Nanny State, Night-Watchman State and Servant State

Extractive institutions and the abuse of power

What is the role of the state in the economy and society? The debate in this context revolves around what can be described as the ‘Night-Watchman State,’ which is understood to be entrusted with the minimal enforcement of law and order, so that the citizens could lead their lives in peace and harmony, the interventionist ‘Nanny State,’ which tries to regulate and provide incentives to improve the allocation of resources and influence social behaviour, and the new concept of a ‘Servant State’.

Implicitly, all the formulations on the role the state can play, accept Max Weber’s definition of the ‘Political’ state as the entity that necessarily has the monopoly of legitimate violence, with the nation. This monopoly of legitimate violence, exercised by the state through, lawful internal law enforcement agencies, implies that the state and its lawful agents have the legitimate power to coerce the citizens to be law abiding.

The laws that the legislature elected by the citizens’ free and fair vote, has enacted, in terms of a mandate given to the legislature by the citizens at an election conducted on democratic principles. Unfortunately, it has been historically, established beyond doubt, that it is in the nature of things, almost as a part of human nature, that this power of the state to coerce its citizens, will be abused. In a transparent and accountable society such abusers will be brought before the judiciary and dealt with according to law.

Gerald Perera

Recently, it was reported in the Sri Lanka newspapers that the Court of Appeal had ordered the retrial in the case of the allegation of torture of one Gerald Perera, made against some Police officers. The Court of Appeal quashed an acquittal of four of the accused Police officers by the High Court of Negombo.

All the Police officers were attached to the Wattala police during the time Gerald Perera alleged he was tortured around 2 June 2002. Perera had complained of being severely tortured at the Wattala Police Station after he was arrested on a mistaken identity. After the arrest he alleged that he was hung from a beam and assaulted with iron rods. As a result of the severe assault he suffered renal failure and remained unconscious for two weeks.

He was saved due to the untiring effort of the medical staff of a Colombo private hospital. He remained warded in the hospital for several months and was treated for injuries over his entire body due to the assault. Extensive medical evidence was led at the trial by the medical team at the hospital.

The High Court Judge held that the arrest of Gerald Perera by the four Police officers had been proved on evidence. The Judge also found that there was evidence that the injuries Perera suffered from were caused at the Wattala Police Station. However the trial Judge acquitted the accused officers on the grounds that there was no direct evidence on who in fact assaulted Perera at the Wattala Police Station. However, previously, the Supreme Court had found that all the accused Police Officers were responsible for torturing Gerald Perera at the Wattala Police Station and awarded him substantial damages.

Unfortunately, Gerald Perera was assassinated one week before he was to give evidence at the criminal re trial for torture filed against the Police officers. The first accused and another in the torture case have been charged in a separate case for murdering Gerald Perera. That murder case is still pending.

Rodney King

Twenty years ago, in a somewhat similar example, in the United States, the city of Los Angeles, were shaken by violent racial riots after four officers of the Los Angeles Police Department (LAPD) were tried and acquitted of the beating of one Rodney King, a young African American.

On 3 March 1991, King had been driving intoxicated and had disobeyed Police orders to stop his vehicle. He was forcibly stopped and pulled out of his vehicle and Tasered with a type of stun gun and fell to the ground. Although unarmed and fallen to the ground, King was struck repeatedly with the LAPD officers’ batons and suffered a fractured facial bone and a broken right ankle, among other serious injuries.

The King case remains one of the best known cases of Police brutality in the USA. Subsequently there was a retrial of the LAPD officers and they were dealt with according to law. King died recently, a broken man, reduced to abusing of alcohol and drugs due to the traumatic experience he underwent at the hands of the LAPD.

Prime examples of abuse of power

The examples of Gerald Perera of Sri Lanka and Rodney King of the USA are prime examples of the abuse of power by the coercive agencies of the state. These coercive agencies have been described as ‘extractive institutions’.

James Robinson and Daron Acemoglu, in their book ‘Why Nations Fail; The Origins of Power, Prosperity and Poverty,’ say the such extractive institutions benefit a politically powerful elite by taking resources from the majority of society and facilitating the transfer of those resources to the politically powerful and their acolytes. To accomplish this, elites have to subvert the agencies that implement the coercive power of the state for their own ends.

It was this power for example that allowed the British colonisers in Sri Lanka, just after the Kandyan Kingdom was ceded to them in terms of the Kandyan Convention of 1815, to enact and enforce an ordinance called the Waste Lands ordinance, in terms of which all lands in the Kandyan Provinces for which there were no title deeds, were deemed to be waste land, those lands were vested in the crown and handed out to British entrepreneurs at knock down prices for the planting of coffee, after a humongous deforestation.

