Democracy is an egalitarian form of Government in which power is held directly or indirectly by citizens under a free electorial system.
Sri Lanka’s Constitution is democratic in the sense that Government’s authority is derived from the people. The popular expression ‘rule of law’ is often referred to when democratic liberties are discussed. For democracy to be meaningful equal opportunities for development should be available to all people.
Hence, concentration of economic power creates inequalities of opportunities and thus prejudicial to the achievement of democracy.
Concept of equality
The concept of equality and liberty, so central to the discussion of justice lies at the root of the democratic idea. All great revolutions aimed at striking off arbitrary rule of one form or another have stressed both concepts.
The Universal Declaration of Human Rights of 1948, among others, proclaims, in Article 1, that all human beings are born free and equal in dignity and rights echoing Article 1 of the (French) Declaration of the Rights of Men 1789.
While the concept of equality has an ancient history, it is in modern times that equality assumes a significant role in the theory and practice of politics.
Far back in history, Aristotle in his work – The Politics identified inequality as a cause of strife.Engels in his work – Anti – Duhring, considered the modern demand for equality something entirely different from the ancient idea that ‘all men, as men have something in common and to the extent are also equal. The modern idea ‘consists rather in deducing from that equality of men as men a claim to equal political and social status for all human beings or at least for all citizens of a State or all members of a society.
In discussing equality and the need to achieve it, it is important to correctly identify the real causes of inequality. To Prof. Laski, ‘No idea is more difficult in the whole realm of political science as the concept of equality.
He said that equality does not mean identity of treatment. This is because there can be no identity of treatment as long as men are different in want and capacity and need. According to Prof. Laski equality means, first of all, the absence of privilege and in the second place that adequate opportunities are laid open to all.
He saw inequalities of wealth as a source of inequality. The attainment of freedom is impossible and political equality is never real unless accompanied by virtual economic equality. It is Marx and Engels who highlighted inequalities more than any other. According to them, inequality is the result of class divisions which are unjust but historically necessary. They are finally alterable in a classless society.
Prof. Rawls saw two essential requirements in the notion of equality: A. Each person has an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties to all. B. Social and economic liberties are to satisfy two conditions. First, they must be attached to offices and positions open to all under conditions of fair equality of opportunity and second, they must be to the great benefit of the least advantaged members of society.
Human beings by nature are of unequal strength, talent and other attributes are clearly not units of equal weight in their societies. The inequalities of nature are reinforced by the social and economic circumstances which as people commence life, place some at an advantage over others.
Far greater is the impossibility of preserving general equality for any period, however short. A permanent state of equality is only the remotest dream.
There are two famous legal expressions linked to the concept of equality, namely (A) all persons are equal before the law and (B) all persons are entitled to equal to protection of the law.
The expression” “equal protection of the law” is found in the 14th Amendment to the United States Constitution. Article 18 of the 1972 Constitution of Sri Lanka embodied both phrases. Article 12 of our present Constitution also embodies both phrases. The Indian Constitution in terms of Article 14 also uses both expressions. Article 7 of the Universal Declaration of Human Rights contains both expressions. Article 26 of the International Covenant on Civil and Political Rights also embodies both aspects of the concept of equality.
Equality before the law is the negative aspect implying the absence of any special privilege in favour of any individual and the equal subjection of all classes to the ordinary law. Equal protection of the law is a more positive concept and implies equality of treatment in similar circumstances.
The varying needs of different classes require separate treatment and the concept of equality does not take away from the State the power of classifying persons for legitimate purposes. The State is therefore permitted to make laws that are unequal and to take unequal administrative action when dealing with persons who are placed in different circumstances and situations. It aims at equality by treatment of equals.
Inequality, per se, does not violate equal protection, for every selection of persons for regulation pronounces inequality in some degree. The inequality to offend the legal concept must be actually and palpably unreasonable and arbitrary.It does not forbid reasonable classification. In order however to pass the test of permissible classification, two conditions must be fulfilled, viz (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that the differentia must have a rational relation to the objects sought to be achieved by the act.
What is necessary is that there must be a nexus between the basis of the classification and the objects of the law. It is now settled that the Equal Protection Clause prohibits discrimination not only by substantive law but also by law of procedure.
