Precarious times and possible futures

As we watch a government taking action with the help of the security forces, unapologetic for its authoritarian ways, the struggle to maintain democracy may only be beginning

The challenge to human rights is twofold. The first is that it is a Western structure created around the values of the Enlightenment where the individual is valued over the community and where reason is given prime of place over social values of cohesion and harmony. The second argument is about process and the double standards in the application of human rights. The rich and powerful countries are not held accountable while smaller countries may face the full force of the international political and legal process

Following is the keynote address delivered at the launch of the Junior Bar Journal on the theme ‘Law in context: Current trends and future projections’ held on 16 December 

We live in precarious times. But precarious times are also times of great opportunity. The end of World War Two gave birth to the Universal Declaration of Human Rights and the end of Apartheid gave birth to the South African constitution, a constitution that has inspired the legal community for decades. A great deal is happening in the world and in Sri Lanka in particular, creating a fog of ideas and desperation to see our way out of the darkness. 

This fog of ideas is based on the fact that there is a fundamental struggle taking place on the kind of society people wish to construct for themselves. This struggle over very basic ideas animates the most virulent hate and bias that we see throughout the world. What I am going to do in this lecture is to spell out some of those struggles, especially those relevant to young lawyers, and see what the future holds for their resolution.

The first debate in this fog of ideas relates to the debate on human rights. For my generation of lawyers working in public law at the international level, the most inspiring documents were those related to human rights – the universal declaration, the covenants and many other conventions relating to torture, women and children among others. Though today human rights and humanitarian law are dismissed as Western, at the Bandung conference in the 1950s, the Non-Aligned movement openly embraced human rights and it would be the driving force in getting rid of apartheid in South Africa and challenging disappearances in Latin America. Third World progressive activists were strong supporters of human rights during this period writing personally to heads of state when prisoners of conscience were taken in. 

Amnesty International’s first visit to Sri Lanka in the 1970s was fully supported by everyone who worked on issues of social justice. Leading personalities like Suriya Wickremesinghe, Kumari Jayawardena, Professor Sarathchandra, and Raja Goonesekere formed the civil rights movement after the 1971 insurrection basing their founding principles on the Universal Declaration of Human Rights. Today both the edifice and the norms are under a great deal of challenge especially from universities and think tanks many of them situated in the Western world. 

The challenge to human rights is twofold. The first is that it is a Western structure created around the values of the Enlightenment where the individual is valued over the community and where reason is given prime of place over social values of cohesion and harmony. The second argument is about process and the double standards in the application of human rights. The rich and powerful countries are not held accountable while smaller countries may face the full force of the international political and legal process.

My argument has always been that the values of human rights may have resonance with some traditional values but they actually derive from a consent-based system of law. By signing the UN charter and the many conventions on human rights Sri Lanka and others have agreed to be governed by these norms and standards and as a result must be held responsible for their implementation. As for the argument of double standards, though this is certainly the case and the rich and powerful countries do enjoy impunity, it does not mean that we should put forward a position that we should have no standards at all. 

The political and legal strategy should be to make more countries accountable for their actions. In national systems like ours the rich and the powerful also get away with a great deal and with a high level of impunity. The answer is not to throw away the law but to make sure that the system reforms itself to make everyone more accountable. For this we need not only law reform but also public mobilisation, national and international solidarity as well as political will. 

The Suriya Wickremesinghe generation in Sri Lanka which founded the national civil rights movement was followed in the 1990s by a generation of some intellectuals who were part of a movement that spearheaded the post modern assault on human rights. In my mid thirties I was deeply influenced by the thinker Michel Foucault whose life’s ambition was to deconstruct the European Enlightenment and the particular cruelty it has visited on the world. Seeing human rights as a part of that legacy he saw it just as a façade for imperial and national political ambition. In his famous book Discipline and Punish he analyses the legal process and the carceral system that goes with it.  He refuses to acknowledge that law, the legal system and the judiciary could be an autonomous sphere making decisions on positivistic principles. He insisted that politics, hidden or open always guided their intervention. He is also particularly harsh on those who try to rehabilitate and mould prisoners in their own image. Humanism was a dirty word for him, a thin veil that hid the real exercise of power in any given situation. He saw the humanitarian impulse and the desire to save the world as another side of the European conquest.