In the Kandyan Kingdom, all land was vested in the King. Where the King had made land grants to employees of the state or to religious institutions, called Nindagam, Devalagam and Viharagam, the recipients had a Sannasa from the King. All other land was communally utilised by the villagers living in the area and used for cultivation, slash and burn agriculture (Chena’s) and grazing cattle and collecting fire wood, hunting and gathering etc, no title documents existed. In one stroke, the Colonial government through the Waste Lands ordinance deprived the people of their common land and drove the villagers to abject penury.

The Kandyan Peasantry Commission Report of 1951 details the tragic and parlous situation the Kandyan villagers were reduced to due to the plantations being opened up. It was this kind of abuse of the coercive power of the state that allowed European colonisers everywhere, the English, the Spanish and the French to appropriate land to set up the plantation economy in all their colonies.

Slavery and indentured labour was also institutionalised through the subversion of the coercive power of the state. African slave labour kidnapped from Africa and transported, under inhuman conditions, through what was called the ‘Middle Way’ across the Atlantic Ocean to the Americas and the Caribbean, and Indian and Chinese indentured labour taken to other parts of South Asia, East Asia, Australia, the Pacific Islands and Africa, was also a result of this process.

This was also the basis of the power that sustained the foundation of the apartheid state in South Africa, which lasted until 1994, barring black Africans from almost all skilled occupations and giving them little choice but to work as cheap labour in white owned mines and farms. In this type of society it was crucial that the elite could exercise the states’ power and abuse it, without significant constraints, making its agents feared among the general populace.

It is significant that, both in the Rodney King case and the Gerald Perera case, it was the Judiciary that was able to stop the rot and take steps to ensure that the Rule of law was enforced, although in the Gerald Perera case, this is still a work in progress, unfortunately.

Traditional systems

It should be noted that in civilised societies, systems emerge, over time through adoption of best practice, to create a more equal distribution political power, as well as developing constraints on the exercise of power by the rulers and the elites.

For example, in Buddhist societies, the Dasa Raj Dhamma, the ten principles of Buddhist governance, as extracted from the teachings of the Thathagatha, Gautama the Buddha, was a very real constraint on the exercise of power. In addition in the Sinhala Kingdom, the constraint of traditional customs and practices, Sirit Virith, as enforced by the palace officials and the Maha Sangha, were also a constraint on the abuse of absolute power. In all traditional systems such constraints were present.

Around 300 years ago, Europe began to develop , what can be called inclusive institutions, which create a more equal distribution of political power as well impose constraints on the exercise of that power. These inclusive political institutions, in turn resulted in inclusive economic institutions developing, which provide incentives for investment of resources and innovation to create a more level playing field in the area of economic opportunity and social advancement.

Such inclusive institutions not only make for a better open and transparent society but are also create more sustainable institutions which are stronger and more sustainable than extractive institutions. The reason being is that all parties buy into these inclusive institutions and participate, while the extractive institutions thrive only on unencumbered and unlimited power, which is not sustainable, as the threat from within, rival elites trying to oust those in authority and take over power, are constantly challenging the status quo.

A written constitutional document, which is supreme, a transparent and accountable political system, a clear separation of powers, a free media, an independent Judiciary, an autonomous public administration, free of political interference, are the basic and fundamental institutional structures which emerged out the process of democratisation in Europe and was carried over to the Americas and the rest of the world.

It is said that the Constitution of the USA has the most effective checks and balances on absolute power. As Lord Acton has said: “Absolute power corrupts, absolutely.” However the raw and unpleasant truth is that, notwithstanding the presence of inclusive institutions, buttressed by a written constitution, which is enforced by independent judges and administered fairly by autonomous administrators, often the relationship between the state and the citizen is one of the domination of the citizen by the state.

Although the United States has more than sufficient checks to avoid the excess of power by any organ of government, Executive, Legislative or Judicial, and strong laws which keep the media within reasonable constraints of good conduct, poor and marginalised citizens and illegal immigrants fear the police and even other branches of government and are often slandered by the media.

Recently, due to the scare over international and domestic terrorism, the states’ power to monitor, control and coerce the citizen has increased by unacceptable leaps and bounds. Co-relatively the ability to monitor, control and provide redress for the state abusing its power and harassing citizens has been severely diminished and constrained.

The hierarchical relationship between the state and citizen is not confined to the police and security forces, even bureaucrats, often make major decisions affecting enterprises and the lives of the ordinary citizen which often leaves the subject party with little practical recourse, as with a rabid slanderous media regime.

South Africa

The extensive power of the state means that even relatively inclusive institutions can backslide into extractive ones. Inclusive institutions will often be challenged because , even where there is a fairly even distribution of political power, those who are able to take control of the state machinery, can use its coercive capacity to change economic and social rules to their advantage and to silence dissent and protest, against their takeover.