Formal equality and substantive equality
Formal equality is premised on an abstract individual, judged on personal merit. The formal equality insists that group-based characteristics are irrelevant; and seeks to replace their use in allocating decision-making by merit-based criteria. One of the key insights of substantive equality is its departure from the symmetry of formal equality.
It is not colour, gender or some other group characteristic per se which is in issue, but the attendant disadvantage, both social and economic. To bring about real change, the State should act positively to promote equality. This in turn requires the State to take affirmative action. Article 12 (4) of our Constitution embodies such an affirmative provision.
In framing an alternative concept of substantive equality, distributive justice plays a central role. It calls for a duty upon the State to take positive measures to promote equality, including, where appropriate, allocation of resources.
But this poses a dilemma for judges grappling with the contested meaning of substantive equality, because resource allocation requires a complex assessment of wide ranging facts and necessitates the setting of priorities and the balancing of interest.
The role of the courts
Many welfare States make a political commitment to distributive equality by providing for the disadvantaged groups. The political arena is therefore seen as the primary space for developing the positive duty to provide, a space which judges are rightly reluctant to invade.
The courts’ role in applying substantive equality is then limited to scrutinising the appropriateness of criteria for eligibility for exclusion. But because the aims of substantive equality are broadly in sympathy with provision of benefits, courts have searched for additional criteria, supplementing the grounds prohibited by formal equality, to distinguish appropriateness of criteria for eligibility from inappropriate categorisation.
The courts should not be substituting their decisions for those of policy makers on resource allocation. Instead, they should be demanding proper democratic accountability. This entails an explanation of the decision which is reasonable and proportionate and is based on evidence rather than generalisations or judicial notice.
In this way the courts contribute to the democratic process both by strengthening accountability and by ensuring that political deliberation includes those who would otherwise be silenced in the political arena.
The duty to provide, which constitutes the core of substantive equality, remains a primarily political impetus, unless the State’s Constitution includes express enforceable socio-economic rights or the courts are in a position to imply such rights from civil and political rights.
Nevertheless, even in the absence of such rights, courts have a role to play in furthering substantive equality. To ensure that substantive equality furthers its aims of addressing disadvantage in society, the courts will need to develop criteria to assess the State’s policies on resource allocation and the provision of benefits.
In Sri Lanka the majority of the enforceable fundamental rights in Chapter III of our Constitution are civil and political rights. In the absence of enforceable socio economic and cultural rights (SECR), in our Constitution, our Supreme Court by judicial activism has been able to realise for the benefit of the population a few such rights: e.g. educational rights, through the equality provisions (Article 12) of our Constitution, aided by Public Trust doctrine. (per His Lordship Sarath N Silva C.J in Grade I Admission Case), (2007)).
In this sense the right to equality is not only a fundamental right but also a means of enforcing other rights provided it is used properly. Therefore it is very essential that SEC rights of our Constitution be made enforceable under a new Constitution.
The charter of liberty of Sri Lankan citizens
Article 14 of the Constitution which declares inter alia, the freedoms of speech, assembly, association, manifestation of religion or belief, culture, occupation and movement can be called Charter of Liberty of Sri Lankan Citizens.
According to his Lordship, Sharvananda C.J. ‘Article 14 of our Constitution deals with those great and basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free country. (Joseph Perera v Attorney General (1992)).
These rights are available only to the citizens. The restraint imposed on the liberty of one individual is to secure the liberty of a far greater number who make up the society. Accordingly the exercise and operation of the fundamental rights declared by Article 14 are subject to a number of restrictions.
Article 15(7) as well as Article 15(2) and (15(6) permit such restrictions as may be prescribed by law, in the interests of national security, public order and protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others or of meeting the just requirements of general welfare of a democratic society. Law for this purpose includes Emergency Regulations. Lay down other restrictions on the exercise and operation of various rights declared by Article 14.
Personal liberty
The preservation of personal liberty is of great importance as it is the sine qua non of the exercise of most other rights. When one’s mobility is curtailed by detention one cannot properly exercise other rights such as the freedoms of expression, assembly, association, occupation, movement and so on.
Where discretion is permitted to those who implement a law relating to arrest and detention such laws must not be used for a wider purpose. Personal liberty has been variously defined.
