Legal implications of Aragalaya protests

By Dharshan Weerasekera

The ‘Aragalaya protests,’ by which I mean the protests that started in mid-March and culminated in the storming of the President’s House, and the Presidential Secretariat on 09 July, leading to the subsequent resignation of the President, have been praised by many commentators as a triumph of democracy, and a resounding affirmation of the rights of the people. However, there is another perspective that one must consider at least for the sake of argument, namely, that the events in question demonstrate the supplanting of the rule of law, in our country by the rule of the mob.

There is very little discussion of this second perspective in local academic journals and newspapers, and it is in the public interest to start one. I argue that the protests are illegal because they contravene the letter and spirit of the Constitution, embodied in Articles 3 and 4 thereof, which I will explain more fully. I argue further that some fans of the protests are using a version of the ‘social contract theory,’ associated chiefly with the seminal thinkers Thomas Hobbes, John Locke and Rousseau, to defend them.

It is vital that both the above matters be brought to the attention of the public because there is a danger that if they go unchallenged, they might creep into formal academic discourse and perhaps even into judicial rulings in the future, with devastating consequences. In this article, I shall briefly explain: a) why the ‘Aragalaya’ protests are illegal and, b) why the application of social contract theory to the protests is fallacious.

The constitutional argument

Arguably, the most important clauses in the Sri Lankan Constitution are Articles 3 and 4. Article 3 states: “In the Republic of Sri Lanka sovereignty is in the People and inalienable.” So, it identifies the ultimate basis of the Constitution’s authority and by extension its validity. Meanwhile, Article 4 enumerates the specific ways in which the people are to exercise their sovereignty, for instance, legislative power through a Parliament comprising of elected representatives, executive power through a President elected by the people, the franchise directly by the people and so on.

The necessary implication of an enumeration such as the above is that if the people wish to exercise their sovereignty, including changing the government, they must do so through the specific means spelled out in Article 4. The Constitution does not recognize any other ways through which the people may exercise their sovereignty, for instance, through popular uprisings and other such means. Nor does it reserve to the people the right to invent such means. To suppose otherwise would be to hold that the Constitution, the ‘Supreme Law of the Land,’ is supreme only when it is convenient for people to consider it so.

The above argument is strengthened when one considers what might be the possible obligations of the citizens towards the state. It is well-known that “rights always go hand in hand with responsibilities.” Sri Lanka is by and large a welfare state and almost the entire gamut of essential services is heavily if not entirely subsidized by the state. We have free healthcare, free education, farm subsidies and so on. The state is also the largest employer. Without a doubt, the persons who participated in the protests, if they were citizens of Sri Lanka, would have benefited to some degree or other from these services in the course of their lives.

In these circumstances, the question is whether at a time as the state was in financial difficulties at least partly as a result of factors beyond its control such as the costs of facing a pandemic and also the Easter Sunday terrorist attacks that crippled tourism, one of the pillars of the economy, it would have been more reasonable for the protesters to exercise some patience, instead of taking to the streets immediately, and calling for the ouster of the government?

To digress a moment, there is an extraordinary passage in Plato’s ‘Crito’ that speaks to the above question and it is worthwhile quoting it at length. The background to the passage is as follows: The Athenian Assembly had sentenced Socrates to death for allegedly “corrupting the youth” with his philosophizing. He was in jail awaiting execution. A group of his friends, led by Crito, arrange an escape for him and Crito visits the prison to tell him about the plan.

