26 May, 2020

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When A Rose Is Not A Rose: The Change Of The Normative Framework

By Basil Fernando

Basil Fernando

What took place as a result of the 1972 and 1978 constitutions was the change of the normative framework of the legal system of Sri Lanka.

One aspect of the explanation lies in how language affects understanding. Words derive their meaning from what exists in the outside world, whether it will be nature or social realities. However, when it comes to abstract ideas, when a word is used to express an idea that is outside of reality, the word itself acquires a fixed meaning that must be learned (but often is not). Whenever the same word is used, it is expected that a similar meaning is being expressed. 

Then, by way of deductive logic, various conclusions can be reached, based on the fixed meanings of words. Let us illustrate this.

Example 1

All judges reject bribes.

X is a judge. 

Therefore X rejects bribes. 

Example 2 

All prosecutors are impartial.

X is a prosecutor.

Therefore X is impartial 

Example 3

All policemen protect the law.

X is a policemen.

Therefore X protects the law.

All these three words are derived from a normative framework that exists in a particular context. In real life situations that adhere to that normative framework, judges do not take bribes, prosecutors are impartial, and policemen protect the law. It is assumed that that is how people in those role see themselves.  

When that particular framework is universalized, there is an expectation that in all societies judges, prosecutors and policemen behave in the manner described above. 

That conclusion is based on the assumption that all societies and cultures have a similar normative framework for the administration of justice. When a person looks into the world with that perspective, they assume that justice systems that say they have judges, prosecutors and policemen mean that those in justice systems judges desist from bribe-taking, prosecutors reject bias and partialtiy, and police reject illegality. 

The result of that perspective is that if such a person learns about a judge taking bribes, a prosecutor who is not impartial or a policeman that does not attempt to protect the law, this person will treat this behaviour as an exception the rule. Such individual exceptions do not contradict the assumed normative framework. The normative framework merely sets out the ideals, and exceptional violations do not contradict the ideal. A person with this perspective would expect that, in instances of such exceptions, sanctions would be imposed, and that the normative framework would be strengthened in that way.

However, when the normative framework itself is different, words such as ‘judge’, ‘prosecutor’ and ‘policeman’ do not carry the same meaning. In that normative framework, those words may in fact carry the opposite meaning. 

Every normative framework is based on ideals. A different normative framework means one that is following a different sets of ideals. To understand the meaning of words used in a particular framework, it is necessary to understand the ideal framework of a particular country or a society. For example, meanings given to behaviour of judges, prosecutors and policemen in the original examples apply to an ideal framework of justice in a particular legal and social context. In the three examples, a judge a prosecutor and a policeman are expected to behave in the ideal manner described above. The concept behind the ideal framework of justice in the original example is that there is a separation of powers established as an essential aspect of the system of governance, and that justice – meaning fairness – is an inseparable part of that ideal. 

Ideally speaking, the Soulbury constitution of Sri Lanka was based on this normative framework. All the laws, court judgements and the behaviour of the operators of various institutions had to be within that normative framework. 

However, the very ideals of that normative framework were changed by 1972 and 1978 constitutions. These constitutions rejected the separation of powers principle, where all the three branches of the state enjoy similar status and none is subordinate to the other, but where an independent judiciary is the final arbiter of the law and the protection of individuals. 

The core of 1972 and 1978 constitutions was to relegate the judiciary to a lesser status within the separation of the powers conception. The judicial review of legislation was removed and various avenues were opened in order to interfere with the independence of judiciary. 

The ideal expressed particularly by the 1978 constitution was to introduce a new constitution and thus reject the ideals based on the original constitution. The new ideal was that all power should be in the hand of the Executive President. The fact that later the Executive President’s position was mostly taken over by the Prime Minister did not alter this fact in any way. The ideal of the executive being outside the separation of powers principle became the foundation of the normative framework. 

Within this framework, words like ‘judge’, ‘prosecutor’, ‘policeman’, ‘civil servant’, ‘cabinet minister’ or ‘legislator’ does not have the same meaning as they had under the original normative framework. 

The attempt to interpret the new constitutions on the basis of the original conceptions of the Soulbury constitution lies rather than the new ‘ideals’ is at the heart of all the conflicts relating to political life, constitutional interpretation, the functioning of public institutions and all aspects of the functioning of Sri Lankan society. 

This contradiction was already felt at the time the 17th amendment was almost unanimously passed. However, instead changing the normative framework of the 1978 constitution, the amendment only tried to modify the powers of the president, while not touching the ideal based on the rejection of separation of powers principle. 

Later amendments led to other amendments; it goes on and on, but the normative framework of separation-of-powers-based political system remained rejected and abandoned. 

This is let to a tragicomic situation of trying to operate a system that pretended to adhere to the original conception but was in fact really working under a new set of ideals that reject the separation of powers principle. 

When words are used that would have one meaning in a normative framework that adhered to the separation of powers principle but have a different meaning in terms of the ideals of absolute power, no real or meaningful discourse is possible. That is the situation that exists now. 

