27 September, 2020

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The Rule Of Law: Is It Worth Defending?

By Sumanasiri Liyanage

Sumanasiri Liyanage

Let me at the outset thank the Transparency International for inviting me for this discussion. I was a bit hesitant to accept the invitation as I thought I would be a misfit here. Because I am not a great fan of ‘rule of law’, ‘good governance’, ‘the independence of judiciary’ and other goodies of the same kind. It does not mean that I do not see a value of these principles and practices of democratic governance. On the contrary, I believe that they are very valuable so that should be defended unconditionally in ‘normal’ situations. However, as Professor Wendy Brown has informed us, ‘democracy has historically unparalleled global popularity today yet has never been more conceptually footloose or substantively hollow’. Hence, it has become for multiple reasons an ‘empty signifier’. The argument that we should ensure that the rule of law prevails also implies that all laws generate justice. Nonetheless, there can be unjust laws, and that number is in fact growing. This is not confined to this part of the world, and such a development may be seen at global level, almost in every country. Paul Craig Roberts, writing to Foreign Relation Journal, has noted: “In the 21st century, Americans have experienced an extraordinary collapse in the rule of law and their constitutional protections. Today, American citizens, once a free people protected by laws, can be assassinated and detained in prison indefinitely without any evidence being presented to a court of their guilt, and they can be sentenced to prison on the basis of secret testimony by anonymous witnesses not subject to cross examination. The US ‘justice system’ has been transformed by the Bush/Obama regime into the ‘justice system’ of Gestapo Germany and Stalinist Russia. There is no difference.” Although, one may argue that the above account is an exaggeration, it shows a general tendency that de-democratization is a world-wide phenomenon and its roots extend beyond the legal-constitutional framework.

In recent years, legal philosophers have begun to focus their attention to this relatively under-researched area of study with an objective of explaining this global tendency within a broader socio-economic and political setting. Extending and critiquing Michel Foucault’s notion of transcendence of politics into biopolitics, Giorgio Agamben, an Italian philosopher, has analyzed how the laws that were previously deployed to address ‘emergency’ situations have now been used widely in normal situations. He writes: “Faced with the unstoppable progression of what has been called a ‘global civil war.’ The state of exception tends increasingly to appear as the dominant paradigm of government in contemporary politics. This transformation of a provisional and exceptional measure into a technique of government threatens radically to alter –in fact, has already probably altered- the structure and meaning of the traditional distinction between constitutional forms. Indeed, from this perspective, the state of exception appears as threshold of indeterminacy between democracy and absolutism.” (State of Exception, pp. 2- 3) We have been witnessing this same trend in an increasing scale in Sri Lanka in the last thirty five years. It is incorrect to see the emergence of this trend as a post-2005 or 2009 phenomenon. Hence, in my view, it is not merely a regime crisis but a systemic crisis the reverberations of which appear in varying degree in all sectors of the system. We all have been infected by the decline of moral and ethical values as a necessary corollary of the system decay.

De-democratization

How do we explain this process of de-democratization? Prior to the analysis of the concrete situation in Sri Lanka, let me focus on the forces that are at work at the global level. I will list below the six principle causes of de-democratization identified by Wendy Brown.

1. Merging of corporate and state power:  Corporate wealth is used to buy politicians who decide on domestic and foreign policy. Corporatized media makes a mockery of informed publics or accountable power. Some countries extensively outsource state functions ranging from schools to prisons to militaries; appoint investment bankers and corporate CEOs as ministers and cabinet secretaries. The populace cannot contest these developments or counter them. Powerless to say no to capital’s needs, they mostly watch passively as their own needs are neglected through austerity measures.

2. “Free” elections, have become circuses of marketing and management:  As citizens are wooed by sophisticated campaign marketing strategies that place voting on a par with choosing brands of electronics, political life is increasingly reduced to media and marketing success. So political policies and agendas are sold as consumer rather than public goods.

