Scary, erratic, and a warmonger. -A Good description of Sri Lanka's President, practicing State Terrorism:

Scary, erratic, and a warmonger. -A Good description of Sri Lanka's President, practicing State Terrorism:


Hobbes is dead, and I feel fine

By Randall Amster

It has been said that the election of Barack Obama as the next president may serve to redress the four-century-old stain of racism in America. While the symbolic poignancy of his ascent no doubt will dispel some demons and open new vistas of opportunity for many, there is another deep-seated ideology of nearly the same historical age that Obama’s election may confront, one that perhaps even underlies the overt machinations of race and caste: to wit, fear itself.
In his foundational tome Leviathan, Thomas Hobbes famously asserted that the natural disposition of humankind was aggression, brutality, and a “war of all against all.” He argued that the creation of a modern state was necessary in order to bind us under a social contract, to impose by coercion the rule of law, and in essence to protect us from ourselves. Hobbes was primarily motivated by fear in his moral and political philosophising: fear of the other, fear of nature, fear of death, fear of losing his property and privilege, even fear of his creator.

Social control

While the modern nation-state employs many methods to maintain the patterns of social control that Hobbes envisioned — including the hardware of weaponry, imprisonment, and surveillance - it is at root the ideological software of Leviathan that is the glue holding the system together.

Unsurprisingly, modern-day Hobbesians seek to create and accentuate fear among the masses as a means of preserving their positions of power. The outgoing Bush Administration in particular built its entire platform on this, tapping into the well of 9/11 over and over again as a justification for everything from pre-emptive war to offshore drilling to high-tech voyeurism.

Fear-based rhetoric

This last election cycle was notable for the contrasts it presented. On the one hand, John McCain sought to tap into the same fear-based rhetoric that served the current administration so well, running almost exclusively against an opponent characterised variously as a terrorist, a socialist, anti-American, and someone who would take away your guns and religion.

While race was a veiled part of this fear-mongering strategy, it surprisingly did not take centre stage in this campaign (much to the chagrin of Atwater-influenced politicos, no doubt). Indeed, this may well have been an acknowledgment that at the end of the day, the Hobbesian fears are the bedrock upon which constructs of race, class, gender, and all of the sundry ‘isms’ are built.

Contrast

For its part, the Obama campaign sought to contrast itself to the politics of fear by maintaining a sense of optimism and hopefulness in most of its politicking. Of course there was some negative advertising (is this a redundancy?) here as well, but by and large the central message was one of change and possibility.

Despite the tried-and-true method of scaring the crap out of people as a means of getting them to fall in line and support the iron fist instead of the open hand, and despite throwing every inflammatory label at him, Obama seemed to refuse to take the bait and instead kept to his message of contrast and change.

This isn’t meant as a glorification of Obama and the Democrats or a condemnation of McCain and the Republicans. Many liberals have relied on the fear card in challenging the Bush Administration’s policies and practices, and McCain was sometimes described by left-leaning pundits as scary, erratic, and a warmonger. But there was a virulence lacking in these moments that seems to come easier to the other side.

For instance, I attended the election eve “victory rally” held by John McCain in Prescott, Arizona. A number of us turned out to demonstrate with messages about spreading the wealth, health, and opportunity around not only the U.S. but the world. For this, we were excoriated by many McCain supporters in quite vicious terms. And at the end of the day, CNN showed images of a woman with an Obama sign that had “666” scrawled across it while failing to mention any of the positive messages that we tried to display.

Advertising Industry

This is America, after all, and fear sells. The whole advertising industry is built on the notion that without this (insert product name here) you will be unpopular, uncool, unkempt, unloved, unwelcome, unattractive, persona non grata. ‘Keeping up with the Joneses’ is an expression of fear that we will stand out in a manner that makes us shameful, lesser, and pitiful.

Conspicuous consumption becomes a way of ostentatiously flaunting our worthiness while simultaneously flouting our fear of impoverishment. Not surprisingly, once we’ve invested in a conception of identity based on the power of possession and the fear-flouting virtues of being flush, it becomes incumbent to take any measures necessary (and even some that are not) to protect our domains of privilege and power. In the end, consumer capitalism turns us into fear-driven actors, and in this we are enacting a new mantra that essentially boils down to ‘keeping up with the Hobbeses.’