But Socrates refuses the offer. The essence of his argument is that as an Athenian citizen he had benefitted from the state throughout his life. Now, when the state had punished him, it would be wrong for him to turn his back on the state, even though the punishment might be unjust. He says,

“Imagine that I am about to play truant, and the laws and the government come and interrogate me: “Tell us, Socrates:, they say, “what are you about?” Are you not going by an act of yours to overturn us—the laws, and the whole state, as far as in you lies? Do you imagine that a state can subsist and not be overthrown, in which the decisions of law have no power, but are set aside and trampled upon by individuals?” He goes on…

“Then, the laws will say, “Consider, Socrates, if we are speaking truly that in your present attempt you are going to do us an injury. For, having brought you into the world, and nurtured and educated you, and given you and every other citizen a share in every good we had to give, we further proclaim to any Athenian by the liberty which we allow him, that if he does not like us when he has become of age and has seen the ways of the city, and made our acquaintance, he may go where he pleases and take his goods with him. None of us laws will forbid him or interfere with him. Anyone who does not like us and the city, and who wants to emigrate to a colony or to any other city, may go where he likes, retaining his property.” (‘Crito’, Complete Dialogues of Plato, (trans. Benjamin Jowett) London, 1952, p. 217)

At the time of the protests, all of the means provided by the Constitution for changing the government were available to the citizens of this country. Now, a critic might say that it would have taken too long to exercise those means, for instance, if people were to wait for two years, until the next elections, the country would have been ruined. But then, the means to change the times for elections were also available. To my knowledge, the government had made no attempt to suspend the Constitution or any part thereof.

Also, Socrates’ point, although made in a different context, is highly relevant here. If any citizen was dissatisfied with the prevailing situation, they had the option of leaving. In these circumstances, was it lawful for the protesters to storm the President’s House and Secretariat and forcibly evict the President, from those premises, and, shortly afterwards, the country, leading to his subsequent resignation? In my opinion, the conclusion is inescapable that the said act is illegal.

Social Contract Theory as a defence for the protests

A perusal of commentary on the protests shows that many writers rely on a version of the “social contract theory” to defend them. In my view, their stance is untenable because of the following reasons. “Social contract theory,” is chiefly associated with Thomas Hobbes (1588-1679), John Locke (1632-1704) and Jean Jacques Rousseau (1712-1778). As far as I am aware, the idea behind the theory is that at the very inception of a state, the people enter into a contract with their rulers whereby the former surrender a portion of their sovereignty to the rulers in exchange for the rulers ensuring the security and welfare of the people.

If the rulers fail to fulfill their end of the deal, the people would be justified in ousting them. Locke famously says in “An Essay Concerning Civil Government”: “Whenever law ends, tyranny begins. If the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command to compass that upon the subject which the law allows not, ceases in that to be a magistrate, and acting without authority may be opposed, as any other man who by force invades the rights of another.” (‘An Essay Concerning Civil Government’, p. 71)

As mentioned earlier, some commentators try to defend the protests by resort to a version of the above argument. According to them, the former President exceeded his authority or in some other way reneged on his obligations to the people and hence the people had a right to oust him. However, leaving aside the question whether such a dereliction of duty in fact happened, Locke’s argument can be distinguished from the Sri Lankan situation very clearly.

Locke, Hobbes and Rousseau were responding to the fundamental transformations that were taking in the political systems of their respective countries. In the case of Hobbes and Locke, it was to the transition from a monarchy to a constitutional monarchy that was taking place in England over the course of the 17th century and in the case of Rousseau it was to the transition from a monarchy to a Republic symbolized by the French Revolution.

Each thinker, in his own way, was trying to find a way to legitimize the emerging political order. In order to do this, they introduced the notion that the ultimate authority in the state comes from the people, as opposed to the monarch who at the time was understood as deriving his authority from God. In sum, social contract theory applies to situations where new political systems are being formed, not to convulsions in such systems once theyare formed. For instance, if people can topple the government at will, what is the point of having elections?

Democracy is understood as rule by the consent of the people. If one accepts that the way in which this consent is expressed is though elections, then changing governments, other than through constitutionally prescribed methods, createsthe potential for perpetual instability in the state and thereby negates the very purpose for which the social contract is purportedly formed, namely, ensuring the security and well-being of the people.

Conclusion

Sri Lankans must decide whether they want to live in a country where the rule of law prevails or, ultimately, the rule of the mob. If the former, they need to reflect deeply about what happened in the course of the protests and devise constitutional means to prevent such things from repeating.

(The writer is an Attorney-at-Law)