3. Neoliberalism’s frontal assault on the fundaments of liberal democracy: Neoliberalism has displaced democracy’s basic principles of constitutionalism, legal equality, political and civil liberty, political autonomy, and universal inclusion with market criteria of cost/benefit ratios, efficiency, profitability, and efficacy. The state is reconfigured from an embodiment of popular rule to an operation of business management. Neoliberal rationality renders every human being and institution, including the constitutional state, on the model of the firm and hence supplants democratic principles with entrepreneurial ones in the political sphere. 

4. Expanded power of courts—domestic as well as international:  Along with expanded executive power, recent decades have witnessed the expanded power of courts. A variety of political struggles and issues, including those emerging from domestic social movements and international human rights campaigns, are increasingly conferred to courts, where legal experts juggle and finesse political decisions in a language so complex and arcane as to be incomprehensible to any but lawyers specializing in the field. Governance by courts inverts the crucial subordination of adjudication to legislation on which popular sovereignty depends and overtly politicizes a nonrepresentative institution.

5. Globalization’s erosion of nation-state sovereignty:  Nation-states has been severely compromised by ever-growing transnational flows of capital, people, ideas, resources, commodities, violence. Democracy detached from a bounded sovereign jurisdiction (whether virtual or literal) is politically meaningless.

6. Securitization: Securitization constitutes another important quarter of de-democratizing state action by Western states in a late modern and globalized world. The ensemble of state actions aimed at preventing and deflecting terrorism in many countries are often mischaracterized as resurgent state sovereignty.

All these global dynamics has been at work in Sri Lanka and the Sri Lankan systemic crisis is undoubtedly a part and parcel of this world systemic crisis. In such a situation if someone thinks that the pressure from the international community –euphemism for imperialism- can make a difference, s/he is making a bigger mistake of diagnosis and assessment.

A Process, not so Gradual

The process of de-democratization in Sri Lanka has clear landmarks. For President J R Jayawardene, democracy was something subordinated to economic development. Development needs law and order, political stability and strong executive that was not subjected to whims and fancies of peoples’ will. The Constitution of 1978 and the Prevention of Terrorism Act were the basic architecture of his project. It was put into practice during the General Strike of 1980. The second wave came with 1983 July pogrom against Thamils that eventually led to 30 years armed conflict. This event is particularly important as the Government of Sri Lanka (GoSL) for the first time use subterranean forces to intimidate a section of its own population. The process had become more or less continuous after this event with regular ups and downs. The youth insurrection led by the Janata Vimukthi Peramuna (JVP) on a strong anti-Tamil position and its suppression by the GoSL forces marked third landmark in the process of de-democratization. There was a short respite during the short regime of President D B Wijetunga and the first year or so of the Chandrika Bandaranaike regime. President Chandrika Bandaranaike had an ample opportunity to reverse the process, but she refused to do so. As a result, the process continued. A short and highly unstable breathing space can be seen once again after 2002 Parliamentary Election partly because of the Peace Agreement between the GoSL and the Liberation Tiger of Tamil Eelam and the clash between the President and the Cabinet. The situation deteriorated further during the crucial phase of the armed conflict after 2006. However, President Rajapaksa also had an ample space to reverse the process since the armed conflict contributed immensely the process of de-democratization. On the contrary he took series of steps to strengthen the process. It is interesting to note that when the process was imbedded in the system, reversing it back is difficult as such a reversal would affect vested interests of the ruling clique.  So the state of exception is firmly established.

My submission is that when this threshold is crossed, attempts at partial victories or piecemeal reforms are not only highly unlikely, but also they would end up as futile exercises. Three main reasons may be listed in supporting this submission. First, liberal demand for rule of law, good governance and transparency is aimed at creating environment for capital accumulation so that the demand in itself not to establish democratic governance, ie., rule of demos. Secondly, laws do not by themselves generate justice as many laws are essentially unjust. In the past, the Supreme Court while having exclusive power to interpret the Constitution allowed legislature to pass so many undemocratic laws either with simple majority or with two third majority without giving an opportunity express their views at a referendum. The best example was the 18th Amendment. Also in many situations, it was the rule of law that restricted peoples’ rights. Thirdly, the state of exception has now become a normal situation. Unless people can change this situation, the situation would reinterpret all rules and regulations for its advantage.

