Secondly, the struggle is for the common good of all the people or the country. Thirdly, these actions originate not by one individual; Not two; Not a group but, a whole consensual mass of people. The participants may not even know each other. Fourthly, the action though illegal is not condemned by the society. In fact, society heralds such actions and the perpetrating agents as heroic, courageous and brave. Fifthly, there is an unwritten, implicit common understanding between the actors. Finally, because of these qualitative elements, the society gives its approval of legitimacy and tacit amnesty for the unlawful actors.
“Political violence is not political in the eyes of everyone. For some it is distinctively criminal while others attribute to the act a political dimension” says Political researcher Prof. Paul Du Mouchel. “They recognize that it has some legitimacy. … Some individuals feel some sympathy for those who committed the violence, and may favour partial political amnesty for the perpetrators …. Others for their part are ready to join them. An act of violence is political to the extent that it is legitimate”. (Political Violence and Democracy).
Legal jurisprudence teaches that this is how a government formed after a bloody revolution against a tyrannical ruler becomes a legal entity because it has the acceptance of the people. So, what was illegal has gained legal status by virtue of the society granting it the seal or approval of legitimacy. The reason for society to give legitimacy is because these agents have done what the society wanted.
The responsibility placed by the constitution on the shoulders of the President as stated in Article 4 (b) “the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic …” and the same fiduciary obligation assigned to the Parliamentarians vide Article 4 (a) “the legislative power of the People shall be exercised by Parliament, …” has to be discharged in a manner beneficial to the sovereign people. To paraphrase Abraham Lincoln, the Government should always act ‘for the people’.
It should be the desire of the sovereign people to clamour for the ‘system change’ by peaceful but assertive means. In this regard, there is a huge reciprocal responsibility for the President and the Parliamentarians to discharge their fiduciary responsibilities in a trustworthy and credible manner bearing the hallmark of integrity.
*Mass L. Usuf, LL. B (Hons) UK, Attorney at Law – (Ex-Advisor to former Presidential Private Department of UAE). Can be reached via email at: email@example.com