28 September, 2020

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When Democracy Came To An End?

By Sumanasiri Liyanage

Sumanasiri Liyanage

Many legal luminaries have expressed their views on the controversial decision of the Supreme Court of the Republic of Sri Lanka on the Parliament’s right over the impeachment of judges of the Superior Courts, the Supreme Courts and the Court of Appeal. On the basis of the Supreme Court decisions, the court of appeal has given an order to quash the Parliamentary Select Committee report that was given to the Speaker of the Parliament that has led to a constitutional deadlock. The Article 125 (1) of the Constitution of Sri Lanka says: “The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution.” Hence, the argument is that the Parliament should abide by the decision of the appeal court not to proceed further on the impeachment process. The legal experts have opposite views on the subject. Former Professor of Law of the Colombo University and the former Chief Justice have argued that the SC determination is inconsistent with the constitution. On the other hand, many constitutional lawyers and the opposition Parliamentarians argue that since the SC has the exclusive power of interpretation of the constitution, the only option available is to accept it even though one can question its legality. However, the Sri Lankan Constitution does not provide for such questioning in the legal sphere as no higher judicial body than the Supreme Court exists. I have neither legal training nor expertise on the subject to comment on the validity of these opposite views.

Nonetheless, I have been interested in constitutional issues for many years as a layman especially with regard to constitutional design on power-sharing. My scanty knowledge of constitutions however gives the impression that the SC determination is a clear example of not judiciary activism but judiciary overreach. So there is a potential for current deadlock to develop into a major systemic crisis. Such a development would not depend on the constitutionality or otherwise of the decision of Parliament or the determination of the Supreme Court, but on how contending actors act in the political sphere. This is not a legal battle but definitely a political one. Hence, it should not be portrayed as a battle for high normative principles such as the independence of judiciary or people’s sovereignty or democracy.

To decipher the developments in the recent past and the possible developments in near future, they should be put in a proper context. Here, I think that three syntagmas, namely, the state of exception (the concept advanced by Giorgio Agamben), the threat perception (oftentimes linked with hegemonic nationalism) and the system of bribes (the term I deployed in my two previous articles on the same subject) would be helpful. Let me first delineate the notion of state of exception briefly. Carl Schmitt remarked that the sovereign is he who decides on the state of exception (in different situations different terms have been used, emergency, martial law etc). Agamben’s argument is that in today’s world, in almost all the countries, of course in different degree, the state of exception has become the normal state of affairs. So the distinction among different organs of power namely, the legislature, the executive and the judiciary will get blurred. It does not end there. He writes: “As we shall see, the state of exception constitutes rather a kinematic state, an emptiness of law, and the idea of an originary indistinction and fullness of power must be considered a legal mythologem analogous to the idea of a state of nature.” As Walter Benjamin remarked, ‘the state of exception has become the rule’. It may not necessarily be an outcome of abrupt change. It may result in by gradual expansion of the power of the executive. Today, the legislative powers of the Parliaments in many countries are limited to ratifying the measures that the executive wants legislative bodies to pass. So, one of the essential characteristics of the state of exception is the provisional abolition of the distinction among legislative, executive and judiciary powers. For this tendency to be unleashed through formal constitutional means, it needs other supportive mechanisms to which I turn shortly.

Sri Lankan Constitution of 1978 provided the legal-constitutional framework for the establishment of the state of exception through constitutional means. It was extremely difficult to institute it when the executive is bound to operate within the legislature (the Westminster framework). So, the two organs of government have to be separated. A simple procedure was designed for the removal of judges so that a legal space was given to tame, if necessary, the judiciary. Some have even praised the 1978 Constitution saying that it ensures the independence of judiciary totally misreading the constitutional design and intent. However, it is pertinent here to note that this constitutional design is not adequate to institute constitutional warranted state of exception.

The two supportive mechanisms have been an introduction of a system of bribes and hegemonic nationalism. Presidential system from 1977 onwards is supported by institutionalization of bribe-taking and bribe-giving. Here, I do not mean only financial transactions. It would be positions, opportunities for rent-seeking etc. In this context people would withdraw their support for the system for two reasons. First, if they believe different set of principles and have not yet subordinated themselves to growing comsumerism. (These people were derogatively described as ‘dreamers’). Secondly, people would move away from the regime if they are excluded or marginalized from the system of bribe. Comodification and consumerism thus contribute immensely to the maintenance and preservation of the system of bribe and in turn the system of authoritarianism.

