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Constitutional Reforms in Sri Lanka – More Drift?

Asanga Welikala

To cite this article: Asanga Welikala (2019) Constitutional Reforms in Sri Lanka – More Drift?, The Round Table, 108:6, 605-612, DOI: 10.1080/00358533.2019.1687964

To link to this article: https://doi.org/10.1080/00358533.2019.1687964

Published online: 09 Dec 2019.

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INTRODUCTION

Constitutional Reforms in Sri Lanka – More Drift? Asanga Welikala

School of Law, University of Edinburgh, Edinburgh, UK

On 8 January 2015, one of the more momentous changes of government took place in Sri Lanka when Maithripala Sirisena, the candidate of the common opposition, defeated President Mahinda Rajapaksa at a presidential election. In May 2009, Rajapaksa had won the war against the armed secessionist Liberation Tigers of Tamil Eelam (LTTE), an achievement that had eluded all previous presidents. In the aftermath of the war, Rajapaksa used the resulting popularity to not only win a series of elections but also to concentrate power in himself and his family. He introduced the Eighteenth Amendment to the Constitution in 2010, which removed significant restraints on presidential power and removed the two-term limit on the office. For the first time in Sri Lanka, he also impeached Chief Justice Shirani Bandaranayake and had her replaced with a close legal advisor. The Rajapaksa regime’s governing style and ideology were informed by major- itarian ethnic chauvinism, a violent intolerance of dissent, and large-scale corruption and waste caused by a family-centred coterie of actors within nationalist politics and business. Due to this increasing authoritarianism and corruption, Rajapaksa’s undoubted popu- larity began to wane by 2014.

Around this time, the opposition to the Rajapaksa regime began to coalesce around a loose conglomeration of political parties, trade unions, and civil society organisations called the National Movement for Social Justice (NMSJ), whose figurehead was a charismatic senior Buddhist monk, the Ven. Maduluwawe Sobhitha Thera. This move- ment was eventually successful in building the broadest electoral coalition ever assembled against an incumbent President, around three propositions: (a) that all conceivable political and civil society forces must be united in opposition to the regime; (b) that the force of this unity must be channelled into a single presidential candidate against Rajapaksa; and (c) that the substantive platform of this coalition must be almost entirely, if not exclusively, on constitutional reforms to foster good governance in general, and abolish the executive presidential system in particular. In the last quarter of 2014, it became clear that this was a message that resonated with an electorate tiring of the Rajapaksa regime’s excesses, and it was given a major fillip whenMaithripala Sirisena, then the general secretary of Rajapaksa’s party, defected to become the common opposition candidate.

When Sirisena assumed the office of President, he appointed Ranil Wickremesinghe, then the Leader of the Opposition as the Prime Minister of a minority government. The Parliament elected in 2010 continued with a pro-Rajapaksa majority, although someMPs in the party had defected with Sirisena and joined the minority government as ministers. The Sirisena-Wickremesinghe government then began to implement their 100-day

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THE ROUND TABLE 2019, VOL. 108, NO. 6, 605–612 https://doi.org/10.1080/00358533.2019.1687964

© 2019 The Round Table Ltd

reform programme, the centrepiece of which was to promulgate a constitutional amend- ment to curtail the powers of, or abolish outright, the executive presidency. The original draft bill embodying what became the Nineteenth Amendment to the Constitution envisaged abolition, or rather a transformation of the presidential into a cabinet execu- tive, by the simple device of requiring the President to always act on the advice of the Prime Minister. There was however no parliamentary consensus on this, or even con- sensus within the reform coalition. The Supreme Court also held that such a change would require a referendum in addition to a two-thirds majority in Parliament. These two factors impelled the government to present a more modest bill, which, nevertheless, represented the most significant pruning of presidential powers since the 1978 Constitution was introduced.

