Laws and the constitution blatantly violated with impunity
View(s):(Excerpts of a comprehensive presentation made by Dr. Deepika Udagama, Head, Department of Law, University of Peradeniya recently at the Prof. Nandadasa Kodagoda 17th memorial oration held in Colombo. The title of the presentation was “We the People”: Reflections on Governance and Civic Engagement in Sri Lanka”.)
Civic Engagement
For far too long, we have been obsessed with the study and analysis of the doings and the idiosyncrasies of the political elite. We thoroughly scrutinise their public statements, autobiographies (though there are very few in Sri Lanka) and biographies and so on.
Just as much as history is written and seen through the prism of elite actors, so also in our study of contemporary politics our focus is almost entirely on the political movers and shakers. Will politician A fall out with politician B? If so, what will happen to the government and the making of policy X ? That is how our political discourse goes. It is almost by chance we discover that they are nothing but political creatures of our own making. We have voted for them, sometimes lionized them and acknowledged them (with varying degrees of enthusiasm) as our political leaders who can show us the way forward. That they are our political representatives who are there to do our bidding is, well, mostly a secondary thought. What all of the above means is that the sense we have of our own political agency is minimal.
File picture of a protest against the collapse of a finance company.
As the analyses we make is premised on democratic governance, is it not equally, if not more, important to turn the searchlight on us, the citizens, in whom sovereignty lies under our Constitution? Is it not pertinent to ask ourselves the questions as to what extent we fashion policies through democratic participation?; Do we have faith in our democratic entitlements and powers?; Do we have the confidence that we can positively change policies and practices that affect us through the use of those powers?; Do we possess the necessary knowledge and skills for such purposes?; Or, are we content to be mere political instruments that are occasionally cajoled into taking sides during election time by those who nurse political ambitions?
Democratic Ethos
As we all know, Universal adult franchise was introduced to Sri Lanka (then Ceylon) in 1931 by the British colonial authorities through the progressive Donoughmore Reforms. We were one of the first colonies in the British Empire to be granted universal adult franchise. Since then we have changed governments only through electoral politics, even during periods of tremendous political violence and upheaval.
… are our attitudes and aspirations animated by democratic values such as free speech and expression, the right of dissent, the right to information, freedom of association and assembly, the right to claim our rights through democratic institutions? On the other hand, if our thoughts, actions and ideals are animated by other values (e.g. those that make us ask for ‘favours’ from political patrons), what are they? Or, is it the case that democratic values and non-democratic values exist side by side to be used selectively as the occasion suits?
Investigating the political value base of Sri Lankan society in a nuanced and comprehensive manner is going to be a vast future research endeavour, but that must be done. The results will reveal quite a lot about ourselves and also perhaps explain the enormous contradictions we see in our literate society.
Fear psychosis
Dr. Deepika Udagama
The ever-present “fear psychosis” and the failure to mobilise around common causes need to be explored. Expressions of fear are of two types: one is about fear to personal security, and the other is about fear of losing benefits or entitlements such as one’s job, promotions, titles and perks. Fear that is entertained is perhaps amplified by the knowledge that others will not come to one’s assistance and also the lack of faith in institutions and processes that are expected to provide remedies. It is also clearly the case that we suffer from the described “fear psychosis” because our democratic orientation is very weak. If we were fully convinced of the critical value of freedom of association, freedom of assembly and freedom of expression in a democracy, we would not fail so often to take collective action in the face of violations of our rights and liberties.
Of course, during the many cycles of violence our country has gone through, thousands were victims of violence unleashed by all parties concerned, be it torture, abductions, enforced disappearances and extra-judicial killings. It is also no secret that the dismal state of the rule of law in the country does not inspire confidence in the citizenry to seek protection through the law. While there is merit to those arguments, we must also seriously give thought to the consequences of remaining passive. In the long run, are we not saving our individual interests through passivity by sacrificing the future of a nation? It would be rather preposterous to suggest that citizens should be engaged only when the zone is clear.
