Uvindu Kurukulasuriya’s inaugural piece in Groundviews is an aptly Niemölleresque exhortation to greater civic responsibility in the defence of political freedom, civil liberties and the Rule of Law. It comes at a time when Sri Lanka is once again returning to a ‘Bheeshana Yugaya’, the previous experiences of which should have toughened the resolve of Sri Lankans to never allow a repeat. It appears, however, that rather than resistance, that experience has inured Sri Lankans to serial abuse much like a tragic case of battered wife syndrome.
I would like to offer some further parallels in addition to the historical ones that Uvindu mentions in his article. In September 1930, Hitler was called to testify at a trial of three army officers accused of high treason for infiltrating the army with Nazi propaganda. He stated: “The national-socialist movement will try to attain its aims in this State by constitutional means. The constitution only prescribes the methods but not the goal. We will try to obtain the necessary majorities in the legislative bodies by constitutional means in order to mould the State, once we have succeeded, into the form which conforms to our ideas.†Thus it was not through revolution or a coup d’etat but rather through the democracy offered by the liberal constitution of the inter-war Weimar Republic that the Nazis seized power. It is also interesting to note that the system of proportional representation in the Weimar constitution meant that the Nazis were unable to gain an outright electoral majority, but focussed on regime consolidation once they had a foothold in the Reichstag, including through the passage of the Ermaechtigungsgesetz, which alienated parliamentary power to the executive.
Thus democracy itself validated a political movement that negated democracy through its mandate. This paradox at the heart of the democratic ideal is addressed by liberals by recourse to arguments about natural law and rights inhering in the human being that cannot be annulled by any political authority however legally or legitimately constituted. Thus constitutionalism, the Rule of Law and fundamental rights are advanced as the inviolable bulwark against the temporary tyranny of democratic majorities as well as ideologies of political power that seek to subordinate the individual to the collective and freedom to authority.
Carl Schmitt, the most famous intellectual apologist of the Nazis, however, thought differently. In his attack on liberal democracy and constitutionalism, he argued that the liberal view of politics based on liberty, individual autonomy and freedom of choice was irrelevant to understanding the real nature of politics. To him, politics is a permanent state of crisis in which the basic reducible relationship is that between friend and foe. That is, the central political calculation is deciding whether one is with us, or against us. Thus the state of emergency which this permanent crisis entails is the exception to the liberal democratic norm of constitutional government. In this permanent ‘exception’ there are no norms, no rules, no law. There is only the political calculation of survival against the ‘enemy’, which in the Nazi worldview extended from political detractors such as Leftists and liberals to eugenic inferiors such as Jews and the Roma. In Schmitt’s theory, the decision whether the state of exception existed was the sole prerogative of the sovereign dictator, and having proclaimed such state of exception, the sovereign dictator is only bound to make the correct decisions that ensure the survival of the State. Neither he nor his decrees are bound by liberal constraints such as constitutionality or political morality; his legitimacy comes from the fact that he exercises power in defence of the State against the enemy.
This particular legal theory may sound frightening in the abstract, and revolting in lending intellectual respectability, such as it were, to Nazism in the light of subsequent events in Europe. Even more scary, however, is how close to the knuckle Schmitt strikes in considering Sri Lanka’s own experience of hyper-nationalism as well as emergency rule.
In Sri Lanka, emergency rule has been the norm, not the exception, since the 1970s. The suspension of ordinary law, attenuation of fundamental rights and incursions into liberty and safeguards have been effectuated by constitutional means no doubt, but once that is done, the State apparatus has continuously operated in a legal limbo that has been a gory carnival of killing, abduction and torture. Political space for the expression of views and ideas is sanctioned only to the extent that it accords with the politics of the State: i.e., one is either with it or against it, and to hold otherwise is to court physical danger. In short, everything – law, politics, society – is subordinated to the State, which in the normless and lawless state of emergency, means the interests and the viewpoints of those who control the State.
Given our habitual tolerance of intolerant politics, it may well be that populist authoritarianism is the authentic condition, the genuine article, in the politics of Sri Lanka, in which the ruled do not measure their rulers against standards of democratic freedom such as other societies use. If that is indeed the case, will the last democrat leaving Sri Lanka, please turn off the lights?