WEBINAR 7: INDIA & SRI LANKA - Sri Lanka’s Dance with Democracy
Mario GOMEZ
23 November 2020
With the passage of the 20th amendment to the constitution in October this year, Sri Lanka retreated once more into the abyss of constitutional authoritarianism. The 20th amendment unravels many of the democratic gains of the 19th amendment passed in 2015. The 20th amendment returns Sri Lanka to hyper-presidentialism with power concentrated in a strong Executive President. The President will now have the power to dissolve a democratically elected legislature after half its term, assume any ministerial post, and have the untrammelled power to make appointments to the judiciary and independent commissions. Cabinet and Parliament have been devalued yet again. This contribution argues that Sri Lanka’s tango with constitutional democracy is the result of flaws in its constitutional design, super-parliamentary majorities, and constitutional manipulation by political elites.
Constitutional Manipulation
Sri Lanka is not unfamiliar with constitutional manipulation. In 1972, the government brought in a new constitution that concentrated power in a strong Parliament and used the new constitution to extend the life of Parliament by two years. In 1977, the government won 141 out of 168 seats in the legislature and installed an Executive President by means of a constitutional amendment within months of its electoral victory. Within a year, the 1978 constitution was passed, and it created a powerful Executive with very few checks and balances. This same constitutional structure has now been restored to its full glory by the 20th amendment. In 2010, in the wake of a popular victory over the LTTE (Liberation Tigers of Tamil Eelam) the previous year, former President Mahinda Rajapaksa hurriedly passed the 18th amendment to the constitution, which enabled him to compete for a third term and abolished the Constitutional Council, which played an important role in appointments to the judiciary and independent commissions.
Constitutional Change
Sri Lanka has flirted with a variety of constitutional models over 90 years and danced from authoritarianism to democracy and back again. In 1931, the country established universal franchise under the Donoughmore Constitution long before its South Asian neighbours. This experience with universal franchise is now strongly ingrained in the national political culture and has enabled peaceful transitions of political power after periods of authoritarianism.
In 1948, the country gained independence and the first post-independence constitution modelled on the Westminster system that included a bi-cameral legislature, an independent judiciary, an independent public service, and a first-past-the-post electoral system (FPP). The nominal head of government was the Queen, and the final court of appeal was the Privy Council. While the constitution did not contain a bill of rights, it included Section 29: an early version of the ‘equality and equal protection of the law’ clause which was aimed at protecting the rights of religious and ethnic minorities.
The 1947 Constitution lasted 25 years, with power alternating between the two main political parties. A landslide victory at the parliamentary election of 1970 enabled the ruling alliance at that time to steamroll a new constitution in 1972. The 1972 constitution created a unitary state, privileged Buddhism, made Sinhala the official language, and ‘Ceylon’ became ‘Sri Lanka’. Power was centralized in Parliament and judicial review of legislation was precluded. The Tamil parties walked out of the constitution-making process.
In 1977, another steamroller parliamentary majority facilitated passage of the 1978 constitution. This time power was centralized in a strong elected executive President, with Parliament becoming a rubber stamp. The proportional representation electoral system was introduced, and judicial review of legislation was precluded. The constitution included a bill of rights but preserved the sanctity of past law, even if it conflicted with the new Bill of Rights. The Tamil parties, once again, did not vote for the new constitution. In 1987, under pressure from India, and in the middle of an ethnic war, a system of provincial councils and limited provincial autonomy was introduced.
The 19th Amendment
The 19th Amendment in 2015 radically transformed the Constitution. It reduced the President’s and Parliament’s terms from six to five years; restored the two-term limit on holding presidential office; and provided that the President cannot dissolve Parliament before four and a half years of its term have elapsed. It prohibited the removal of the Prime Minister from office by the President at will. The 19th amendment also made the President’s official acts subject to the Supreme Court’s fundamental rights jurisdiction. Previously, the President possessed blanket immunity and no proceedings could be instituted against a sitting President. The President was precluded from holding cabinet portfolios and the size of cabinet was capped at 30. The 19th amendment reintroduced the Constitutional Council, which either proposed or vetted appointments to independent commissions and the judiciary.
The Design Flaw
While the Supreme Court has generated important jurisprudence over the years, it has not had the power and prestige that other constitutional courts have had. This has allowed political actors to meddle with the constitution and the judiciary more easily than in other countries. In 1947, the Court was not explicitly given the power of judicial review of legislation, but it subsequently held that it did have that power. That power, however, was used sparingly and only to strike down legislation that encroached on the exercise of judicial power. No law was declared invalid on the ground that it violated section 29 even though there were at least two powerful cases that showed a conflict with this provision. The 1972 and 1978 constitutions explicitly excluded the power of the courts to strike down legislation; this had an impact both on its power and prestige. The power to review bills before enactment and the power to review executive action by way of a fundamental rights application remain.
Despite this lack of power and prestige, the courts have challenged the might of the State and rendered several decisions in support of constitutional democracy. In the Bracegirdle case (1937), the Supreme Court challenged the colonial Governor’s authority by holding that a deportation order against an Australian labour activist was beyond his power. In the Liyanage case (1965), a high water mark of the exercise of judicial power, the Privy Council held that the Minister of Justice had usurped judicial power in constituting a trial-at-bar to try those involved in a failed coup. In the early 1970s, in a determination on a bill, the now defunct Constitutional Court held that the legislature was aiming to assume judicial power through the proposed legislation. In 2018, the Court of Appeal and the Supreme Court came together to resolve a major constitutional crisis when the President attempted to sack the Prime Minister. The Supreme Court held that the President had exceeded his constitutional powers. In addition, there have been a long stream of cases, involving both fundamental rights and writs, where the Supreme Court and the Court of Appeal have scrutinized the exercise of executive power with rigour and developed a unique jurisprudence. Yet, since 1972, the courts have lacked the capacity to overturn legislation that conflicts with the constitution. This has made the judiciary a ‘less equal’ branch of government.