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Latest comments

  • 1
    1

    it will be a wet dream if one expects the rulers the corrupt politicians their hangers on the triad armed forces the police the saffron-clad scantily attired stupid to the core Buddhist monks and mainly the majority of the petty-minded criminally inclined to harm the minorities, Sinhalese ruffian louts, to live a clean honorable life as according to the precepts of the docile peace-loving great lord buddha.
    =======
    if shit oozing sorry Lanka has to do to a u-turn to become a truly clean honest and with no vice being practiced we need the great velu. P to resurrect his band of totally dedicated to the merry freedom guerilla fighters to take over either by peaceful surrender or by warfare.
    =======
    I have hit the nail on the head . one must not forget during the entire 30-year-old cursed war only the east and the north of the then clean proud isle no crime of any sort which also included sexual misdemeanors for which the Sinhalese Buddhist yakkos were and still famous for how true.
    cheers,
    R. J., the volcanic doer.

    • 0
      2

      Rev Johnpillai, the volcanic doer (sic), is it too late to repair your broken English?

      • 0
        0

        Imagine these people’s ability to understand even the 19A let alone reading Soulbury Constitution..

      • 2
        0

        What is wrong with doer which means a performer, an active or energetic person. It is not surprising that swabasha educated cannot understand it.

  • 0
    1

    You got a point Sir,

    I thought Ranjana Ramanayakas, Ravi Karunanyaks, Dr Rani Wickremasinghes, Champaka Ranawakas , Padmini Ranawaks and Shani Abeysekeras took charge of those” Three Things” which you have been about.
    And they administered them , for the last 4 years….-

    Castrating the President was the first act of Yhapalana PM Dr Rani Wickremasinghe .
    And to distribute the Three Things among the above Lot..

    Wonder what happened?..

    But then poor Soulbery and his Mates wouldn’t have had a clue what our Dudes can do?…

  • 0
    0

    It is easy to blame. It looks since 1972 followed the same adulteration of the system. Mrs B to face a Catholic military Coup as well as prior to that her husband was killed by Catholics (Not Roman Catholics). So, the justice system and Law enforcement had to be with known people if not those who showed allegiance to the ruling govt. Now, every thing is highly politicized. NGO, foreign influence, influence from International community, Trade Unions and also by those get funds from the foreign agencies. They all influence Sti Lankan law enforcement and Judiciary.
    Generally, in other countries, Judiciary and law enforcement are independent to a certain extent except they are under the basic needs or under the deep state requirement. Sri Lanka needs discipline. What we need a independent system but one protect sri lankan culture. Our system is not one like that.

  • 0
    0

    Basil,
    I think that all have understood your point but, I think the way you have developed the argument has two major holes!
    1. In a historical perspective, I don’t believe that, in an ideal sense of better efficiency, the “normative framework” of such abstract concepts as police, judges (judiciary including prosecution), bureaucracy and politicians (last two are my additions; one can clergies & teachers as well) could not have changed. That is b’cos the true intentions of 1972 & 78 constitutional change were to increase efficiency of public service. The framers of the 72 wanted to reduce the power of the bureaucracy on the perception that the bureaucracy has become a big burden by corruption and disrespect for public. 78 framers took the same idea a bit further to concentrate power on one person believing that (a) parliament is a waste of time and (b) left-winged politics backed trade unions were an obstacle to new economic policies. As a matter of fact, with police & the bureaucracy, it was broken state of the “normative framework” so as to be associated with corruption & inefficiency that forced both the change. After 19 A, politics also followed the same path.

    2. From a practical point of view, a meaning of words and/or concepts can also change with time without a change in “normative framework”. A good example is “evolution”.At the first stage, scientist, Darwin included, didn’t used the the word to mean organismic evolution. Once it took the modern meaning, the meaning of the process of evolution has expanded so much that the difference between colloquial meaning & the professional meaning has widened vastly while general meaning stays unchanged. This the common nature of many scientific concepts. The concept & the act of punishment is another example. According to Nietzsche, the original expectation of punishment was harassment for insubordination but today, it is used as barring immoral behavior.

  • 0
    0

    think this writer should have written about so-called Human Rights Activists taking bribes from various pressure groups and pushing ONLY the agendas of their pay masters. Their pay masters may be the CIA, the pro-LTTE Diaspora, the Rohingiya Lo bby, the Catholic Action lobby — you name it.
    What has been going on at the Asian Human Rights Commission, or Amnesty International, or Center for Policy Alternatives etc etc., should be the topic of these holier-than-thou witch hunters of modern times, a bunch of people that Mr. B. Fernando should know very well, with his hand intimately in the Asian Human Rights business.
    By the end of the Eelam wars, according to the Island newspaper and Canadian National Post as quoted by the Island newspaper, “Out of Rs. 618.33 million received by the ‘Center for Policy Alternatives’ (headed by Pakiasoothy Saravanamuttu), ‘National Peace Council’ (Kumar Rupasinghe) and ‘Transparency International’ during the three-year period, Rs. 111.48 million had been donated by various other sources but not named. Transparency recently had a Buddhist monk on its payroll paid by a secret fund kept full by the Ranil government. [Who knows what secret funds are maintained by the current government?]
    In 2012 an ex-official of the US-state department, Suzanne Nossel who advocates `smart power’ based on ‘military force’ and R2P was executive Director of Amnesty International-USA. Madeleine Albright, ex-US secretary of state (who confided to Leslie Stahl that the deaths of many hundreds of thousands of Iraqis, including an estimated 500,000 children was a price “worth it” to weaken former U.S. ally, Saddam Hussein), was the lead speaker in an AI ‘shadow-summit’ held in Chicago in May 2012. AI mounted posters justifying NATO’s invasion of Afghanistan. These showed the extent of impairment of AI’s moral judgment by 2012. Suzanne Nossel resigned when protests mounted with Rowley and Right exposing Amnesty’s Shilling for US Wars.

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