Rohan Samarajiva On Constitutionalism Vs. Feudalism
Photo from Mahinda’s Flickr
My father published an article on Constitutionalism vs. Feudalism which has the background on a lot of ideas I’ve tried to express. Basically, why I (we, I guess) support rule of law rather than men, and how the country is veering away from that. He cites a lot of the historical background, from the kingdoms up to the various iterations and reiterations of the Constitution, and how messed up things have got. Under Mahinda Rajapaksa I think we are transitioning to a feudal state. While that has certain benefits, I think they are far outweighed by the costs.
To quote:
What is surprising is not that the President violates the law and disregards explicit directions from lawful authority, but that the citizenry seem to accept it. Not that the President tries to impress university teachers by inviting them to dinner at Temple Trees, but that most of them go, and some even kiss the hands of their host.
After much reflection, I have had to conclude that we are witnessing a head-on collision between Constitutionalism and Feudalism. Constitutionalism is respect for words on paper that say what power holders can and cannot do; it is basically about the widespread respect for law:
Constitutionalism as a theory and in practice stands for the principle that there are — in a properly governed state — limitations upon those who exercise the powers of government, and that these limitations are spelled out in a body of higher law which is enforceable in a variety of ways, political and judicial.
This sounds basic, but the idea that the government follows as well as enforces law has been largely lost. Ongoing Emergency Law supersedes the Constitution, and the Executive is in daily violation by not implementing the 17th and 13th amendments. You can disagree with those, but having a situation where they’re both on the books and ignored gives you a situation where nothing holds. Law enforcement is literally arbitrary, meted out by law breakers, and punishment is largely defined by proximity to power. It is really more of a feudal system based on connections than a constitutional one based on laws.
Some say that this is actually faster for development, which it may be. However,
As a colleague who read the first draft stated:
“A society embracing feudalism in whatever guise can no longer expect, at the same time, certain other cherished ideals including, but not limited to:
- meritocracy: the best performing persons assured to get best public/academic appointments
- fairness: everyone treated as equals, irrespective of wealth or family connections
- due process: transparent, consultative policy making and policy implementation in the public interest
- equality before the law, affording protection to everyone irrespective of social status or political affiliation
Feudalism, on the other hand, is inherently and fundamentally incompatible with all the above and other values. In fact, there can be no public interest whatsoever in a feudal society; only vested interests. Mervin Silvas, Sakvithis, Potta Naufers and their ilk will be the norm, not exception.
There won’t be a chance in hell for any bright, hard working, honest young man or woman with no family or political connections to rise in society professionally, intellectually, artistically or entrepreneurially — unless they sell their soul to the ruling oligarchy/family.”
Seeing as most Sri Lankans are not actually connected I think a system of equal opportunity might be better for all of us. Furthermore, I think systems based on merit, fairness and equality also lead to better growth. I don’t think there’s no growth under a feudal system, it can be quite fast. I just think a constitutional system is better quality growth, and more sustainable.
Mahinda is all about this feudal model, which is why I don’t support him. Sarath Fonseka is coming from no party or clique and proposing a return to Constitionalism, which is why I support him*. This is my personal preference and however you vote need not be connected to the ideas above. I recommend reading the whole article, there’s a depth to it that I skim. It makes no particular endorsement, that’s me.
*please note that I am contractually obliged to support SF in every post because I’m brainwashed by the UNP. Also note that I’m compelled to link to my father’s articles or I will not get dinner. I could not possibly be using this blog to say what I think and feel.
Today on the 
Janith has updated 
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Sri Lankan domestics never say anything, they just stop coming. My maid just stopped coming and when I finally pressed her she said I needed to get a washing machine. I was hoping to ride this one out, but I’ve run out of underwear and I have no choice. I finally caved and bought a washing machine, from 
Basically, why I(indi) support/voting Sarath Fonseka simply because my “My father” keep voting UNP for last 50 years, and I’m also inherently a UNP supporter.
So you have decided to vote Sarath read this to the end, and then Vote!: http://landlikenoother.blogspot.com/2010/01/so-you-have-decided-to-vote-sarath.html
That’s a joke. I don’t assume that SLFP voters are stupid and vote only for party, I don’t see why anyone would assume that of the UNP. Sarath isn’t even running as UNP. My father hasn’t been voting for 50 years, he’s worked for SLFP and UNP governments, and I don’t see what that has to do with me anyways.