One can cite many comparative instances in which citizen action prevailed over entrenched authoritarianism and violence. Some of the best examples that come to mind are the Arab Spring, the Civil Rights Movement in the US, people’s resistance against the apartheid régime in South Africa and the generals in Burma and how the people of India valiantly resisted the state of emergency declared during Prime Minister Indira Gandhi’s tenure in 1975.
If the Indian citizenry caved in to authoritarianism then, the India of today would have been a very different one. It also must be said that a healthy democracy depends not only on large scale people’s movements; but on the everyday small steps that we take individually and collectively to articulate our ideas and views, question what is illegal and assist others who have been victimised to obtain redress.
Silence of key institutions
In many public institutions in Sri Lanka, including the higher education sector, there is grave concern that deliberative bodies have fallen silent. There is a sullen deference to authority citing some of the above reasons, but the dissent and discontent that is not articulated are palpable. The end result of this silence is that decision-making happens almost by default without the benefit of a process of informed deliberation. The entrenchment of authoritarianism through this silent disengagement is all too obvious. Yet, the erosion continues unabated.Of course, you may rightly pose the question as to why instances of successful public interventions are not been recounted here. The truth is that such instances are very few and far between.
My view is that there is more successful citizen mobilisation and intervention among the working class communities than among the middle or upper classes. We all know that democracy thrives with an enlightened middle class. But most middle class civic bodies—such as chambers of commerce and professional bodies—are disengaged from public issues. It is indeed a welcome change to see the Bar Association of Sri Lanka at present being very active on behalf of the rule of law and the right and liberties of the people.
If the above observation is correct, is it that the more literate and privileged classes in Sri Lanka have consciously abdicated their responsibilities toward democracy? Is it the case that greater possibilities of rapid social mobility in Sri Lanka, made even more rapid through political patronage and a liberalised economy, blind us to larger social issues? Whatever the causes are, it is hard to envisage us having well established democratic social movements here such as the right to information and anti-corruption movements or the massive “brave heart” campaign against sexual violence in India. Instead what have gained ground in Sri Lanka are movements based on ethno-religious nationalism.
Democracy and Civic Engagement
The idea of democracy is premised on the principle of the will of the autonomous individual, who is a citizen of an organised political community. Sovereign authority to govern is vested in the individual who is deemed all powerful. In other words, to use monarchical parlance, in a democracy it is us, the people, who are kings and queens and princes and princesses. We are supposed to be the prime movers and shakers who decide on our futures, our destinies. The design of democratic governance of a State, therefore, must have as its primary objective the serving of the will of the peoples—of course not only the will of those in privileged groups, but of all, recognizing the diversity and pluralism of aspirations among us.The difference between democracy and forms of authoritarian governance is just that. In authoritarian systems, power is concentrated in an individual, such as in a hereditary monarch or a dictator, or in a group of persons, as in an oligarchy. Powers of governance or of decision making do not lie with the people in such a system—we are merely obedient subjects, dependent on the whims and fancies of those who possess power. It is precisely because of the stark difference between democracy and non-democratic political systems that the citizen’s role in a democracy—with attendant rights and duties—is of such vital importance.
Democratic constitutions are expected to establish institutions and systems of governance that function entirely on behalf of the people and which are accountable to the people so that our needs, rights and liberties are protected to a maximum. Fundamental features of liberal democratic governance such as separation of powers, checks and balances, protection of human rights, independence of the judiciary and the franchise are all expected to be a part of modern democratic constitutions for that reason.
The overall expectation, however, is that the institutions and systems put in place will function optimally and effectively not on their own, but through active public opinion and scrutiny.
Strong Democratic Cultures
A strong assumption that colours political thinking in non-western societies, including ours, is that democracy is a western invention as are human rights. Therefore, this transplanted value system, we are told, will take time to take root, if at all. I do not agree with that position. To say that ideas of human liberty, human dignity and people friendly governance emanated only from the west is a frontal insult to all non-western societies. Equality–the most revolutionary political idea of human kind—freedom of thought and of expression, right of dissent, the right to a remedy, consultative forms of governance and religious pluralism are among democratic ideas that have been created by indigenous thinking and practiced in non-western societies for millennia. That fact is borne out by both eastern and western scholars. This does not mean to say that all eastern thought is democratic. Just like some forms of western philosophical thought, some eastern thought is also not compatible with democratic values.
