The Rule of Law:
Is it worth defending?
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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