Later in life as part of the United Nations I went constantly to the field to situations of armed conflict. As I landed in Rwanda in 1995 a month after the genocide I was taken to a school. Throughout the school, on the floor was skeleton after skeleton, their bodies smashed and mutilated by the perpetrators. I was then taken to a church with a beautiful sculpture of the Madonna. Beneath her, again bodies upon bodies, a terrible haven for violence and destruction. Children, women, old men – none were spared. The victims who survived reached out to us. “Take our story tell it to the world”, they said.

I realised then that Foucault only saw the structures; he did not feel the pain. The world just could not be silent. It needed a language and discourse to give expression to this outrage. After that, in a qualified way, I embraced international human rights and humanitarian law as a vocation.

The embrace of human rights and humanitarian law with a realistic understanding of geopolitics becomes all the more important in the face of governments developing deadly styles of warfare while also increasing repression at home. I spent some time in an Afghan village and watched as children cowered under their beds fearing drone strikes. To this day governments will not move to formulate a convention on drones. The technology of war has totally outpaced the laws of war. As a member of the International Commission of Experts on Ethiopia I chronicled just two months ago the devastating consequences of aerial bombardment by drones as well as other forms of weapons that operated on the ground. Total destruction. The Ukraine war is another reminder. Regulating and curtailing these weapons is a major challenge for the future in the area of humanitarian law. 

More repressive legislation and practices

At the same time many countries, including our own government, are developing more repressive legislation and practices to prevent freedom of speech, freedom of organisation and political protest. Under the guise of fighting terrorism all manner of legislation is brought that result in incarcerating mostly young people. My first human rights task in the 1980s was to take down an affidavit of a young prisoner kept at Boosa who had been tortured. It was clear to me that he had committed no act of terrorism though he was taken under the Prevention of Terrorism Act. He just came from a cohort of young men that the state suspected as being likely to be influenced. I saw the same thing when I went to Batticaloa last year and met with wives and families who had their husbands and sons taken under the PTA after the Easter attacks. There were no charges but they were not released. 

Incarcerating young men so as to control their behaviour and beliefs is not a healthy or productive practice for any criminal justice system. In a book recently shortlisted for the Pulitzer Prize Carla Power went around the world looking at counter terrorism programs and concludes that this practice of incarceration does not really work and the young men emerging from such incarceration are not going to become good citizens. 

If one decides to have programs, which in itself is problematic, they should be outside the purview of the criminal law and she points to programs of mentoring that have been quite successful in some countries. In any event any such action should also be taken with caution. Freedom of belief is a fundamental human right and some countries are against any action in this regard. Any interference with freedom of belief must be subject to the greatest possible scrutiny. 

Given this onslaught at the international and national level, human rights in 2022 has a new and urgent responsibility and many are beginning to recognise its renewed importance. Young people in their twenties around the world are rediscovering human rights and rescuing it from post modernism and geopolitical agendas. Whether in Thailand, Sudan, Myanmar, Iran, Chile, Sri Lanka, Hong Kong, the US, they have embraced the language of human rights. It is the only universal language of dissent and results in mobilisation that cuts across borders and has universal appeal. These movements are also refining the concept of human rights so that it addresses the many issues of class as well as the systemic structures of discrimination that earlier rights activists were less sensitive to. Often dismissed as “woke” their sensibility has already had a major impact not only on governments but also on every day life. They face an inevitable backlash but as the mid term elections in the US show the next generation seems mobilised and committed to these norms.

While human rights is struggling to survive as a worldview the second debate that is emerging around the world is the debate on the nature and function of constitutional democracy. At the national level, my generation working on public law issues was very involved in what has recently been termed the movement of Constitutionalism. The idea of the Constitution as a written text that prescribes the rule of law and limits the power of government is a product of the Enlightenment, especially the English Enlightenment. But Constitutionalism, on the other hand, is a very modern phenomenon. 

With its origins in the famous case Marbury vs. Madison, it entrusts the judiciary as the role of the guardian and gives the judges powers to nullify legislation and executive acts that violate the written text of the Constitution. It also gives the judiciary the power to interpret the Constitution to the facts before it. This sometimes results in judges going beyond the plain meaning of the law and engaging in judicial innovation to ensure that justice is done. In this way we have what advocates call “a living

Constitution”. 

Despite its American origins, this framework of Constitutionalism spread to Germany with its Basic Law, India with Ambedkar’s Constitution and South Africa after Apartheid. With decolonisation many countries have also accepted this framework. Loyalty to a written text that will protect the interests of the nation is the hallmark of this tradition. It has given rise to thousands of young lawyers committed to the Constitution, determined to write that brief, argue that case and persuade the judges to do what is right.