In my opinion, what is perhaps exclusively western is the form of liberal democracy practiced today. The idea of government via a social contract, of separation of powers between three branches of government and of checks and balances, independence of the judiciary and so on could be argued to be inventions by western political thinkers. However, to say that democratic values and principles and, indeed the spirit of democracy, are all exclusively western is an absolute fallacy, in my opinion. Even if structures of modern governance are all western and are alien to us, why is it that we are unable to develop structures relevant to us and infuse governance with democratic values and traditions that are inherent in our cultures?
Education to the rescue
I do believe that there is broad agreement that something is radically wrong with our political culture. Some people call it the “political rot”. But, as I stated at the beginning of this address, mostly we focus on the venality and callousness of the political establishment. Perhaps, just a few of us acknowledge the linkage between civic disengagement and the crisis in democracy in the country.
Be that as it may, there are many solutions suggested to correct the problematic trajectory of governance in the country. Almost all of them pertain to constitutional or legal reform, be it the abolition of the executive presidency, the re-introduction of the 17th Amendment (to the 1978 Constitution), power sharing and reform of election laws. Even though a student of the law, I am very skeptical that constitutional and legal reform alone would succeed in democratizing our political system. Of course, good laws are essential. But laws, after all, are interpreted and implemented according to the socio-political ethos of a society. We see how laws, including the Constitution, are so blatantly violated with impunity today. So, without a change of the mindset can we expect deeply rooted change? I do not think so. That is why I would put my stock in education.
The current education system, it seems to me, is the very antithesis of democratic education. Meeting the demands of the economy and the related employment market is the key goal, we are told. Science, Mathematics, English and IT are emphasized with the social sciences downgraded as being almost irrelevant to the market. Fostering democratic values and a civic consciousness are, if at all, very peripheral to the major objectives.
What is promoted now in World Bank parlance are “soft skills” (e.g. skills relating to communication, team work, organizing and also promoting ethnic harmony). Such skills are taught more through extra-curricular activities than as integral parts of the curriculum. The Social Studies curriculum at secondary education level has some lessons on the political system and the Constitution. Teaching is generally top-down and the classroom is still not an open space for challenging ideas and debate. Students spend a major portion of their time at cram shops—there’s hardly any time for anything else for them other than a tele-drama or two at the end of the day. Life’s worth is determined by exam results, even when you happen to be in grade five. Examinations are largely traumatic events, both for students and the parents. But everybody soldiers on expecting to achieve the Sri Lankan Dream.
Among those deemed the best and the brightest (based entirely on exam results) and who gain admission to our public university system, knowledge of current events, whether local or global is appallingly weak.
Very rarely does one come across a student who reads a daily newspaper or who is a keen observer of current events who can give you an informed analysis on a public issue. One gets blank stares when you refer to major public happenings such as the impeachment of the Chief Justice or the CHOGM conference. In one class of about 65 students it seemed that most had not heard of the Burgher community of Sri Lanka. When a question is asked about the political system of the country, there are many students who would say “but we don’t know; we didn’t study political science for A Levels”. Hardly a system that educates for life, leave alone democracy! The youngsters are bright and have tremendous potential. But the system has let them down, together with the country, very badly.