Consider the case of South Africa. Until recently South Africa was the most economically successful country on the whole African continent. It counted for 40% of the total GDP of the 48 countries south of the Sahara. Despite the cursed apartheid heritage, South Africa’s transition to democracy was anchored on solid institutions, a Parliament and an electoral system up to acceptable standards, a good constitution, independent courts, a free media and a world class stock market.

Free South Africa’s first ANC President Nelson Mandela’s extraordinary magnanimity was crucial in averting a racial conflict at the time majority rule was established. But since Mandela retired in 1999, South Africa has gone into reverse. Mandela’s successor Thabo Mbeki was a disappointment, he was too racially divisive.

Jacob Zuma took over in 2009. Zuma, whose morality and honesty had been questioned, was stuck between impatient masses, the anxious business community and corrupt ANC leaders. Zuma has been inconsistent and had to face a challenge from populists like youth leader Julius Malema, who play on the frustration of the majority black community, demanding a bigger share of the economic cake. Zuma also has failed to take on corruption. Under him the ANC has tried to undermine the independence of the judiciary, the police, the prosecutors and the media.

The distinction between interest of the ANC, the governing party and the state has been confused. Allegations that contracts for lucrative public works are dished out to political cronies abound. The joke is that the Government has been mortgaged to ‘tenderpreneurs’! Wealth is siphoned off and evenly redistributed. South Africa today is said to be a de facto one party state and an elective kleptocracy.

Reasonable balance required

As this South African example shows, inclusive institutions exist very precariously. There has to be a reasonable balance between the state accumulating enough power to enforce property rights and maintain law and order, but this should not permit the state to impose a climate of coercion on the ordinary citizen. The state must not succumb to an elite take over; the coercive power of the state is always something the elite political class will crave for. Perhaps it is time for the emergence of the Servant State; an entity whose agents are not feared by the ordinary citizen and are less able to coerce innocent people.

This does not necessarily mean removing the power of the state to regulate society. It means reinforcing the notion that state power emanates from and is sourced to the citizen’s mandate. The citizens should be empowered to monitor more closely and reclaim that power when it is abused or used coercively.

How can this be achieved? Firstly we require an attitudinal change that the coercive institutions of the state, (e.g. the Police) have to be regarded as just another service provider to the public, paid for by taxpayer’s money. The citizens must have the right to demand due process from the coercive service providers of the state, and if as in Gerald Perera’s case and Rodney King’s case, where there is a gross failure of due process and abuse, the judiciary must step in and punish the offenders. State agents who abuse power or misbehave in any manner should be punished according to the law; the citizens’ fundamental rights should be protected by the Judiciary.

Secondly, cutting edge communication and information technology must be utilised to facilitate this change in attitude and influence the behaviour of society at large. In Rodney King’s case at Los Angeles, it just happened that a private citizen videotaped the assault on King by the LAPD officers from his apartment balcony, overlooking the road. When the officers were first acquitted, there was outrage by a public who had seen the video footage and witnessed the officers assaulting King. Imagine in Gerald Perera’s case the situation if there were CCTV cameras at the Wattala Police Station?

The Government is installing CCTV cameras for surveillance all over Colombo’s roads. There is indeed a case for installing CCTV cameras at Police Stations, as cases of torture by the coercive agencies of the State are regularly reported. With 3G mobile phone technology being so pervasive, soon our people will be adept at filming on their mobile phones any abuse by State agents of ordinary citizens, and immediately put the incriminating evidence on YouTube. There are already laws on the statute book which make such evidence admissible in courts.

As in the iconic Beatles song ‘Imagine,’ imagine what the consequences would have been if a passing Thomian schoolboy had by chance recorded the assault on Manjula Thilakaratna, Secretary to the Judicial Service Commission, by a bunch of goons, on that balmy Sunday morning, near S. Thomas’ College Mount Lavinia! The fallout would have been humongous – not the least for the school boy!

Other policy reforms such as making real time data on Government behaviour, both political and bureaucratic, available in a transparent manner to the public, enacting a meaningful Right to Information Act , citizen oversight of certain types of investigations by State agencies, protection of whistleblowers, will be a big step forward.

Given the investments we have made in health and education over decades and the resultant virtual first world social indicators , which we boast of, fundamentally it is the diffusion of power to the periphery – Provinces, Districts, Local Government units and Grama Sevaka divisions, empowering the ordinary citizen – as against the present concentration of power among Colombo centric elites, politicians, bureaucrats and planners, which would be the best safeguard, against the capture of the coercive agencies of the State by elite groups and turn inclusive intuitions into extractive ones. Only then will the ‘Servant State,’ in which the ordinary citizen is king, emerge.

(The writer is a lawyer, who has over 30 years experience as a CEO in both government and private sectors. He retired from the office of Secretary, Ministry of Finance and currently is the Managing Director of the Sri Lanka Business Development Centre.)