The main driver of constitutionalism has been the bill of rights or the fundamental rights chapter of the Constitution. Perhaps the first such case was Brown vs., Board of Education where the US Supreme Court outlawed the practice of racial segregation and introduced busing children as a way of remedying the segregation. Professor Ruth Bader Ginsberg, with whom I have worked, meticulously argued her cases on sex discrimination that would set the stage for legislation that would prevent discrimination against women.

In South Asia lawyers came together to get the powerful Indian Supreme Court to follow suit. With Justice Bhagwati they found a willing partner and Professor Upendra Bax and Dr. Neelan Tiruchelvam helped draft brief after brief in the 1970s and 1980s fighting for the economic and social rights of individuals. Using the right to life and dignity clause of the Indian Constitution many victories were won. Under trial prisoners, pavement dwellers, bonded labour, women in custodial homes all found their day in Court and managed to secure innovative judicial decision making and forward looking remedies. The Court expanded its standing provisions to allow a wide array of parties to file cases and as part of its proceedings often set up fact finding commissions to investigate cases. The remedies were also sweeping though recent reappraisals point to the fact that with time they lost their effectiveness. 

Though Sri Lankan judiciary did not open its processes in this radical manner, the Fernando Amerasinghe era also saw many forward-looking judgments. Even today in Sri Lanka lawyers file case after case in the spirit of Constitutionalism to attempt the Court to pronounce on issues relating to justice, to interpret the Constitution so it better protects the public interest. Sometimes they are very successful. Some of the judgments of Justice Prasanna Jayawardene were path breaking and his early demise has deprived the court of a strong and thoughtful judge. 

What is your idea of Sri Lanka? Some see it in religious or ethnic terms; some see it in terms of a modern nation state. For me it is a work in progress. There must be an idea that everyone can embrace – not only one community, caste or class. If we ever have genuine discussions on a future Constitution perhaps a unifying idea will emerge. At the moment it is fragmented and the debates I have mentioned are only the beginning of an honest discussion. 75 years after independence we are yet to decide on the final social contract that will govern us

Constitutional democracy

As the American Courts gave an initial impetus to this tradition of Constitutionalism, they are now signalling its eventual demise. Martin Loughlin in his new book Against Constitutionalism makes a strong argument why we must move beyond Constitutionalism to what he calls constitutional democracy. The shocking recent decisions of the US Supreme Court in throwing out clearly laid out precedents in every field and under the guise of “textualism”, playing to the worst prejudices in society has made many realise that reliance on the judiciary to make positive changes is not always the answer. 

Judges are appointed in diverse ways, they reason in complex directions and sometimes they can make major changes. Sexual Harassment was incorporated into the law not by the legislature but by the Indian judiciary in the famous Visakha case and Justices Mark Fernando and Amerasinghe opened our eyes to many things including environmental law. Recently in the Court of Appeals there is a far-reaching judgment about elephants having legal recognition as sentient beings. These developments have to be recognised as forward looking. 

But Loughlin cautions us to be weary. As the US Supreme Court does away with some of America’s most precious liberties, the new generation of young lawyers is trying to find alternatives. Relying only on judges to make changes in your society may backfire and one may not be able to control the direction of the bench. In the end according to Loughlin it is constitutional democracy and political practice, meeting, speaking and convincing people at the community level that will truly make a change that is lasting and more sustainable. 

In recent times the debate on constitutional democracy has also deepened in other ways. As we speak about democracy, we remember only decades ago, Francis Fukuyama declaring, after the fall of the Berlin wall, that the world had agreed that there is only one form of government and that is representative democracy. In recent years, there has come the belief that democracy leads to chaos and the pampering of minorities. In its place came the ideology of the strong leader and majoritarian democracy. Throughout Asia, Western Europe and the United States strong leaders exercised charismatic control over their populations. For public interest lawyers it was a truly an era of darkness.

Recently the tide appears to be slowly turning again with the active participation of what is termed generation Z. There is the realisation that not all strong leaders are in the model of Lee Kwan Yew, even if that is an authoritarian model that is acceptable. Instead many may become Pol Pots or Idi Amins emphasising the fact that the need for checks and balances in a system of government is essential for modern governance. Whatever reservations we have about Constitutionalism, its role in limiting the executive and developing independent Commissions have been key to the successes of democratic experiments. 

There is a belief among business and political elites that you cannot make hard economic decisions without a measure of authoritarianism. This has been disproven in Sri Lanka itself. Minister Mangala Samaraweera, taking the unions and other stakeholders into his confidence managed to partially privatise Sri Lanka Telecom. The belief that reform can only be imposed and not negotiated in a good faith bargaining process is the key to this misunderstanding that democracy will prevent economic development. 