Article 13 of our present Constitution declares the rights relating to personal liberty and criminal procedure. The guaranteed rights are: freedom from arbitrary arrest (Article 13(1), freedom from arbitrary detention (Article 13(2), right to a fair trial (Article 13(3)) freedom from arbitrary punishment (Article 13(4)), presumption of innocence Article 13(5)) and freedom from retro- active penal legislation (Article 13(6)). Article 13(1) and (2) permit the curtailment of personal liberty only in accordance with ‘procedure established by law’.
It is settled law that the validity of an arrest is determined by applying the objective test, whether the arrest is under the provisions of the Code of Criminal Procedure, Emergency Regulations or special laws such as the Prevention of Terrorism Act.
Freedom from arbitrary detention was recognised by our Courts even before fundamental rights were given constitutional recognition.
A landmark case is in Re Bracegirdle (1937), where an order of the English Governor himself was declared illegal. Bracegirdle, an Australian planter was arrested and detained on the orders of the Governor to be deported.
An application was made for the writ of Habeas Corpus for the release of Bracegirdle. Our Supreme Court held that the said power could be exercised only in a state of emergency contemplated by the preamble to the order in council and that the court was entitled to inquire whether the conditions necessary for the exercise of the power have been fulfilled.
The Court stated that the nature of emergency would be a state of war or grave civil disturbances, real or imminent none of which were held to exist. The court ordered the release of Bracegirdle.
Tension between equality and liberty
The question arises however whether increased equality can only be achieved at the expense of liberty, or conversely, whether expanding liberty must diminish equality. On the one hand it is clear that the ideal of equality cannot be promoted without a certain degree of liberty. Unless, for example, there is a measure of liberty, there is little chance of economic equality in a society.
If political power is in the hands of a tyrant or of a privileged class, that privileged class will perpetuate its privileges, and inequality will continue to be the order of the day. This was indeed the position in England after the Industrial Revolution, when inequality and economic exploitation reigned supreme.
It was only after some degree of diffusion of power was attained with the Reform Bill of 1832 that a systematic attempt was made to end such inequality. The French Revolution is another classic example, for it needed the liberty achieved by the revolution to achieve equality.
Just as liberty generates equality, so equality generates liberty, for once the citizens of a state achieve a greater measure of economic equality they do not readily accept an inferior political position and kick against such restraints as are left. Rousseau made this point in The Social Contract, when he emphasised the dependence of liberty upon equality.
Economic liberty and economic equality
There is a more important qualification, especially in the sphere of economic liberty, which has great relevance to modern conditions. Not infrequently there is a marked degree of tension between economic liberty and economic equality.
For example, if one desires greater freedom of contract, there is correspondingly a restriction on equality, for such freedom facilitates vast concentrations of wealth and power.
Those possessing such wealth and power would then be so superior in bargaining power to others that there would be semblance of equality between them and the vast mass of citizens with whom they would do business.
Conversely, if there is a restriction upon the freedom to contract freely, that restriction would be interpreted as a limitation of freedom.With earth resources shrinking, the last frontiers reached, colonialism dead, there is just not enough land or earth resources to permit of a continuing applicability of laissez-faire. There must be therefore be restrictions and controls of various sorts.
On a balance of all considerations the need is clear for limitations of some sort upon the restricted appropriation by a few of the earth’s resources which rightly belong to all. This cannot be achieved without controls.
Equality necessarily spells out a restriction of freedom. There is, for each nation, both a national and an international dimension to the problem. Nationally, the measures of control will need to be determined upon a fine balance of the principle of equality against the principle of freedom, to be worked out in the manner most appropriate to that society’s needs and background.
The particular mix that suits one country will not necessarily suit others. Each country will need to determine this for itself.
We are living in an age of economic globalisation. Negotiating the often – volatile forces of globalisation while managing a process of rapid transformation is not an easy exercise in governance. It is a challenge directed not only at the ruling party but also to the entire spectrum of positive forces that have a stake in order, stability, peace and the welfare of the people.
The writer is a retired professor in law, the only law professor to date produced in the history of the University of Sri Jayawardenepura. He is an Attorney –at – Law, practised in Courts and holds a PhD in law.