In Sri Lankan context like in many other countries, the maintenance of the state of exception has also been supported by promoting threat perception which is oftentimes linked with nationalist campaign. The regime can justify the state of exception by emphasizing and over inflating the security threat coming from within and without. We have witnessed not even prior to 2009 but in post 2009. During this period all three organs of power worked in synergy by suppressing all kind of resistance.

However, occasionally since 1977, we have seen many instances in which system has shown its internal flaws. If we focus only on recent events, we may mentions conflict between the CJ and the Executive when Sarath Silva was the CJ. The resignation of Sarath Fonseka from the regime signified another crack in the system What we are witnessing today is another crack of the system in which each party is using its power and authority either to integrate into the system or to replace the individuals to run the same system.

*The writer is Co-coordinator of Marx School, Colombo, Kandy and Negombo, E-mail: sumane_l@yahoo.com

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    No, Sumanasiri … This is the beginning of the democracy … You guys are lacking leaders for the opposition … Only you have discards … People like KOTTIalle have no respect among people … You need more fresh blood, Sumane … Looking at photos of the impeached CJ, she is more promising than even the number one Sarath … It’s upto her to make it … Only hiccup I see is that her love of federalism and 13th … All other ‘strengths’ like corruption is not only necessary but a prerequisite to become a successfull poltician in SL … The opposition which make big cry about corruption do it only because they are not in a position to do it … That is a sad but true situation ….
    Sumane, Bahu, Kumar, Laksiri and all other ‘educated’ people now should think about the new possibilities …. But, please do not abandon her like number one Sarath ….

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      Partly agree with you. I think CJ should start a new party, and invite all the Sri Lankans who are of the opinion that the impeachment process was illegal to support her. Since the courts have given the ruling that the impeachment is illegal, they cannot take away her civic rights. Even if a new CJ is appointed and a 5 member Supreme Court decides otherwise, the mere fact that the new CJ was appointed under illegal action, will negate the civic rights removal. This is a fantastic opportunity for democratic Sri Lankans to come out of the shell. “Idle No More” has to start now.

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        Your dream is about to get shattered. BASL is seeking to compromise with the executive.

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    I would say that it is a state of anarchy and impunity where the elected representatives and executive have contrived and placed themselves above the laws of the land.

    In any case the police and law enforcement agencies now are mere tools in the hands of the Defence Secretary. The law is subverted at the very point of investigation. Take the instance of the killings of Baratha Lakshman and now Madawela. The police investigation which prcedes any legal action is being hampered by influence form the top. Rightly speaking Mervyn Silva should have been arrested, Duminda Silva should have been arrested. Instead the CID engages in a red herring investigation which will drag on and ultimately end up with the real culprit escaping. Same in the killing of Lasantha, Khurram Sheik, Mullativu Killings, Trinco Killings etc.

    Above sham investigations and cases have been going on for some time. But now with the impeachment of the CJ it is going to be institutionalised by the appointment of a political stooge as CJ. So things will get worse. Now laws can be passes. Cases and Judgements can be fixed without any question. So where does this leave the country and people? Such concepts of state of exception are fine to discuss and analyse but the terms best used to describe the present state is dictatorship and state terror.

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    I still cannot understand where President plan to take the country.

    Except impeaching and sending to prison all those who oppose him, lying to international and local community, telling Cinderella stories to public, show off with Horse carts, luxury cars and lamborghini races, and giving big talks and speaches with dinners and lunches to whoever who could get public attention and with Bogus Media Publicity, cutouts and front page newspaper photos…..there is absolutely no productivity shown in MARA’s governing of the country, it’s economy, it’s education, Health, Agriculture, Industry or social standard of citizen.

    By not agreeing to follow simple HR rules implemented by EU……MARA led to close over 600 Free Trade indeustries with over 25,000 jobs lost and also lost GSP status. This is why even now even our under age girls trying to go to Middle East for cheap slave labour jobs, while Men are trying to flee to Australia in Wooden boats.

    Just look at the houses people live when they were shown in the Floods effected areas. All those houses look similar to the houses that VEDDA COMMUNITY LIVE.

    THERE IS NO DIFFERENCE IN THE HOUSES THAT RURAL PEASANT COMMUNITY LIVE AND THE VEDDA COMMUNITY LIVE……THEY BOTH LOOK SAME. Even see the house Rizana’s parents live…….Looks like there is no front door to that house.

    So what is the development MARA is talking about after 60 years of independence..

    Believe me readers MARA is purely playing a drama acting to hoodwink everybody.

