The Rights We Want

By Uditha Devapriya –OCTOBER 9, 2021

Uditha Devapriya

Among Sri Lanka’s largely idealistic middle-class, there is an almost Panglossian belief in the necessity of political reforms. These reforms are, more often than not, framed in terms of constitutional rights, duties, checks, and balances. This is the rhetoric of term limits, small government, and separation of powers: the idea that a country’s State will function best if its powers are clipped. Once its powers are reduced, so the logic goes, people will be able to do as they want, liberated from the constraints of authoritarian bureaucracies.

From the neoliberal right to the liberal left, these ideas have caught on everywhere, to the extent of dominating policy discussions in the country. That is what unifies the JVP and the UNP in their call for the abolition of the presidential system: the notion that the problems of the country are reducible to the flaws of its Constitution.

The SJB remains divided over these issues: hence while one section of the party allied with the UNP yahapalana project rigidly hold on to these ideas, another section has become more flexible. That explains Bandula Chandrasekara’s and Anuruddha Karnasuriya’s responses to Victor Ivan over Champika Ranawaka’s position on the Executive Presidency. As their replies make it clear, far from viewing it as an aberration to be abolished, the Ranawaka faction sees the presidential system as indispensible to the country’s sovereignty.

The notion that the government presents more problems than solutions to a reformist agenda rests on the division, made by liberal theorists, between political and civil society: a convenient construct traceable to no earlier than 17th century Europe. This division followed from the dissolution of feudal society into capitalist society, a process completed between the 16th and 19th centuries. Political philosophers from that period drew a line between the State and the Citizen, cordoning off the one from the other. It is this phenomenon that Marx examined in his reflections “On the Jewish Question.”

For Marx, there was nothing intrinsically non-political about the feudal order: “the character of the old civil society was directly political.” The transition to capitalism signified a rupture in this order, emancipating the citizen from the government and reducing his situation in life “to a merely individual significance.” The new society made the citizen the “precondition” of the State, endowing him with certain rights that separated him from the latter.

These rights were defined in terms of a freedom to do something, rather than actual political emancipation. Thus, in the new State, “man was not freed from religion, he received religious freedom… [h]e was not freed from property, he received freedom to own property.” It was no less than the gospel of 17th century English liberalism: the philosophy of man at his most egotistic, or what C. B. Macpherson labelled as “possessive individualism.”

What we need to note here is that the distinction between negative and positive rights first emerged from these debates. Distinguishing between these is rather like splitting hairs, but the difference between them has to do with their aims: hence while negative rights prevent others from interfering with your freedom to do something, positive rights recognise a wider role for the government to play in addressing the needs of the marginalised. Neoliberals and even certain left-liberals belong to the former category: those who believe the State’s role is that of a Night-Watchman who sets the rules without playing the game.

Such competing conceptions of rights and freedoms survived the 19th century. In the wake of the Second World War, multilateral institutions began recognising the need to go beyond a negative definition of these ideals. Thus the Universal Declaration of the United Nations, in Article 25, lists down a number of economic necessities such as “food, clothing, housing, and medical care” it deems everyone has a right to. That it left the implementation of these rights to individual States without specifying the manner of implementation did not take away from the point that they were now regarded as a part of the new world order.

These provisions served as the basis for the two most important conventions on economic, social, and cultural (ESC) rights to be enacted in the post-war conjuncture, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights (both 1966). The Stockholm Declaration of 1972 and the Rio Declaration of 1992 reflected and consolidated these developments, with an important intervention by the Czech jurist Karel Vasak (“three generations of human rights”) confirming the view that human rights exist beyond mere civil and political principles.

Yet debates between these two schools of thought continue to rage, even in Sri Lanka. Thus advocates of negative rights, who dominated economic discussions in the previous regime, bemoan attempts by human rights groups to constitutionalise ESC rights, comparing activists to collectivists no different from the most unrepentant Stalinist. Their websites and blogs put down every progressive personality, from Roosevelt to Raúl Prebisch, while promoting what Dayan Jayatilleka in characteristic élan calls “antediluvian rightwing thinkers.”

The peak, or nadir, of these put-downs came out in a recent opinion piece that compared economists critical of neoclassical economic theories and assumptions to harbingers of the plague. Reading such screeds, one can’t help but recall the kind of hysteria which dominated economic thinking during the Kotelawala presidency, in particular the oblique references to Communists in the Central Bank by news editorials and the almost McCarthyist hounding of the likes of S. B. D. de Silva (who later left the Bank) and Rhoda Miller de Silva (who left the country, or rather was forced to) by the then government. It goes without saying that, as Dr Jayatilleka aptly observes, such thinking would find a home in rightwing regimes across Latin America, rather than in Asia’s oldest democracy.

Sri Lanka’s neoliberals are by no means alone in making hysterically crass generalisations: in its criticism of human rights treaties, for instance, the Heritage Foundation compared moves towards legalising economic rights to no less than “the 75-year communist experiment.” If a brief perusal of policy documents and political columns reveals anything, it’s the Sri Lankan neoliberal right’s barely disguised contempt for anyone who advocates a conception of rights that, as James Peck puts it, “has less to do with individual freedom and more to do with basic freedoms.” But to support the latter is not to be a Communist, even less a “Stalinist”: a point yet to be appreciated by Colombo’s neoliberal economic circles.

The hysteria that determines the thinking of the latter does very little credit to their claim of knowing how to solve Sri Lanka’s economic problems. What characterises their thinking is an almost unyielding belief in 17th century European liberalism; they accept, at face-value, what political philosophers from that era are supposed to have said on various matters. That their opinion pieces are liberally littered with references to these philosophers indicates what they believe to be the way forward for Sri Lanka. But in assuming that their preferred way forward is the only path ahead for us, they sidestep two important points.

The first is the very flawed assumption that what held true for 17th century Europe will hold true for the present conjuncture. Of course the argument can be made that these notions of economic and political freedom can be adapted to any context. But then we face the second problem, one identified less by “home-grown” nationalist thinkers than by Western political theorists (to mention three: C. B. Macpherson, Domenico Losurdo, and Charles Mills): that the political system these philosophers supported, in their day, rested on institutions which are out of date and out of place today: to name just one, slavery.

Indeed, far from failing to see a contradiction between their support of liberal ideals and the realities of slavery, they defended the latter and actively took part in the slave trade. Their political system, in other words, provided the foundation for their liberal ideals, even if they drew a fine enough line between political and civil society.

As Shiran Illanperuma has observed well in a series of columns recently, moreover, English liberal philosophers made their pronouncements on free enterprise and free trade, among other abstractions championed by defenders of negative rights today, at a time when Britain was imposing un-free and unequal trade on the rest of the (mostly colonised) world. This is what Ha-Joon Chang has outlined in his work on economic history as well, most importantly the role played by tariffs – a monstrous aberration in the books of free market advocates – in Britain’s and later the US’s rise as an industrial power.

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