Fifty years ago, Kenneth Boulding wrote that “the national image is basically a lie . . . which perhaps accounts for the ease with which it can be perverted to justify monstrous cruelties.” We know that behind those new sneakers and computers there are workers toiling in misery and deprivation. We sense that within every styrofoam package or genetically-modified meal lurks a potential impact on the biosphere.

We recognise that our automobiles run on the blood of Iraqis, Nigerians, and others around the world with the misfortune of living in places with resources that we desire. We see the self-perpetuating nature of poverty and despair even as we blithely punish the individual transgressor rather than address the root causes. We know we’re living a lie in many of these contexts, but because our self-image depends on the lie it is so easily ignored.

Spirit of self interest

Hobbes knew this as well. His civilisation-founding political theory was based on the most specious of evidence, namely that people living in Hobbes’s time would lock their doors at night or travel armed as an expression of the obvious distrust they felt for the brutish other.

But the people of Hobbes’s era already lived in a nation-state that had laws and a social contract, so all that he really confirmed was that “civilized” people acted aggressively and in the spirit of self-interest. To this he attempted to contrast the purportedly aggressive tendencies of indigenous Americans, but neglected to mention any of the brutal behaviors of those who had ostensibly come to “civilise the savages.” And obviously, civilisation has not staved off the ravages of war.

What Hobbes thus created — the big lie upon which our national image is based — is essentially a self-fulfilling prophecy. In the name of overcoming our fear of the worst traits in humankind, we have institutionalised those tendencies and cleaned them up to seem somehow more palatable. Out of mistrust of ourselves and each other, we have created social structures and institutions that render us even more untrustworthy by making self-interest a virtue.

In the name of maintaining our privilege and power, we have turned the reins of control over to others and made ourselves almost wholly dependent upon their judgment and policymaking. From our terror and grief we have inflicted the same on multitudes of others. In his book Nonviolence, Mark Kurlansky writes that “people motivated by fear do not act well,” and in this may we find a reflection of ourselves.

End of racism

At the end of the day, an Obama presidency likely won’t surmount all of this historical baggage. Yet for a brief moment in time, perhaps we can idealistically linger over the defeat of fear by hope, just as we allow ourselves to glimpse the end of racism in our midst. Of course, neither fear nor racism will magically perish from the earth simply due to a tally of the electoral college. But if it can happen for even a moment, perhaps that is the impetus we need to transcend the Hobbesian legacy and begin the task of writing a new shared narrative of hopefulness. If fear can become self-fulfilling, then over time so too can become the virtues of optimism and peace.

Randall Amster, J.D., Ph.D., teaches Peace Studies at Prescott College in Northern Arizona. His most recent book is Lost In Space: The Criminalisation, Globalisation, And Urban Ecology of Homelessness (LFB Scholarly 2008).



arm of the law

Excerpts of the 60th Anniversary Oration of the Faculty of Law, University of Colombo which was delivered by Dr. R.K.W. Goonesekere on the theme, Arm Of The Law.

I will say something of the new role given to judges by the 1978 Constitution. Having enumerated fundamental rights and made them enforceable, the constitution also gave the Supreme Court jurisdiction for the protection of fundamental rights (Article 118) and by Article 126 recognised the Supreme Court as having sole and exclusive jurisdiction to hear and determine any petition relating to the infringement of any fundamental right by state action.

The constitution required a petition to be presented within one month of an infringement, a condition insisted upon by the court unless the petitioner is able to show good reasons why it should be relaxed. The rules required that the petition should set out the facts and circumstances relating to the right, by whom and how it was infringed and the relief prayed for.

When the petitioner succeeds the court has the power “to grant such relief or make such directions as it may deem just and equitable.” Judges have not considered this power as giving them an absolute or unfettered discretion. Usually it is an order for costs and compensation to the petitioner by the state and/or the respondents and such other orders as are necessary to give relief or redress to the petitioner.

It is abundantly clear from Articles 17 and 126 that it is the person who is entitled to the fundamental right who can be the petitioner by himself or by an attorney-at-law on his behalf and no one else. The question whether a third party can bring the action was considered by a bench of five judges in Somawathie vs Weerasinghe (1990) 2SLR 121. The majority decision was that not even the wife of the torture victim had standing under Article 126.