You guys say UNP like it’s a bad word and it’s not. We’re all capable of rationality and I think people on all sides are voting as their own decision. I respect the intelligence of MR voters and I’d appreciate the same.
I appreciate the article being brought to the attention of a new audience. Transcurrents had run it, changing the title without asking me at least, and that has been generating a lot of interesting discussion as well.
The tendency to attack the messenger and not the message is unfortunate (interestingly not much of that on Transcurrents, perhaps because of moderation). The message is what is important, and as Indrajit says, I do not endorse one or the other candidate in it. The feudal-mindset problem is larger than who gets elected on the 26th. It is something we will have to work on for years to come.
For the record, I come from a family with leftist leanings, but I also got from my father critical facilities that have kept me from being a prisoner of any ideology. I was invited to return to Sri Lanka to work as Director General of Telecom by the 1994-2000 PA government; and I was then invited to return again, as an international expert to manage economic reforms by the 2001-04 UNF government. Both invitations came from the political authorities and both appointments were cabinet approved.
My positions on various economics-related matters are easy to find out, since I have written around 60-70 columns in LBO.LK since 2005 and also in Ravaya and Montage.
I am appalled by the gross abuse of state resources and the blatant violations of law by the present government. But I am surely not the only one. You only have to listen to the Elections Commissioner to see I am not alone. An article critical of former Chief Justice Silva who is speaking from SF platforms will be published this weekend. So it is not that I am not critical of the other side as well.
But as some one from Transparency International told me, the MR campaign has spent LKR 2000 million on the campaign compared to 70 million by the SF campaign. The scale of wrongdoing is probably in the same ratio.
And BTW, I have not been voting from the time I was 6. I have voted very rarely, having been outside the country during most elections, including the previous Presidential election.
You chose the wrong side in 2005. I can still remember your post about people leaving country fearin the worst. Even though you have maturated politicaly since then, you are still on the same wrong side.
It’s not wrong to be in opposition. It’s just different. Mahinda was opposition leader once as well. That sort of legitimate dissent is part of democracy.
Yeah right!
But do you have to be so academic to say that the SF is the better choice?
In spite of
-all his comments on minorities, “minority” parties support him,
-his track record about women, so called politically correct liberals support him,
-differences on ethnic issue, ultra nationalist, separatists, federalists support him,
-their economic policies, equally Marxists and Capitalists support him.
WHY?
If SF wins, they all know that some “opportunities” might open up for everyone.
But as a Nation we will have a bleak future.
Being a UNP supporter all my life. I’m voting in MR, for the first time. I just fail to see past this blunder of an opposition candidate. I’m flying back home in a couple of hours, hope for the best. Not like we didn’t already have a “feudal” system.
As I stated,the problem is much larger than who is declared the winner on the 27th. My response is to the claim that Sri Lanka has already had a feudal system.
I disagree. Of course, feudal characteristics coexisted with Constitutionalism (my main thesis is that the people of Sri Lanka have always had a feudal mindset, so this is a corollary), but there has been a qualitative change since CBK and Sarath Silva destroyed the integrity of the 1978 Constitution in the early part of this decade and MR took the game to a qualitatively higher level.
Some evidence (examples only, not comprehensive) of feudal thinking at the top:
1. Consistent and flagrant violation of the Constitution by the Head of State. In the old days, when they did not like the Constitution they changed it (Sirimavo B in 1972; JRJ on multiple occasions after 1978). Now they just violate at will. Both CBK and MR guilty on this.
2. Refusal to comply with direct orders from the Elections Commissioner and the Courts. State media are used as campaign propaganda despite direct lawful orders and even the appointment of a competent authority. Dansalas continue to be held at Temple Trees in violation of EC directions.
3. Outrageous abuse of state resources. Government buses have been released for months on end of campaign work. Govt owned enterprises have given massive amounts of money to Tharunyayata Hetak.
4. And last but not least, Mihin Air. Where but in a feudal state, would you name the a government airline for the current head of state and put his campaign livery on the tail?
If one looks at the world from within a feudal framework, these things do not look wrong. In that framework there is no distinction between what belongs to the king and what belongs to the state: the king is the state and the state is the king.
In that framework, there can be nothing above the king, not the Elections Commissioner, not the Constitution. Mahinda is Sri Lanka and Sri Lanka is Mahinda. Those who oppose Mahinda are traitors (TNA); those who support Mahinda are patriots (Karuna). These kinds of claims make no sense unless one is seeing the world through a feudal frame.
