The Rule of Law: Is it worth defending?
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.
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