Chief Justice and the struggle for democracy

| by Izeth Hussain

( November 28, 2012, Colombo, Sri Lanka Guardian) By now practically everything useful that can be said about the fundamentals of the impeachment move against the Chief Justice has already been said, amply and cogently in the editorials and erudite commentaries that have been appearing in our newspapers. I will not recapitulate any of it. Instead I will make a couple of suggestions, before getting to the main focus of this article which is on the struggle for democracy. There does seem to exist a broad national consensus that the Government has acted hastily and put itself in the wrong. On one point there seems to exist a virtual unanimity: the Government is acting unconstitutionally in arrogating to Parliament judicial functions in regard to the alleged misdeeds of the Chief Justice whereas under the Constitution Parliament can exercise such functions only in regard to its own immunities, privileges, and powers. The question of whether the Standing Orders of Parliament can legitimately negate or modify a Constitutional provision has still to be determined by the Judiciary. For various reasons the Government seems to be in a no-win situation. It would therefore be well-advised to stop the impeachment proceedings. In making this suggestion I have particularly in mind international reactions, which we can confidently expect to be overwhelmingly adverse.

We are not living under a dictatorship. If we were this article would not be published. We do have a democracy, though a deeply flawed one, which might be called a quasi-democracy. Anyway, we have sufficient democratic space to move meaningfully towards a fully functioning democracy.

On one point the Chief Justice could be vulnerable. Her husband has reportedly been the beneficiary of privileged treatment by the Government. Patronage is of the essence of politics in Sri Lanka, and most of our Governments have been notorious for making political appointments, the beneficiaries of which are expected to side with the Government. The Chief Justice is of course a separate legal person, and she cannot be blamed for what her husband does. But it is a fact that we cannot ignore that the nexus in the public mind between political appointments and influence is very powerful. There could therefore be a case for the Chief Justice to bow out gracefully – after meeting the charges made against her - in the interest of establishing the highest norms for the Judiciary.

My main focus of interest in this article is on the struggle for democracy in Sri Lanka, of which the reactions against the impeachment move are an integral part. Why has it proved to be so difficult to establish and maintain a fully-functioning democracy in Sri Lanka? Why has that been so much easier in India? Why is there so powerful a drive in Sri Lanka for a highly authoritarian form of democracy, or a dictatorship under the guise of democracy? Before getting to all that I will first make some observations on the problem of the "supremacy of Parliament". This is the problem most relevant to democracy that has been highlighted by the impeachment move.

I believe that it was J. R. Jayewardene who created confusion in the public mind about the supremacy of Parliament by referring several times to a famous episode in British history. In 1642 a member of the Commons, Pym, and five of his associates were formally charged with impeachment by the Attorney General in the House of Lords, and their immediate arrest was demanded. Both houses of parliament made it clear that they would not surrender the accused, but articles charging the six with subverting the fundamental laws of the realm were then made public. Next, King Charles the First proceeded to Parliament accompanied by a show of armed might, occupied the Speaker’s chair, and asked for the six accused to be delivered up to him. There was silence in the House. The King then asked the Speaker, Lenthall by name, to point out Pym and his associates. The Speaker gave his historic reply that he had "neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me". The King had no alternative but to depart as Pym and his associates were not there. He stood exposed as not just a despot but as a "blundering despot" in the words of Simon Schama, from whose A History of Britain I have extracted these details.

It was one of the great moments in the evolution of democracy in Britain. The Tudor absolutism that had reigned since Henry VIII, and was inherited by the Stuarts, was being checked and reversed in a process that led to the Great Revolution of 1688. Lord Acton gave the most memorable account of the significance of that Revolution. After listing its shortcomings – a devastating list that made the Revolution seem derisory – he wrote "And yet it is the greatest thing done by the English nation. It established the State upon a contract, and set up the doctrine that a breach of contract forfeited the crown …. Parliament became supreme in administration as well as in legislation. The king became its servant on good behaviour, liable to dismissal for himself or his ministers."

The supremacy of Parliament is asserted in that statement. But it was a supremacy over the other institutions of the State, not over the people, because the contractual basis of Government was also asserted. JRJ by his behaviour, befitting a God-King because he boasted about his having more powers than the kings of yore, gave the impression that he and Parliament were supreme over the people. That misconception, which still seems to be prevalent, must be corrected. The sovereignty of the people, entrenched in our Constitution, must be asserted loudly. The most that can be conceded for the notion of Parliamentary supremacy is that the Parliament does theoretically have a primacy over the Administration and the Judiciary because unlike them it is directly elected by the people. But at the same time we must stress the importance of the separation of powers and having in place a system of checks and balances. The entrenchment of democracy in this country requires that the arrogance of power, which lurks behind the assertion of Parliamentary supremacy, be tamed.