*This is a text of the speech made at the seminar, ‘The Rule of Law in Future Sri Lanka’, organized by Transparency International, held at OPA Auditorium, Colombo on February 6, 2003. The writer is a co-coordinator of Marx School, Colombo, Kandy and Negombo,E-mail: sumane_l@yahoo.com

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    This is a very clear analysis of the present situation. Nothing much can be done unless all stakeholders realise the imperative to have democracy and rule of law in the true sense.

    Unless people realise this necessity, the system will continue to redefine what democracy and rule of law means, often infringeing on personal liberties and human rights. It highlights the need for a new enlightened constitution and removal of all contradictory legislation from the statute.

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      Safa, do you think that it is a possibility? This situation did not arise over night.It started in 1970, with the 1972 constitution.Unlike the 1978 constitution, it was a well discussed document.The surprising factors were (i) The manifesto never said any thing about changing the constitution. That is not surprising because in SL no party make it possible for all the people to read the manifesto, not even the JVP.(ii) One of the conditions under which the LSSP agreed to form a . Coalition was to have that particular portfolio with them.Their 1972 constitution was the break point in the move towards a dictatorship.The LSSP of which you are a member started this rot, they created the rot.The rest followed.Leaving aside the masses how many had objected to this trend? The professionals, the University lecturers, the lawyers no body.If this is to be changed at least the educated classes should get together.No Govt can execute a move to mass murder the opponents if they are from the elite classes. The Unions will be an insignificant but useful supporter.But which unions when all political parties have contributed to this mess.There is only one solution but that solution may be not acceptable to the financially stable middle class.The upheavel as in Egypt, where the educated class is not willing to play the second fiddle to the Muslim Brotherhood.What about the Bodu Bala Sena, who are supposed to have their own goons.The Thadi ganaya!That also was inherited from the LSSP. They brought the first Buddist Monk to the Parliament.He was followed by the Mudalali priests.

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      “The argument that we should ensure that the rule of law prevails also implies that all laws generate justice. Nonetheless, there can be unjust laws, and that number is in fact growing. This is not confined to this part of the world, and such a development may be seen at global level, almost in every country. Paul Craig Roberts, writing to Foreign Relation Journal, has noted: “In the 21st century, Americans have experienced an extraordinary collapse in the rule of law and their constitutional protections. Today, American citizens, once a free people protected by laws, can be assassinated and detained in prison indefinitely without any evidence being presented to a court of their guilt, and they can be sentenced to prison on the basis of secret testimony by anonymous witnesses not subject to cross examination. The US ‘justice system’ has been transformed by the Bush/Obama regime into the ‘justice system’ of Gestapo Germany and Stalinist Russia. There is no difference.” Although, one may argue that the above account is an exaggeration, it shows a general tendency that de-democratization is a world-wide phenomenon and its roots extend beyond the legal-constitutional framework.”

      NJ
      If we see what is actually happening the above is true for many countries. Governments throughout the world are becoming more intolerant. Even in US which is a bastian of freedom we have torture, drone strikes against innocent civilians etc. Governments are often corporating and conspiring against helpless people. Laws are being passed like the 18A using the 2/3 majority which are inimical to the rights of the people. Unless the system is changed these acts will continue. Our constitution is now a complete mess. BTW I do not belong to LSSP or any party.

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        Wikileaks has exposed the hypocrisy of the entire system.

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    No need for the rule of law. We need the arbitrary rule of the a strong Ruler! Who will defend our glorious island against foreign conspiracies! Hello….Duh….obvious no?????

