By Basil Fernando, Chula Goonasekera and Rohan Prithiviraj Perera –

The challenges public spaces face in contemporary times are a subject of ongoing discussion in developed and developing countries. Defining key terms and making specific distinctions is essential to engage meaningfully in this debate. Generally, ‘public space’ refers to areas that are open and accessible to everyone, such as roads, pavements, public squares, parks, beaches, and sections of government buildings like libraries that are open to the public.

Public spaces serve as democratic areas for congregation and political participation, allowing people to express their rights. These spaces must be contextualised based on the circumstances in which they exist or occur. In modern terms, public space can be viewed in two different contexts. One is the classical or traditional democratic space, where individuals can fully engage in public life through various means, ensuring their presence is felt in all matters concerning public affairs. This democratic space contrasts with its opposite, the space available to the public within an oligarchy. An oligarchy is a power structure where control rests with a few individuals who may be distinguished by characteristics such as nobility, fame, wealth, education, or control over corporate, religious, political, or military institutions.

The term ‘oligarchy’ means ‘rule by a few’. The distinction between ‘democracy’ and ‘oligarchy’ is that democracy is ‘rule by the people’, while oligarchy is ‘rule by a small group’ that controls all matters related to political power. In modern democracies, we no longer see pure democracies but predominantly democratic systems where various arrangements ensure public participation in collective affairs. These arrangements include representative governance, parliaments as forums for debate and decision-making on public matters, and executives accountable to legal frameworks, parliaments, the judiciary, and, ultimately, the people.

The essence of the oligarchy is to displace the notion of sovereignty of the people as the cornerstone of the constitutional order of a country. Instead, oligarchy challenges and undermines all the fundamental notions on which a democratic government rests. The final result is the removal of the foundational notions of civilized society, law, morality and culture. In this sense, oligarchy threatens the very existence of human society and the possibility of security and stability of the countries which embrace this form of governance.

Beyond the constitutional structure, the most crucial guarantee of public space protection is the ‘rule of law’. This principle ensures that laws are made with the agreement of the people, are binding on everyone—both rulers and the ruled—and can be enforced legitimately and effectively, with complete respect for everyone’s rights. From the perspective of public space, the rule of law, coupled with absolute respect for basic human rights, is essential for creating an environment where people can legitimately participate in public affairs.

Public space also entails the exclusion of activities harmful to individuals and society as a whole. Crimes are excluded from the exercise of public space, and punishments for these crimes should be designed rationally, with the consensus of the people. The state must develop mechanisms to exclude criminal activities from being legitimate within society. Therefore, discussions on public space and a democratic approach to ‘legal space’ are inseparable under modern circumstances.

Throughout history, power structures considered oligarchies have often been viewed as coercive, relying on public obedience or oppression to sustain their rule. The ancient Greek philosopher Aristotle pioneered using the term to mean rule by the rich, contrasting it with aristocracy. Aristocracy is a form of government that places power in the hands of a small, privileged ruling class, the aristocrats. Aristotle argued that oligarchy was a corrupted form of aristocracy. Political scientists describe many countries, such as Colombia, Indonesia, Russia, Iran, Singapore, Canada, China, and the United States, as oligarchies.

However, the best description of what has come to be recognised as oligarchies is best expressed in the great novel written by George Orwell, 1984. The novel describes a form of governance in which its operators control not only all aspects of society but also the minute details of the lives of the individuals. In fact, within an oligarchy system, the individuals do not really exist. Only the system exists.  The system is not based on any norms or standards. The system does not recognise the distinction between truth and falsehood, justice and injustice or love and hate. In the same way, it does not recognise the distinction between honesty and corruption.  The operators of the system can do whatever they like, and there are no barriers within the system to control them. The notion of abuse of power disappears as the operators have the power to do whatever they wish in any manner.  In such a situation, the notion of crime and punishment that has existed in all civilised societies disappears.  The acts a civilised society would consider horrendous crimes begin to be treated as permissible in this context.

Beyond direct political means at national and local levels, such as regional governance systems, public space is guaranteed through constitutions. Constitutions are potent tools that protect governance based on the people’s sovereignty, providing legally binding mechanisms for legitimate public participation in public life.

If the constitutional framework becomes fundamentally flawed, it can have far-reaching consequences on public space. The Sri Lankan constitution of 1978 is fundamentally fraudulent. That constitution was intended to transform Sri Lanka from a democracy into an oligarchy. Our country is already an oligarchy, and our rulers are currently strengthening their stance, with over 75 laws passed in the last two years that restrict people’s freedoms in various ways. The elected ‘225’ have mastered insulating themselves through electoral system manipulations, including bonus seats, national seats, and partial nominations by the top elite, ensuring that the same dynamics dominate politics and the same individuals remain in power. The president’s position and powers are also protected, allowing only registered political party politicians in the legislature to compete in presidential elections. These politicians safeguard each other, regardless of their promises or the colours they display, ultimately deceiving us with false promises. It is crucial to understand this scenario and use the upcoming election processes to elect as many individuals as possible from outside the current ‘pool’ of politicians.