    From having gullible speeches…..to having conferences in five star hotels and in Araliya Gaha Medura…..to giving certificates which cost ten rupees to print to children with full media exposure……to visit temples and giving dana to buddhist monks……are all to hoodwink the public to show MARA at work..

    MARA IS THE BIGGEST JOKER AND AN ACTOR IN OUR HISTORY. My father always told me not to even trust a blind cat from that area……and he is proved correct.

    Mr. 10% Divineguma is all fake, show off with island wide banners been put up and with no visible development in those areas where they had those exhibitions etc with no development… are witnessed today..

    The biggest loosers of this MARA comedy show are the rural masses…..still living like in VEDDA cadjan houses 60 years after independence with no proper income.

    Five or ten years from now country will be nothing but a hell hole…..due to both Mervin Silva like Govt. Parliament members, and with an absolute commedy central Joker dictator like President, and with a MARA ass liking future CJ…..country will be heading to a total anarchy.

    MARA’S ASCHCHARYA IS HIS ABILITY TO FOOL EVERYBODY.

    Please remember today what I told you all readers.

  • 0
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    CJ Shiranee is a good candidate to be leader of the opposition in a country where there is no opposition to the powers that be; something that is really worthy of consideration. Over to you citizens of SL!

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      Dr. Shirani Bandaranayake (Common name with Sirimavo and Chanrika) is the most ideal, qualified and astly popular to contest MARA, t th next Presaidetial Elections. She will not only Win but render MARAS deposit
      forefitted. But there are 2 problems. 1. The space of time. 2.Will Mara allow her to live that long?

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    We can remember you guys gave unconditional support to this regime. You have written several articles in sinhala news papers(specially Ravaya)to support MARA. Don’t be ‘ ukkun baba’ now. We know what is democracy.No need to teach us guys like you.
    Pera.

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    Sumansiri can I see ..

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    systematically,thinks are taking place,first they appointed current chief justice from back door without having any practical experience to sit the supreme court.thereafter they used her to write many wrong judgments to cover -up corrupted political leaders and their people.since thinks are working well,even with proof information that her husband was directly responsible for insider trading NDB shares(this please see the sundae leader article by current chief of security exchange commission).they cut very expensive deal,get her husband to be chairman in THE NATIONAL SAVING BANK and she was promoted to chief justice position.she did lot ,clear corrupted treasury secretary and cut the deal to be her husband in the insurance corporation board member. end of the game when The finance share deal was full exposed to public without any solution,they have to remove this man(he had changed even board papers of the bank to get the deal done),the Goverment had no more choice but to remove him.she decided to revenge to political leaders,managed to get support from the other members of the judiciary whose did not have back born like DR.Amarasinghe-judge-wrote the judgment against the government.do political leaders decided to remove her,they knew what she was doing ,so no need too much of time like others are think ,one night report was ready and impeached her finally game over next actor to supreme court will be appointed soon ,system will go same, attorneys will come to work next week ,people will still work with corrupted legal system and next election same people will be elected to parliament with 90% majority.great nation 2M people in middle east selves out of 20M POPULATION AND KEEP MORE SENDING JUST ONLY ONE CUT THE HEAD.

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    MaRa should impeach the CJ. It’ll be the beginning of the end for him, so at least Sri Lanka has some hope.

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    We are living in Abroad. We feel really sad about what is happening in Sri Lanka.It seems that the judicial system is abused by the executive power.The country has been corrupted. Human rights violations, curtailing the media freedom and influence of the political interferences for the day today life of the public are very common.What I can not understand is why the public are still blind and selfish. The political leaders experience the real democracy in developed countries but they lie to the public. They create unrealistic nationalism against the western countries to mislead the public. The country is rely on the foreign loan and aids. They misuse the public money to purchase the opposition MPS and drive their own project to earn commission. The most serious out come of this current crisis is collapsing the justice system in Sri Lanka is inevitable in the future.

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    CJ to be a leader if a new party and to be leader of the opposition as suggested by some if your misguided readers above? What a joke! CJ should be incarcerated for her fraudulent activities and unholy behaviours . I quote an extract . “The Parliament’s decision on the Chief Justice dealt a severe blow to the insidious forces who used her as a cat’s paw to destabilise the government’s progressive march to uplift the rural masses, Patriotic National Movement president Dr Amarasekera said the Chief Justice was behaving like a politician and her conduct was sufficient to disqualify her from the post of Chief Justice.” Unquote CJ is a dodgy character she can’t hold a candle to our Great Mahinda who saved this country from terrorism.

  • 0
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    Gunadasa Amarasekera is now in la la land

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