Struggle to maintain democracy may only be beginning

In this struggle against authoritarian schools of thought Sri Lanka has clearly not been an exception. The Aragalaya movement showed many of us that the democratic spirit was alive and well but the hold that such democratic ideas have on the public at large will only be tested at another general election. As we watch a government taking action with the help of the security forces, unapologetic for its authoritarian ways, the struggle to maintain democracy may only be beginning. 

At the same time, while protecting representative democracy from the onslaught of authoritarian models of governance, many new thinkers around the world are being imaginative thinking new ideas about democracy itself. Such experiments focus on direct democracy and organising at a community level. They question who should represent and who is privileged. While representative democracy is fairer than authoritarian models it is still not structured to prevent inequality and discrimination. It does not truly engage the full participation of the citizenry as in the model of democracy outlined by thinkers such as Rousseau. By raising these questions there is an attempt to deepen democracy and participation. 

These issues came to ahead in Chile during and after its recent elections. The Chilean elections brought forth a government that believed in experimenting with these new forms of democracy placing emphasis on direct democracy and implementing a broad scope with regard to participation. The new Constitution was drafted using these principles and a very innovative, imaginative Constitution was presented. Nevertheless it was roundly defeated at a referendum sending Chile back to the drawing board. Unless new experiments in democracy truly understand the nature of the electorate, the conservatism of many ordinary people and the years of ideological conditioning that predates the exercise such experiments will inevitably result in failure. 

In Sri Lanka today, given the failure of representative democracy there are many discussions and experiments suggested with regard to alternatives. The Chilean experiment is a reminder that though people may want change, they may not want the kind of drastic change that alters the system of government they are comfortable with. Any experiment must be realistic and practicable and command the confidence of the average person. Lawyers will be intermediaries in these developments. They will be the drafters and the gatekeepers who can help and guide any such process. Their skills are crucial. Without Ambedkar, the visionary dalit draftsman, the Indian Constitution would have no legacy.

Any democracy has to be founded on the principle and exercise of free speech. Governments understand that and journalists are usually the first to be imprisoned when there is a crackdown. For lawyers to protect them and defend them is a constitutional duty as a means of securing democracy. The murder of eminent journalists throughout South Asia and the impunity for such a murder points to the fear of information being made available to the public. All over the world especially in South Asia, the assassination era is slowly being overtaken by an era where businesspeople close to government or political actors acquire media houses so that the marketplace of ideas is strictly controlled and the public only receives select messages. Only social media has broken this stranglehold. Based on the principle that every individual has the right to publish unedited and undeterred it helps prevent a complete shutdown of opposing views.

Yet social media has added complications to this process. While it is liberating in many ways the dark web and hate speech are its frightening dimension. I was on the International Fact Finding Mission on Myanmar. There was no doubt that Facebook had a major role to play in the violence there. Part of my work involved reading the most horrendous posts and the posts of the military generals contributed evidence to make the case for genocide. Myanmar generals were unrestrained in their feelings of disgust for the Rohingyas and many were open in the suggestion that they should be eliminated. 

Even in Sri Lanka with regard to the incidents in Digana recently, Facebook and WhatsApp played the role of bringing thugs and crowds to the location and in creating a climate of hostility. Content moderation then becomes a serious issue. It cannot be left solely to governments or big tech – the Elon Musk drama with regard to Twitter is a clear example. Some mechanism has to be devised at the global level to play that role of moderating content on social media platforms. Hopefully a fair and reasonable one that understands and respects freedom of speech will be devised in the near future.

The third area where there is a struggle and debate over ideas is the field of economic and social rights. While discussing the issues mentioned above it is important to remember the warning of Thomas Picketty, one of the world’s leading thinkers, that the most important issue of the 21st century is the problem of inequality. Inequality destroys societies from within creating fissures and social tensions that can only lead to violence and injustice. It is the cancer that truly destroys a society. 

For societies like Sri Lanka the first issue of inequality that has darkened our 75 years of independence has been ethnic relations and minority rights. In law and political science classes all over the world there are textbook solutions to these issues. For minorities one creates a constitutional and legislative framework to ensure equality at the Centre with mechanisms for implementation. For a territorial minority the textbook solution has always been power sharing agreements. Lawyers have spent hours devising, writing and redrafting such solutions. For a great part of my early career I worked with Dr. Neelan Tiruchelvam reading every constitution and every analytical text on equality and power sharing. But as Indian scholars have written murderous majorities and minorities have torn apart any textbook solutions creating an atmosphere of distrust, suspicion and hate. 

