Defragilizing Sri Lanka

| by Dr. Ruwantissa Abeyratne
( January 18, 2013, Montreal, Sri Lanka Guardian) Nassim Nicholas Taleb, the bestselling  author of The Black Swan,  in his book Antifragile introduces the reader to the interesting and well-reasoned concept called “Antifragile”.  He states that any system which depends on predictability  and presumption is fragile and that “some things benefit from shocks and they thrive and grow when exposed to volatility, randomness, disorder and stressors”.   According to Taleb black swans (which as we all know are a rarity) are large-scale  unpredictable and irregular events  which can either devastate those that are  fragile and  dependent on a certain rigid stability, or energize risk takers and flexible persons into action.  Antifragility is associated with risk taking and anticipating the unthinkable.
At a recent interview with CNN, Taleb gave the example of Egypt, which caved in under an uprising because they had depended on the only thing they knew – a dictatorship – and were so fragile as to disintegrate into chaos after the fall of the dictator.  Another example cited is China, with an administration of appointed persons where there is  no backup system if the administrative system it solely depends on, somehow fails.  On the other hand he cites Switzerland as antifragile  and survivalist, should political change happen there.
He calls those who comprise a fragile society Fragilistas whom he identifies as follows:
“The fragilista belongs to that category of persons who are in suit and tie, often on Fridays; he faces your jokes with icy solemnity, and tends to develop back problems early in life from sitting at a desk, riding airplanes, and studying newspapers.  He is often involved in a strange ritual, something commonly called “a meeting”.   Now, in addition to these traits, he defaults to thinking that what he doesn’t see is not there, or what he does not understand does not exist.  At the core, he tends to mistake the unknown for the non-existent”. 
One could arguably conclude on the aforementioned basis that we were fragilistas at 9/11, fragilistas when 20 little ones and 6 adults were massacred with an assault rifle by a deranged killer in an elementary school in Connecticut,  and fragilistas when a 23 year old woman was brutally raped and killed in India.  We were in our suits attending meetings, snug as bugs in a rug until these events occurred.  We were naive rationalists who believed in the stability of an assumed security.
The question closer to home is: were we fragilistas when the impeachment was thrown at us like a bombshell?  Did we not anticipate it and really, as some claim, is this the end of the rule of law in Sri Lanka?  It may well be, but on the other hand, it might not.  It would all depend on how much the country can be antifragile and rise from the crisis.  This essay  by no means supports the impeachment process nor does it refute claims of the lack of due process in the removal of the former Chief Justice. Any fight in this regard is left to the expert lawyers and jurists who write prolifically to this Journal.
The aim of this essay is to examine a few antifragile measures to ensure that the Rule of Law continues in the Country.
Justice must have a goal; a moral compass that leads to addressing communalist interests.  In this contest our society must query whether we should  embrace communitarianism – a philosophy which queries whether   the principal task of government is to secure and distribute fairly the liberties and economic resources individuals need to lead freely chosen lives. Should standards of justice be found in cultures and traditions of particular societies and therefore vary from context to context?  If so what are the standards of justice that the society of Sri Lanka looks for? And should they be conveyed by the judiciary?
The writer believes that,  firstly, the people, and most of all the judiciary, must continue to work on the fundamental premise that law is the driver of human behavior and the foundation of freedom.  Sri Lanka – the land of the free – must not become a minefield of legal convolution and  maneuvering by the powers, whether they be  the legislature, the judiciary or the executive.  We should exit the wrong frame of reference we are in  where individual rights give way to the collective will of a few in power.  The current framework portends a formula for social paralysis unless we judge law from the perspective of its effect on society rather than in the context of individual issues.  More importantly, the law must be trusted as the bastion of fairness and equity on the basis of justice as dispensed by the courts.  The legislature makes laws but the judiciary must interpret them; not the legislature, which should not end up judging its own cause.  Laws must be simplified so that the citizen who is not burdened with a legal education can understand it. Authority must be given to judges to interpret the law.
We live in a complex world of power and self-interest. We should not make it more convoluted with  argumentative philosophies.  This is not the time to polarize ourselves between Bentham’s Utilitarianism and Kant’s Categorical Imperative.  This is the time to ponder the true meaning of justice and its beneficial effects on a society that depends on it.  What is justice? As Lord Atkin said in the case of Ambard v. Attorney General: “Justice is not a cloistered virtue; she must be allowed to suffer scrutiny and respectful, even though outspoken, comments by ordinary men – It is prima face legitimate to criticize a judge’s conduct in a particular case or to criticize any particular decision or series of decisions given by the courts if done without casting any aspersions on the motives of the judge or court, and without abuse. The courts are not above criticism”.
For that matter, no one is above criticism.  Not the Legislature, not the Executive, and not the judiciary.  The trick is to create a system where this fundamental truth is allowed to flourish without let or hindrance, without fear or fervour.  Then, we would have defragilized ourselves into a society that can survive any black swan.

Author: Sri Lanka Guardian

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