In an oligarchy, where a few rules, the essential attack on public space involves denying legal protection to how people can participate in public life. Within an oligarchy, participation is often considered illegal. This fundamental difference is frequently overlooked, especially in developing countries, when discussing human rights and public space. It is sometimes assumed that obstructions to freedom of association and assembly are the only concerns regarding the limitation of public space. This approach might be appropriate in countries with well-established democratic traditions, where occasional attempts to restrict certain freedoms can be seen as temporary deviations from the norm.

However, the attack extends beyond these freedoms in a country ruled by an oligarchy. It undermines the very concept of the individual and the legitimate linkage of individuals as a collective. Instead, an abstract notion of collective participation is promoted, and genuine collective participation is denied. Ultimately, an oligarchy often leads to the dominance of a single political party and its leadership over the entire public space, denying everyone else the right to any form of public participation. A universal general assembly to govern us is already on the horizon, moving towards one-party governance. The closest example for us is China. There are many countries which have adopted one-party systems, where all attempts at political decent are considered a betrayal.

This can also happen in another way. For example, a party that obtains an absolute majority within a parliament can pass any law it wants, ignoring the opposition, various sectors that try to create public opinion, and the people who want to participate through protests or other means. We have witnessed this. The majority party can exclude all dissenting voices and make decisions as they wish. The result is often that, in the name of the majority, the party leadership takes over, effectively using their members of parliament as proxies. These members are deprived of genuine participation as representatives of their constituents and become mere representatives of the party leadership’s will. In exchange, party leaders provide these members of parliament with opportunities for corruption and various ways to enrich themselves using their public positions. We have perfect examples in our country, rising day by day to a mode of ‘political corruption’ that led us to bankruptcy. It is about time we all, the general public, realise where our country is heading.

This fundamental transformation is not well understood in discussions of human rights and democratic governance. While many countries have essentially become oligarchies, there is a persistent belief that they are democracies. This misconception arises from the practice of “double-take principles,” where public documents and official language often state one thing but imply the opposite. For instance, the term “public space” is used rhetorically to suggest inclusion and openness, yet, in reality, it often signifies the exclusion and denial of genuine public engagement. Do we not see this in our rulers?

Recently, in the United States, the Supreme Court declared that a President is immune from prosecution when exercising the ‘core powers’ of the presidency. Immunity means that a person cannot be prosecuted – it is not merely a defence to prosecution. This principle is empowered by the complex role of the Supreme Court, which derives its authority from its ability to invalidate legislation or executive actions that, in the Court’s judgment, conflict with the Constitution. Most considered this ‘Immunity of the Executive from Criminal Liability’ a threat to democratic space. In her dissenting judgment, Justice Sonia Sotomayor stated that the majority decision was a “mockery” that makes a President a “King above the law.” She concluded her dissent by expressing her fear of declining democracy.

This fear is well-founded. A closer examination of countries like ours that have granted absolute immunity to their Executives from criminal prosecution reveals bewildering situations. These grants of immunity have often transformed democracies into oligarchies. A clear illustration of this can be found in Sri Lanka’s experience. Sri Lanka, which began as a democracy after gaining independence from the British Empire in 1948, rapidly plunged into chaos starting in 1978. This descent began when a new constitution granted absolute immunity to the president from any kind of litigation, including criminal prosecution. Soon, presidential immunity spread throughout the government, and Sri Lanka came to be recognised as a country facing an exceptional collapse of the rule of law. We observed appointments to key positions without regard to meritocracy, a lack of authority for oversight commissions to take follow-up actions to ensure the application of the rule of law in governance, and a lack of respect for due procedures in decision-making. As a consequence, our motherland became engraved with several alarming issues:

* Extreme violence, where internal disputes degenerated into large-scale killings

* Endemic corruption, an economy in bankruptcy, and sustained indebtedness

* Inflation driving the prices of essential goods beyond the reach of lower-income groups

* Prevention of investigations into and prosecution of serious crimes due to direct and indirect political interventions

* A policing system heavily criticised for its links to criminal elements, the underworld, and illicit trades, resulting in widespread economic crimes and a loss of trust necessary for economic development

* Loss of independence in the civil service

* A lack of attraction for investors

* Unbearably high taxation for ordinary people

* Deterioration of social responsibility  and accountability

* Serious undermining of the entire system of justice

In our motherland, under the conditions created by executive immunity, a small oligarchic group has thrived beyond all bounds. Ants have become elephants overnight. Their wealth expands through every illegal means, and their riches are safely sent outside national boundaries. There are no real authorities capable of stopping such actions. Anyone observing the sad plight of our nation can see how executive immunity can destroy a country. This is the challenge that democracies, attacked by oligarchies, face today. The issue of democratic space should be viewed and reviewed within this context.

This is why we need to mobilise all public power to install a constitution created by the direct participation of people through a genuinely representative constituent assembly.   Approved by the public via a referendum. Such a constitution would ensure that it belongs to the people and aligns with values recognised worldwide as humane. We cannot deviate from these principles if we are to thrive as a democratic and developed country. For all these, it is essential that genuinely free and fair elections be held as required by the law without any delay.

*On behalf of the LEADS Forum