Unambiguous

Putting the Article under close scrutiny Justice Amerasinghe J. held the words to be clear and unambiguous. He added “Separation of powers requires me as a judge not to presume, that I know how best to complete the legislative scheme. In such a situation any attempts on my part to fill the supposed gaps would lead me to cross the boundary between construction or interpretation and alteration or legislation.” In taking this view he took into consideration that otherwise even a concerned citizen could claim standing.

In Faiz v AG (1995) I SLR 372, agreeing with Justice Amerasinghe, Justice Mark Fernando said “Article 126 does not enable the court to reach all those responsible, at least by means of just and equitable orders and directions. Thus jurisdiction cannot be expanded by twisting, stretching or perverting the court through a populist process of activist usurpation of the legislative function thus creating a judicial despotism under which the courts assume sovereignty over the constitution... for the Rule of Law binds the judiciary as well as other organs of government.”

Again the same Judge in Sriyani Silva v Iddamalgoda (2003) I SLR 14 drew attention to the fact that Article 126(2) gives only the person who alleges that a fundamental right “relating to such person” (emphasis in judgment) has been infringed to apply to court. It is a very limited exception as to who can bring a fundamental rights case justified by the special facts of each case. It was applied also in Rani Fernando vs Seeduwa Police (2005) 1SLR 40. Article 126 is a constitutional provision and an interpretation must be appropriate to the words.

Consistent decisions

There is a consistent line of decisions as to who is entitled to be the petitioner in an application under Article 126 and good reasons have been given. Our writ law is unwritten and can and has been developed in a liberal manner. The “new doctrine” of the scope of fundamental rights litigation has not seen the distinction.

Let us see where the ‘new doctrine’ has led us from some decided cases. In the P-TOMS case (Weerawansa v AG) 30 MPs of one political party who clearly did not satisfy the test in Article 126 succeeded by an application under Article 126 in overturning a political decision of the government. Their contention that they were acting in the public interest was accepted by the Supreme Court.

The many fundamental rights cases that have been filed recently show the wide powers assumed by the Supreme Court in its fundamental rights jurisdiction. All declarations, orders and directions made by the court are not reviewable by any authority and some, if not all are backed by court’s contempt powers which are also not subject to review. These cases show the far-reaching consequences of the decisions and how they came to be made deserves examination.

Acceptance of a petition under Article 126(2) from virtually any person claiming to act in the public interest or on behalf of the citizens of the country and the wide interpretation of equality before the law and equal protection of the law in Article 12(1), together with the wide powers assumed under Article 126 (4) are the cornerstones of the ‘new doctrine.’ The authorities for the new doctrine are Dicey’s Rule of law, Wade on Administrative Law, India’s public interest litigation, the public trust doctrine, and our own cases such as Premachandra Vs Jayawickrema (1994) 2SLR 90, Bandara v Premachandra (1994) 1SLR 301, Bulankuluma v Secretary of Industries (2000) 3SLR 243, Faiz v AG (1990) 1SLR 372 and they require a separate article for analysis.

Judicial redress

Suffice for the moment to quote Chief Justice Bhagawati “where a person, class of persons to whom legal injury is caused by reason of violation of a fundamental right is able to approach the court for judicial redress on account of poverty or disability or socially or economically disadvantaged position, any member of the public acting bona fide can move the court for relief under Article 32 and certiorari also under Article 226, so that the fundamental rights become meaningful not only to the rich and the well to do who have the means to approach the court but also for the large masses of people who are living a life of want and destitution and who are by reason of lack of awareness, assertiveness and resources unable to seek judicial redress”

In MP Jain, Indian Constitutional Law (1998) the author states “Public interest litigation should not however be used by a petitioner to grind a personal axe. He should not be inspired by malice or a desire to malign others or actuated by selfish or personal motives or by political or oblique considerations. He should be acting bona fide and with a view to vindicate the cause of justice.

The Supreme Court has cautioned that public interest litigation is a weapon which has to be used with great care and circumspection and that the judiciary has to be careful to see that under the guise of redressing a public grievance it does not encroach upon the sphere reserved by the constitution to the executive and the legislative.” This statement is all the more applicable to the constitution where decisions are final and not subject to review.