Conclusion
As we face the political crossroads we are at today, it is imperative that we reflect on our role as citizens and decide on whether we are going to wait for change, or recognise our power and worth as citizens and be the driving force of the new beginnings we wish for.
| Real-life examples
Even in the absence of comprehensive scientific findings, what we experience or observe on a daily basis is common enough for us to come to at least some initial conclusions about our political values that inform our responses to issues of concern. Let me present some of my own observations/experiences to illustrate the point. Please recognise that these situations are being recounted not in a spirit of ridiculing the parties concerned, but in order to recognise certain ground realities: i) A working class mother complains that the principal and teachers of her child’s school constantly ask for money for various purposes. This time the complaint is that each child is required to bring Rs. 2000 to paint the class. There are 48 students in the class, and the collection then will be Rs. 96,000. “How can painting the class cost so much?” the mother asks me. “We don’t know how they spend the money” she laments. When asked what the PTA is doing about it, she says that nobody wants to question the teachers for fear of the child being ill-treated. “Api bhayay (we are fearful/afraid)” she says. “So, what we all do is keep quiet. Each parent is only concerned about one’s own child. Because we are not together the teachers constantly exploit our silence”. ii) I am at a human rights education programme in a school in the North Central province. The students and the teachers, a lively group, ask me during the tea break whether I can please request the MP, who had been invited by the principal to the event, whether they could be given a good science laboratory and a library. So, why don’t they ask him—after all the MP is from their area? “Appo api bhayay” is the answer.“Because you are from the university he will not scold you.” iii) A group of academics complain that irregular appointments are being made in their university because of political influence. Another complaint is that an irregular extension of service has been made, again through political interference. So what are they going to do about those irregularities? In the first instance, the academics say that their group is pressing ahead with their complaint, but they lament that there is very little support from other academics as they are very worried about their promotions, scholarships and leave and so on (i.e.“we don’t want to get into trouble” response). In the latter case, I was told that most staff members of the faculty concerned feel that as it is difficult to fight “these political cases”, what they want to do is to also ask for similar extensions of service for everybody. In other words, their position is– if you cannot beat them, join them. iv) Students complain to a Head of Department that it is very difficult to understand the lectures of a particular lecturer. Have they spoken to the lecturer about it? “No, we are scared” they say “the lecturer will take it out on us”. So, why don’t they go in a large group? “Very few will join us, and only those few who will go will get penalised”. v) Academics and other professionals stating at meetings, seminars and even in the classroom that “it (whatever matter under discussion) is a controversial issue, I do not want to comment on that”. vi) I ask a member of the legal profession why he had accepted an appointment to an independent commission when the appointment was clearly unconstitutional as it was made without adhering to the Seventeenth Amendment to the Constitution. “What can I do when the highest in the land appoints me?” was his response. He studiously avoids answering the question on the legality of the appointment. Then he chastises me –“The problem with you Deepika is that you live in an ideal world; we don’t”. vii) Some years ago, an environmental organization came forward to petition the courts about a powerful generator that had been installed by a private company in a residential area, causing severe health problems due to noise pollution. As public interest litigation is of narrow scope under the law of Sri Lanka, they solicited volunteers from the neighbourhood to be petitioners. Although almost everybody in the neighbourhood complained of the noise, hardly anyone wanted to join in as petitioners. But when the organization persisted and won the case, they all were delighted. Human rights lawyers too, I am sure, could provide many such examples. viii) We all know that sexual harassment, or “eve teasing” as they say in India, is rampant in our public transport system. But very few women, who are harassed, will raise cries or complain. My students tell me that it is so, because most of the time other passengers not only do not support the victim, but they look at her as if she is the guilty party. Now that I too constantly commute to Peradeniya, I can confirm what they say. “Speaking up is wrong” is the general message one gets—“just why can’t you put up with it and save everybody the embarrassment of a public spectacle”. ix) A CEO of a company that is a giant in the retail business tells a university audience that compared to consumers elsewhere, Sri Lankan consumers are a meek lot. “We get away with a lot” he says. I am certain that almost all of you can relate to the instances and responses I have recounted. Commonly recurring responses to the query about inaction are: “we are fearful”, “we don’t want to get penalized”, “we don’t get the support of others, so we too keep quiet”. Let me add another response I keep hearing often—“Well, you can afford to dissent or talk about controversial matters because you are a human rights person. But if we say that it will not go down well (with the authorities)”. My response to the last is that everyone in a democracy is expected to be (a) “human rights person”. |