"May I please remind you that the Supreme Court of Pakistan had validated most of these amendments? Would you still hold Supreme Court as the 'ultimate arbiter' instead of the constitution that embodies law of the land and not the changed ones which carry the whims of the dictators of the times?"
by Avinash Pandey Samar
(September 17, New Delhi, Sri Lanka Guardian) "Who is the ultimate arbiter whom the citizens of Sri Lanka should follow" is the biggest question troubling Dr Dayan Jayathillake, a Sri Lankan writer. What is troubling me, though, is the fact that this is hardly a question that should trouble a political scientist. After all, even a standard 10th student of Political science, known as Civics in several countries, knows the answer to this question.
No one can be 'ultimate' arbiter Dr Dayan, may I please remind you. Do you really remember the theories of social contract offered by Thomas Hobbes, John Locke and Jean-Jacques Rousseau?
Everyone surrendering his/her own sovereignty to the universal sovereign in the form of a political community is what all of them believe. The emphasis, you will not fail to notice, is on 'political community' sir, and not on 'ultimate arbiter' as you tried to argue! May I, please, also remind you of the fact that the sovereignty thus derived is not some 'natural' right of the sovereign?
The sovereignty and the surrender of rights in the form of general will, loses its legitimacy if it fails to meet general interest, was a corollary almost all of them had derived. The right to rebellion, particularly in case if the contract is leading to 'tyranny' is a phrase coined by Locke, the father of liberal democracy you are supposed to be espousing, and not by some insane critic sir!
Tyranny is the word he used sir, if you noticed.
Can you please enlighten me where does this idea of 'ultimate arbiter' seeps into your scheme of things? From which school of political science, at least, as that would explain a lot many things to me.
The idea of ultimate arbiter is located in the idea that the state has the right to exercise the sovereign power and to act as parens patriae (parent of the citizens). I remember a decision of the Indian Supreme Court, among those of others denying this right to Indian state. In a case regarding the rights of erstwhile small princes, the full bench of the Indian Supreme Court has concluded that there exists nothing as sovereign power of the state. It asserted that the legal sovereignty vests in the constitution whereas political sovereignty lied with the people, not with the office of the institution representing it. It is 'we the people' who unite ourselves into a sovereign state, sir, not the other way round.
May I please remind you of one very similar thing from the Indian experience sir? The National Democratic Alliance led by Mr Atal Bihari Bajpai had made an attempt to ‘review’ (read rewrite) the Indian constitution. The judiciary of India did not only stall the move but also reasserted that the basic structure of the constitution cannot be negotiated, altered or changed.
Providing democratic governance is one of those basic structures sir, in Sri Lanka as well I think, correct me if I am not. And any law or amendment that compromises with that does not confirm with the law of the land and is not acceptable sir.
Framing a question wrongly would never bring a right answer is a clichéd fact for those in academia. But then there is another question that why do people do it.
Political Science defines itself as a 'science' sir, do you remember? Being busy with all your pursuits, academic and otherwise, I am sure it must have been long since you last read that. The reason behind that was simple. It was to ensure that the issues are studied as much 'objectively' as they can. It did not demand complete objectivity, as social conditions are not like natural phenomenon which could be absolutely objectively studied, what it required was keeping the intellectual’s own biases out of the study.
Precisely for this reason, it is not about seeing a glass as half empty or half full. The objectivity you have, unfortunately, is demonstrated by the comparisons you bring in. Even while claiming to see things 'from the perspective of comparative international politics' the only comparison you bring in is that of Turkey! There have been attempts to change constitutions closer home sir, both successful and failed ones. The constitution of Pakistan was amended several times by these 'Precedential Decrees' (who in turn had usurped power as army generals).
May I please remind you that the Supreme Court of Pakistan had validated most of these amendments? Would you still hold Supreme Court as the 'ultimate arbiter' instead of the constitution that embodies law of the land and not the changed ones which carry the whims of the dictators of the times? And then I had already discussed India, and its Supreme Court’s valiant rejection of any such plans. Do you notice, sir, which paths these two countries, with respect to democracy and civil liberties, have embarked upon?
All you remembered from comparative international politics perspective was Turkey sir. There is Norway sir, among other countries. I have chosen this name for the involvement it have had in the Sri Lankan peace process.
All, I would say at the end sir, In the face of a crisis, the best bet a nation has is its intellectuals, honest ones I mean. Honesty, in turn, can never be superfluous; it is always located in the robust critical enquiries the intellectual engage in without fear or favour. With due respect to an academic of your stature, Dr. Dayan, unfortunately, you do not seem to be engaging in this honestly.
Avinash Pandey Samar is a Research Scholar at the Jawaharlal Nehru University, New Delhi. He can be contacted at samaranarya@gmail.com.
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