Living in a state of exceptionJanuary 11, 2013, 12:00 pm
By 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