Democracy Under the Rule of No Law – Groundviews
Photo courtesy of BBC
Once again, the country is in a state of emergency. This time, the President has proclaimed emergency ostensibly to ensure the public security and well-being and maintenance of supplies and services essential to the life of the community in view of the prevailing emergency situation in Sri Lanka in the context of the COVID-19 pandemic now steadily on the rise throughout Sri Lanka. The real objective, however, may be to bolster the power of the executive branch of the government, given that emergencies empower the President to promulgate regulations dealing with any subject at any given time.
What is the problem here? His decision does not violate the law of the country, as he has simply implemented an instrument available under the current Constitution. Democracies across the world, from the most vibrant to the least so, usually declare a ‘state of exception’ at times of crisis – when the state is under threat of external and/or internal forces or in the event of natural disasters, financial or economic crisis, or civil unrest, among other things. Under the current COVID-19 pandemic conditions, almost all states have implemented harsh quarantine regulations that undermine civil liberties for the sake of the security and well-being of their citizens. Additionally, Sri Lanka is teetering on the edge of a dangerous financial cliff, exacerbated by the disruptions induced by the pandemic. If the situation is so serious, why this hue and cry about the President declaring a state of emergency for the maintenance of supplies and services essential for the life of the community?
Underpinnings of a democratic society
Acts of the ruler need to be assessed within the frame of the particular rule. For countries that call themselves democracies, therefore, this assessment needs to be made in terms of democratic values and commitments, after weighting the potential impact of the decision and its bearing on the democratic polity.
Since 1931, 17 years before the country became a constitutional democracy, Sri Lankans have been exercising their franchise. Despite uninterrupted democratic governance spanning seven decades since then, Sri Lankans still find themselves at the beginning of the journey of actually embracing a democratic ethos in their imagination and everyday life. Therefore, many understand elections not as the minimum criterion but the sole criterion of a democratic state.
Put simply, democracy is the rule of the people. This means people within the political unit are equal, their destiny is in their hands and not in the hands of a supreme (or even superior) authority, and power flows from the people to the ruler. Under modern democracy, people give powers to a ruler by way of an election for a limited period of time. This happens on the condition that the people continue to wield the capacity to curtail the powers of the ruler/s if not to unseat them. In a democracy, these arrangements are stipulated in a Constitution, and rulers and the ruled alike are expected to abide by it; the powers of the rulers are subject to checks-balances, and they have to function within a given institutional structure that aims to deter elected members from abusing their authority. Democratic societies emphasise the Rule of Law as it enables citizens to enjoy various freedoms while being safeguarded from oppressive tendencies of the rulers. Therefore, unlike subjects in old feudal societies, democracy has produced free citizens who decide what is good for themselves. Many struggles – some quite bloody – have been waged through the course of history to ensure the securing of this one right; the right of self-rule. So, any attempt of concentrating powers in the hands of one person or a few individuals, whatever the justification, means democracy is in danger. Therefore, the declaration of an emergency is always and invariably undermines democracy in any society.
Exception as the norm
The Sri Lankan Republic has lived most of its life in states of exception. Therefore, exception has become the norm not only for rulers but also the people. Check points, barricades, arbitrary arrests and the military getting involved in civilian affairs are not exceptional circumstances for Sri Lankans. In fact, on the eve of the 2019 Presidential election, Gotabaya Rajapaksa publicly acknowledged that people (referring to his Sinhala-Buddhist support base) like the ‘tough guy’ persona that he exhibited as the Secretary of Defence during his brother’s Presidency.
In every democracy, it is common to find a tension between order and justice. Order constrains public life, while justice emphasizes the rights and freedoms of citizens. Having lived under an orchestrated ‘state of permanent emergency’, especially the majoritarian majority community of Sri Lanka, comprehends its everyday issues and potential solutions for them within the realm of order and discipline. Therefore, Sri Lankan democracy, having existed in almost a continuous state of emergency for decades, has produced a solid support base for oppressors: in this world view, demanding rights is akin to terrorism, and cherishing freedom is heresy. In such a political culture, people live as slaves rather than citizens, regardless of whether there are elections or not. This voluntary servitude taking root in the majority psyche garners much needed public legitimacy for anti-democratic advances on the part of rulers.