Undermining Judicial Independence
The courts in Sri Lanka have also had to deal with political challenges to their independence and this has had a damaging impact on their prestige and stature. In 1978, the very act of constitution-making undermined judicial independence and security of tenure. The 1978 constitution abolished the previous High Court and Supreme Court and established a new Court of Appeal and a new Supreme Court. Eight of the former judges of the Supreme Court were not appointed to either of the new courts, and one declined an appointment to the Court of Appeal.
By contrast, members of the legislature and the public service continued to hold office. It was clearly an endeavour to remove judges the new regime did not favour. This was followed by the appointment of two Parliamentary Select Committees, a move that humiliated the judiciary. One was appointed to probe the conduct of two judges after they had issued a judgment in relation to a fellow judge who was serving on a commission of inquiry probing the misdeeds of the previous Prime Minister. The second committee sought to impeach the then Chief Justice after statements he made an innocuous prize-giving ceremony. While the committee found that convention had been breached, Parliament did not proceed with the impeachment. Many years later, in 2012, Parliament successfully impeached a sitting Chief Justice within a period of two months. During the tenure of former President Rajapaksa, the President bypassed the Constitutional Council in making appointments to the judiciary in violation of the constitution.
Other events have also undermined judicial independence and prestige. In two cases where the Supreme Court found that state officers violated human rights, the State responded by promoting the police officers concerned and paying their compensation. In one of those cases, goons in state owned buses visited the houses of two of the judges and hurled abuse.
Dancing between Democracy and Authoritarianism
Sri Lanka’s dance with democracy continues. The 1947 constitution lasted 25 years and provided the greatest degree of democratic stability. The country transited to authoritarianism in 1972 when the constitution created a supreme Parliament. Authoritarianism continued with the 1978 constitution and the creation of a strong presidential system. Both the 1972 and 1978 processes of constitution-making were partisan processes that served to advance the interest of the ruling party. The occasions on which parties have come together across political lines have produced the 17th amendment and 19th amendment to the constitution. The 17th amendment, passed unanimously, created the Constitutional Council, and the 19th amendment, supported by 215 of the 225-member legislature, created a balanced form of constitutional government among the four branches: the legislature, the executive, the judiciary and the independent commissions.
Sri Lanka has a long history of universal franchise and free and fair elections. In 1994 and 2015, this enabled peaceful transitions after prolonged periods of authoritarianism. Yet, on other occasions, elections have produced super-parliamentary majorities, under the FPP system in 1970 and 1977, and under the proportional representation system in 2020, that have paved the way for partisan constitution-making and constitutional authoritarianism.
The 19th amendment raised hopes that constitutions could be put beyond the reach of petty politics. This has proved to be wishful thinking. Barring 2001 and 2015, the political leadership has been unable to cross party lines and create a constitution that was inclusive and garnered support across the country’s ethno-religious identities. The competition for political power remains intense and political actors have not hesitated to mobilize ethno-religious identities and the constitution as tools to secure political power.
Courts play a role as defenders of constitutional democracy and, as the Sri Lankan experience shows, in the absence of a fully co-equal judicial branch democracy is at risk. This failure to generate a co-equal branch is the result of a flaw in Sri Lanka’s constitutional-design and the result of political attacks on the judiciary.
In a multi-religious and multi-ethnic society, the goal of constitution-making should be to build consensus, create a balanced government, and develop points of accommodation amongst and between different social groups. Constitution-making that is partisan and unprincipled, and serves only the interests of the regime in power, is a recipe for disaster. This recipe unfolded in Sri Lanka when it had to face two armed insurrections, by Tamil and Sinhalese extremists. Both insurrections caused tremendous loss to life, social relationships, and the economy.
The manipulation of constitutions has helped political elites retain power at the expense of democracy and social cohesion. Sri Lanka did experience a constitutional moment, in 2015, when political parties of different hues came together to pass the 19th amendment, which created a balanced form of constitutional government. The issue of power-sharing was not pursued by Tamil parties and this enabled a building of consensus across the political spectrum. While that brief ‘democratic-spring’ generated a tolerant political culture and restored institutional independence, it did not deliver on its many promises and got embroiled in its internal power struggles that resulted in an electoral backlash. This balanced scheme of constitutional government has now been jettisoned in 2020 for a return to hyper-presidentialism by another exercise in partisan constitution-making that has heightened social divisions and ethnic polarization.
Mario Gomez is the Executive Director at the International Centre for Ethnic Studies, an independent think-tank in Sri Lanka. He has worked in academia, human rights, and conflict transformation.
Recent and forthcoming publications include ‘Advancing Economic and Social Rights through National Human Rights Institutions’, ‘Prosecuting Religious Violence in Sri Lanka’, ‘The Right to Information and Transformative Development Outcomes’, ‘The Courts Respond to Executive Tyranny in Sri Lanka’, ‘The Politics of Dealing with the Past in Deeply Divided Sri Lanka’, ‘Constitutionalizing Economic and Social Rights in Sri Lanka’ (Co-author), ‘Keeping Rights Alive: Reform and Reconciliation in Post-War Sri Lanka’, ‘The Death Penalty in Sri Lanka: Hanging by a Thread’, ‘Constitutional Change and Institutional Resilience in Sri Lanka’, ‘Cutting a New Edge: Mixing Writs with Rights in Sri Lanka’, and ‘Institutional Resilience and Political Transitions in Sri Lanka and Beyond’(Co-author).