I come now to our struggle for democracy. The national consensus in Sri Lanka is certainly in favour of a stable and fully functioning democracy. Why, then, has the struggle for it been so protracted and so difficult? The first attaint on democracy came in 1964 when the then Government took over the Lake House press – a portent of things to come because the historical record shows that when democracy is to be eroded or destroyed the first target is the free press. Earlier, in 1962, there had been a coup attempt showing that a potentially powerful segment of our people had a predilection for dictatorship. In 1965 Dudley Senanayake assumed power and came to be seen as our one true-blue democrat, an assessment that I hold to be inconsistent with the fact that he gave top positions in the State sector to persons who had played important roles in the abortive coup. An alternative view of those persons, a British democratic view, was encapsulated by Lord Mountbatten – in a conversation with our late Justice Minister Nissanka Wijeyeratne – in just one word: "Bastards". The 1977 SLFP Government awarded itself two additional years in power, which in my view meant that it had no democratic legitimacy for two years. Thereafter under the 1977 UNP regime there was a virtual collapse of democracy for seventeen long years.

These travails of democracy in Sri Lanka are in stark contrast to its smooth functioning in India, except for the two years of Indira Gandhi’s Emergency from 1977. That provoked mass protests from the people, with scores of thousands going to jail voluntarily, making Indira herself re-institute democracy, which has held sway since then without undergoing any further serious vicissitudes. In Sri Lanka, D.B. Wijetunga re-instituted democracy by holding free and fair elections in 1994. It seemed for some years thereafter that we were well on the way to establishing a stable and fully functioning democracy for which many felt that the only desideratum was the re-institution of a Parliamentary system, getting rid of the garbage of our monstrously dictatorial executive Presidency. That has not been possible, and from around 2005 we saw further attaints on democracy which many of us thought could be excused or explained away on the ground that the war against the LTTE had really become serious, unlike under earlier governments. But now, three years after the conclusion of the war, we find that the very fundamentals of democracy are under threat with the challenge to the independence of the Judiciary.

The stark contrast between the Sri Lankan and Indian experience of democracy might be explained, partly if not wholly, by historically-conditioned cultural factors. This is a vast and complex subject, about which I will do no more here than jot down a few points. Both countries have societies structured on caste – except for the Muslim component in them – and it might seem reasonable to suppose that in both the upper order in particular would show a fierce drive for hierarchy that would be antipathetic to democracy. My essential case is that while that may be so, there are in India unlike in Sri Lanka powerful countervailing factors working against the inegalitarianism of caste, and that could favour democracy.

The Indian caste system is supposedly based on the four Varnas of the Brahmins, the Kshatriyas (the warrior caste which was a bogus caste now extinct), the Vaishyas or Banias (businessmen), and the Shudras (those who engage in physical toil). Actually far more important than the Varna is the Jati, which is the term designating caste in India. The Brahmins are limited to priestly functions and have neither power nor money, while the Kshatriyas don’t really exist, so that the Banias don’t feel inferior in worldly terms. This may be why in India people who don’t belong to the top Brahmin caste openly declare their caste and are proud of it. Furthermore, there seems to be considerable caste mobility in India with castes being able to go up the socio-economic ladder. We have to take count of the fact that within Hinduism there have been the Bakthi cults which for the most part have opposed caste, and there is the figure of the sanyasi who is regarded as transcending caste. Outside Hinduism there is the Sikh religion which opposed caste, but also had a symbiotic relationship with Hinduism, as shown for instance by the fact that in parts of India the eldest son in Hindu families was automatically made an adherent of the Sikh religion. Then there was the major impact made by Islam, a religion which can easily be interpreted as favoring democracy as the ideal form of government. It was the proud boast of Maulana Abul Kalam Azad, the Muslim in the Indian National Congress, that it was the Muslims, not the British, who brought democracy to India.

The stark contrast between the travails of democracy in Sri Lanka and India might be explicable on other non-cultural grounds as well. For instance, an explanation might be sought in the fact that India has an authentic nation state whereas Sri Lanka has a tribal state. The former tries to get its legitimacy by giving fair and equal treatment to all ethnic groups in the process of working towards a better life for all. The latter may indeed work towards a better life for all – I would acknowledge that broadly speaking Sri Lankan governments have tried to do precisely that – but it remains that the tribal state gets its legitimacy, above all, by establishing and maintaining a dominant position for the majority ethnic group. The nation state is consistent with democracy, the tribal state is not. That is probably why Sri Lankan democracy has so chequered a history unlike the one in India. But this explanation requires another explanation because it leads to the following question: Why has India chosen a nation state while Sri Lanka has chosen a tribal state? I see no alternative to seeking an explanation in cultural factors, of the sort that I have listed above.

However, cultures are not all of a piece, they have contrasts and contradictions, and so we have to presume that Sri Lankan culture has factors that are favorable to democracy. After all, Sri Lanka was over a long period one of the very few democracies in the third world, and we have had a fully-functioning democracy in spells. The problem facing us now is how to re-institute it and make it stable. The prospect for doing that is not bad at all. I will now list some of the reasons for my making that estimate.

We are not living under a dictatorship. If we were this article would not be published. We do have a democracy, though a deeply flawed one, which might be called a quasi-democracy. Anyway, we have sufficient democratic space to move meaningfully towards a fully functioning democracy. The Opposition is far more active than during the period from 1977 to 1994. So is our civil society, though it is far from being an ideal one. Above all, the international community is far more favorable to democracy than it was between 1977 and 1994. The alternatives facing us are stark. We can take action towards a stable and fully functioning democracy. Or we can be our own executioners.