Reconciliation and rebuilding of trust will take some time

Reconciliation in this context and the rebuilding of trust will take some time. Whatever is agreed to on paper will only be sustainable if there is a buy in from the majority of the population and only if trust is created and rebuilt by media and educational systems that have so far been for the most part divisive and destructive. 

The issue of inequality is also alive within communities. As Partha Chatterjee has written our traditional elders made a compact with British colonialism. While public life was to be governed by western and multilateral models of governance such as the legislature, the executive, the judiciary, the corporation, it was decided that private life would be governed by the distinct communities through their own laws. Private life where women dominate would remain untouched and timeless – the sacred private space where tradition and rituals will be enjoyed. Many of these laws written centuries before modern personhood was defined discriminate against women in fundamental ways. 

When the community is the majority the legislature can change the law through the normal process but if it is a minority community the politics is far more complex. My approach is to listen to the voices of the women of the community. The recent legal reforms suggested to the Muslim Marriages and Divorce Act is spearheaded by leading Muslim women. It is important that their voices be heard and that we support their endeavours.

The most important issue of inequality that grips Sri Lanka and the whole world at this moment is of course income inequality. After the pandemic and our present economic crisis, economic and social rights of the population become paramount. With rising poverty and malnutrition and with the forecast that things will become worse trapping a generation into a cycle of poverty, it is important that the whole country including lawyers pay attention. Much of the writing on these themes is divided between the so-called neo liberals with their emphasis on growth and the Marxist school with a strong redistributive class analysis. 

The discourse and narrative of social democracy has been erased from the debate especially in Sri Lanka – a narrative that accepts the market as inevitable but attempts to ensure maximum social protection. It was once called the Scandinavian model. Many of the international legal instruments are built around this impetus for social protection. The Convention on the Elimination of Discrimination Against Women for example places a great deal of emphasis on women’s economic and social rights as well as their labour. 

If we are to go through the IMF process, a process that seems inevitable, it is very important that public lawyers keep their attention on the delivery of services especially food and education and the provision of resources such as cash transfers. Lawyers will be drafting these agreements and perhaps in the public interest they should raise these questions. As the economy contracts in the next few years it is vital that the public remains fed housed and educated. 

Perhaps the debate on economic and social rights is supplemented with our mounting concern about the environment and our wildlife. This debate is about how we are going to structure our world so that we share it with nature and other animals on our planet. I am a petitioner in the recent case that attempts to prevent the mistreatment of elephants by private actors, to protect them from harm and to recognise that they have some rights under the law. The Supreme Court provided interim measures in our favour last Thursday. These young, ambitious hard working activists in the environmental movement must be commended for keeping these issues alive. They are about our future in every sense of the word.

Though many people are pessimistic about Sri Lanka’s future I remain open to the possibilities. As young lawyers and as you navigate your future, step back and reflect what is your idea of Sri Lanka. Sunil Khilnani once wrote a book called the idea of India and showed how Gandhi, Nehru, especially Nehru, and Ambedkar not only freed India but moulded and created the idea of India. Now Nehru’s grandson Rahul Gandhi is marching the streets of India fighting for that idea to be kept alive in the wake of what he sees as an assault on its fundamentals. 

What is your idea of Sri Lanka? Some see it in religious or ethnic terms; some see it in terms of a modern nation state. For me it is a work in progress. There must be an idea that everyone can embrace – not only one community, caste or class. If we ever have genuine discussions on a future Constitution perhaps a unifying idea will emerge. At the moment it is fragmented and the debates I have mentioned are only the beginning of an honest discussion. 75 years after independence we are yet to decide on the final social contract that will govern us. 

Finally, one image I carry in my mind’s eye throughout these difficult times is the picture of the young lawyers during Aragalaya linking their hands separating the protesters from the security forces. I also remember the image of young lawyers flooding the courts in their hundreds to protect the rights of those taken in after peaceful protests. In my conversation with young people I saw a lot of potential. They did not appear to carry the baggage and the scars of the previous generations. There was freshness and a wholesomeness that should be preserved. 

Though there was terrible violence toward the end that should be condemned, Aragalaya also brought out the best in young people and that should not be forgotten. I have no illusions. All over the world movements led by young people are being crushed. But time is on your side. You will outlive the older generation with their oppressive world-views and hopefully you will make society anew. We may not be alive to see it but we hope seeds planted by the generations before you will strengthen your resolve.