The introduction of emergency regulations, irrespective of its justification, will also augment the current leadership’s aspiration of militarizing the state – transferring the civilian state institution to the control of the military. There has been much talk about the President’s fetish for military control despite the absence of a markedly better delivery of duties and responsibilities by the military as compared to the bureaucracy that is often labelled as corrupt and lethargic.
Space for democratic contestation
In a democracy, people not only elect their leaders at elections, but they also continue to be active to in between elections to win their rights to live a dignified life. A democratic polity is of paramount importance to realize a democratic society where people are free and equal. A democratic polity provides space within which people engage in perpetual struggles against all forms of oppression – be it ethnic, religious, gender and sexuality-based discrimination or oppression of the capitalist economic order – and hold rulers accountable for their actions and inactions. Therefore, the space for struggle and tolerance towards contestation and dissent is fundamental for a meaningful democracy. The irony of the political classes, though admittedly not unique to Sri Lanka, is that those who champion such a democratic space while in the opposition become ruthless oppressors when in power. Therefore this is not an accusation that can be hurled only at the Gotabaya Rajapaksa regime.
However, in his two years in power, the President has proven time and again, that he does not expect active citizenship where people question the government and protest against injustice. Over a year has passed since Hejaaz Hizbullah and Ahnaf Jazeem were arrested and they remain imprisoned to date; teachers who protested demanding the settlement of their salary dispute were suppressed using quarantine rule; and police was deployed to disrupt the protests against the re-opening of wine stores during lockdown. The irony of the matter is that the government only saw a fault in the protestors who adhered to all the health protocols and not with the wine stores that breach quarantine laws in every possible way, not to mention their own political rallies, public funerals, birthday parties, and so on. Finally, despite a supposed countrywide lockdown, the government not only abstained from making an attempt to maintain the lockdown, but in fact tacitly encouraged people to break the law. Therefore, it is clear that for the Gotabaya Rajapaksa regime the Rule of Law is not what is in the books, but what he says.
In addition, past two years have witnessed government exploiting the pandemic situation to forward its political and economic agendas. Passing the Port City Bill in Parliament and signing an agreement with a US company to handover a 40% share of the Kerawalapitiya Power Plant are but two examples. In parallel, severe breach of health regulations and labour regulations in the free trade zones where poor village women are exploited continued to be ignored, not to mention many other cases where extreme exploitation worked to the benefit of expanding state coffers. In Gotabaya Rajapaksa’s vision, as revealed in the garlic scam, it seems that the whistle blower is guiltier than the culprit. What can we expect in conditions of emergency is that oppressors would be let loose with no checks and balances, further constraining our space not only to resist but may be even to talk.
Therefore, the current state of emergency for the maintenance of supplies and essential services may seem justified to the uncritical mind, I believe the government is getting ready for a much more serious eventuality. As I have already argued, a state of emergency is nothing but the antithesis of democracy. Not only does it shrink space to engage in the struggle to realise a just and fair society but it may lead to people getting used to being subjects due to prolonged living in a seemingly perpetual state of emergency.
The President does not seem to make his decision on the basis of rational calculations. Therefore, he is fixated on militarising the state like a gambler who bets more and more as he loses. Under a state of emergency, freeing thus from checks and balances the Executive embodied by a person with no history of democratic politics nor formal orientation to such, is very dangerous. As a political community, we seem to be gambling democracy away for stability, with prospects for neither. The danger here is that if the President loses this bet, the country will collapse into utter chaos; but if not, it may well be the end of democracy in Sri Lanka. It is a lose-lose either way.
Rulers rule their populations either through consensus or through coercion. Rulers who enjoy political legitimacy hardly resort to coercion or violence as their authority is unchallenged. This phenomenon can be seen in the global order as well. The US and its allies rushing their war ships to South China and the Pacific is not at all a sign of their strength, but rather otherwise. In the same way, Gotabaya Rajapaksa seeking more powers to regulate the groups that maintain the supplies and essential services, who happen to be his own cronies, clearly signs that he has begun to see the waning of his powers much faster than he expected. However, not only do I believe that emergency undermines the country’s democratic fabric but I also do not think that it could rescue the President if that is what he expects from this Gazette.
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