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    Useful article. I have done a similar one in Tamil for Thinakkural. Thanks Sumane for bringing out clearly those points we have argued in parts here and there. It is clear we have to work to this agenda

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    Nice piece! Keep up the good work!
    So much of this analysis is classic Max Webe: the techno-legal bureaucratic state rationality has expanded while values, principles, ethics and morals are attenuated as the basis for and of governance..
    At a more practical level:
    Sobitha Thero has spoken on the lack of an opposition in Sri Lanka – pointing to Ranil Wickramasinghe. All the leaders of the faiths (Buddhism, Hinduism, Christianity and Islam), the multi-religious organizations that spoke up against the impeachment of the Chief Justice should ask Ranil WIckramasinghe to RESIGN from the UNP leadership as he has NO MORAL RIGHT OR LEGITIMACY TO HOLD THE POST. Ranil must be forced to stop being a dictator in the UNP and opposition and step down and hand over the party leadership to younger more capable UNPers.
    The UNP BELONGS TO THE PEOPLE OF LANKA as the country’s oldest political party. Ranil does not own the UNP which is a NATIONAL INSTITUTION and PARTY – nor has he been voted by the people to head the UNP (unlike Dictatros Mahinda Rajapassa who at least got voted in), and Ranil hence has ABSOULTELY NO MORAL RIGHT to monopolize party leadership and destroy the opposition. Ranil Wickramasinghe is MORALLY CORRUPT and INTELLECTUALLY BANKRUPT and a BAD example, unfit to fight the Rajapakse dictatorship and restore democracy in Lanka. As a first step to restoring democracy in Lanka Ranil WIckramasinghe should be asked to resign and there should be a national campaign for Ranil’s resignation, to save the UNP from Dictatorship even as democracy in Lanka needs saving from Mahinda Rajapakse.

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    Will MR support RWs removal/resignation at least remotely? This is
    where current politics comes into full force.
    The present democratic-dictatorship or the three-in-one Rule will
    over-ride all stipulations. There is no feasible change within
    sight for good or bad.

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    I was slightly disturbed but mostly amused by Sumanasiri’s pedestrian arguments with name droppings of Professor Wendy Brown, Paul Craig Roberts, Giorgio Agamben and of course Michel Foucault to justify the claims. He says that “The argument that we should ensure that the rule of law prevails also implies that all laws generate justice.” Absolutely not. This is the pedestrian argument. The rule of law means in essence “the supremacy of regular power as opposed to arbitrary power.” This is what Roberts was talking about in America and this is what many have been talking about in Sri Lanka. The present dangerous situation in Sri Lanka cannot be justified by saying that it is systemic or it has been there for a long time or in all countries.

    Let me quote few things that I was disturbed about with my brief comments and/or questions.

    Quote: “I am not a great fan of ‘rule of law’, ‘good governance’, ‘the independence of judiciary’ and other goodies of the same kind.”

    My comment: Good to know Sumane! But what are the other goodies?

    Quote: “We have been witnessing this same trend in an increasing scale in Sri Lanka in the last thirty five years.”

    My comment: Why 35 years only? Haven’t we witnessing this systemic crisis before? Is it because you defend the 1970-77 regime? What are the similarities between that regime and the present regime for you to be soft on the present?

    Quote: “It is incorrect to see the emergence of this trend as a post-2005 or 2009 phenomenon.”

    My comment: Rajapaksa regime might be extremely happy to see your systemic analysis!

    Laksiri

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    Paul Craig Roberts, writing to Foreign Relation Journal, has noted: “In the 21st century, Americans have experienced an extraordinary collapse in the rule of law and their constitutional protections. Today, American citizens, once a free people protected by laws, can be assassinated and detained in prison indefinitely without any evidence being presented to a court of their guilt, and they can be sentenced to prison on the basis of secret testimony by anonymous witnesses not subject to cross examination. The US ‘justice system’ has been transformed by the Bush/Obama regime into the ‘justice system’ of Gestapo Germany and Stalinist Russia. There is no difference.”

    Contrary to the writer’s assertion that the above quote is an exaggeration by Roberts, I would like to suggest that it is an appropriate observation that is proportionate to the reality in the US, moreso with the fear of retribution by Islamic fundamentalists for the devastation caused to Muslim countries of the oil rich Mid East…

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