The question is whether these kinds of behavior are acceptable in a modern society? Should one endorse them, or should one resist them?
Are you saying that both Sirimavo and JRJ never violated the constitution?
No. Nothing on this scale. SB’s skate was possibly that extension of the term of Parliament by 2 years, but that was dressed up in Constitutional clothing.
Let’s flip the question. If they were violating the constitution, why did they get a new constitution (SB) and amend it repeatedly (JRJ)?
Ok so you agree that Sirimavo and JRJ violated constitution. Your issue is the ‘scale’ of violations. Well I would say that changing the constitution to get one wants is even a bigger issue than actually violating it. Because when you violate the constitution everyone can call you out on it, but when you go and change it to suit your whim and fancy, well, that is pretty dangerous. Changing the constitution is, in my opinion, a pretty major thing to do. JRJ was the one responsible for the current executive presidency, the one that the opposition wants to abolish (but never did when it was in power). So I would say JRJ takes the cake when it comes to the ‘scale’, given that you support SF I don’t expect you to see that the UNP is actually the cause for a lot of present day problems.
Sorry, I did not agree with you.
There is a difference between amending a constitution according to the provisions for amendment (which is what JRJ did) and what CBK and MR did by refusing to adhere to a document they have taken an oath to follow.
One can object to JRJ’s amendments (I do; I think his amendments harmed the integrity of the 1978 Constitutional design), but they were still within the larger frame of Constitutionalism. SB’s argument was that she had a mandate for a Constitution from the 1970 election; and the new Constitution gave Parliament (it had some other name at that time) a five year term starting in 1972, not 1970. Weak argument that was engaged with very effectively by JRJ who resigned his seat in 1975 and forced a by-election. But still within the frame of Constitutionalism.
What we have had since 2000 (late CBK and MR) are actions outside the frame of Constitutionalism and the rule of law. The courts are supposed to stop these kinds of things. But CBK’s appointment of Sarath Silva broke the courts. Professionals, media, etc are supposed to resist. In India, when this process started, they did. In Sri Lanka, they did not.
So now MR ignores anything he does not like. His agreement with the JVP; the 17th amendment; the directives from the Election Commissioner. He has buses free of charge from the govt bus company and airtime free of charge from govt media. No rules or customs (perasiritha) constrain him. He is behaving like a Kandyan king. But my friends who know more about Kandyan kings say that even they were bound by some rules and that King Narendrasinghe paid a fine of 13 pieces of silver for violating the pera siritha. No such constraints here.
I do explain this in great detail in the article itself.
I’m sorry, but I think JRJ’s state sponsored pogrom against the Tamils in 1983 (single event that set the stage for the past 20 years of violence and terror), and the mass murder of over 50 000 Sinhala youth were pretty unconstitutional things to do. All this was made worse by creating an executive president and getting rid of any checks and balances. He also screwed up our relationship with India to our detriment. So on a scale of screwing up the country, I think JRJ tops it. Mahinda’s done far, far better IMO. He actually brought the war to an end and has brought economic growth as well.
“He has buses free of charge from the govt bus company and airtime free of charge from govt media. ”
Isn’t this what JRJ, Premadasa and Ranil did when they were running the roost?Infact, Ranil was pretty damn authoritarian when it came to the media and the Daily News was as pro UNF as it is pro SLFP today. And Premadasa? Well we all know about his beeshanaya. Chandrika was actually a breath of fresh air, despite all her massive flaws. And guess who Sarath Silva is backing these days?
Mr Samarajiva, with all due respect, do you honestly think, our people would let a modern day “King” to stay in power? I think you’re not giving enough credit to the masses, your assumptions are a bit off base.
Yes, they are corrupt, and feudal type policies are abundant. But that’s always been there, like you have pointed out, CBK et al. You are also correct in identifying a need to stay away from that sort of thing and to fix it. But this is not the time, and SF is not the right person to do it either.
So as usual, the Sri Lankan’s are left to chose between the lesser of two evils, and personally, I will be choosing the known devil rather than some unknown “angel”.
However, kudos to people like you for keeping the opposition alive, and giving life to our wonky democracy.
It seems that this election is a kind of field experiment.
My hypothesis is that a majority the people are feudal in their thinking. If the feudal candidate wins even after this gross abuse of power and violation of law, I guess my point is proved.
JR isn’t on the ballot Mr.V