The Nineteenth Amendment was enacted in May 2015 by a two-thirds majority (which necessarily included Rajapaksa loyalists), restructured the presidency by empow- ering the Prime Minister within the political executive, by empowering Parliament against the executive, by enabling a limited but significant avenue of judicial review over official presidential acts, and by depoliticising appointments to key state offices and services through the restoration of the Constitutional Council and revitalising the independent oversight commissions for the public service, police, the judiciary, elections, human rights, and bribery and corruption.

The constitutional position of the Prime Minister within the executive has been strengthened by removing the power of dismissal from the President, and subjecting the Prime Minister only to the confidence of Parliament. Other ministers may also only be dismissed by the President on the advice of the Prime Minister. Similarly, the President cannot dissolve Parliament during all but the last six months of its five-year term, except through a resolution passed by a two-thirds majority by Parliament itself. Official acts of the President are also now susceptible to the fundamental rights jurisdic- tion of the Supreme Court. The Constitutional Council, chaired by the Speaker and consisting of MPs and civil society representatives, constrains the President to act on its recommendations, or on its approval, in making key appointments such as judges of the superior courts, the Inspector General of Police, and the Attorney General, and the independent commissions. Crucially, the Nineteenth Amendment also reintroduced the two-term limit on the presidency and shortened the term of both the President and Parliament from six to five years. In these ways, the hyper-presidential model under Rajapaksa’s Eighteenth Amendment has been substantially pruned back to a much more democratic model of ‘premier-presidential’ semi-presidentialism. In addition to these changes at the constitutional level, the reform government also enacted a Right to Information Act (2016) and changed the Standing Orders of Parliament to reform and strengthen the parliamentary committee system in favour of scrutiny and accountability.

However, both since the Nineteenth Amendment did not go far enough in wholly abolishing presidentialism and because many other constitutional changes to address especially minority demands had been neglected after the war, the reform coalition under Prime Minister Wickremesinghe asked for a fresh mandate for an entirely new constitu- tion at the parliamentary elections of August 2015. His United National Front for Good Governance won this mandate through a majority of seats at the election, and in January 2016, the government successfully moved a resolution to establish a Committee of the Whole House named the ‘Constitutional Assembly’, and for

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a Steering Committee chaired by the Prime Minister and comprising all parliamentary party leaders and other senior MPs for the management of its business. Parliament when negotiating the content and debating the merits of a new constitution would sit as the Constitutional Assembly, but once a new constitution bill was finalised, Parliament retained the legal authority to pass it into law prior to a referendum, which was required to validate a new constitution.

This process commenced with reasonable vigour, with the Constitutional Assembly dividing itself into subcommittees to go into various substantive areas, and the Steering Committee directly dealing with some of themore contentious matters. For the first time in Sri Lanka, a public consultation exercise was conducted even though it was fairly limited in terms of both time and reach. But due to other issues pressing upon the political agenda, the process began losing momentum from around early 2017, and while the Steering Committee continued its discussions, public interest in constitutional reform began to wane. The government seemed to have no appreciation of the importance of communica- tion with the public, let alone have any plan for continuous public engagement, and very soon the high expectations of 2015 became a thing of the past. Around this time, the personal and political relationship between the President and Prime Minister – crucial to the successful operation of the semi-presidential executive and even more so for a government of national unity attempting to introduce a new constitution – began to decline. There were multiple causes for this breakdown both proximate and systemic, but ultimately it can be boiled down to the intense, zero-sum pressure of inter-party competi- tion in the culture of Sri Lankan politics that makes cooperation in the national interest impossible, and has undone previous attempts at cohabitation.

When the first state-wide elections since 2015, for local government bodies, were held in February 2018, the two main parties in the ruling coalition led respectively by the President and Prime Minister campaigned against each other, and were duly punished by the electorate. The main beneficiary of the split was former President Rajapaksa, whose new political party pushed the PrimeMinister’s and the President’s parties into second and third place, respectively. The electoral admonition was evidently not sufficient incentive for a recommitment to the reform agenda and renewal of the coalition. Instead, the bickering continued with the President even engineering, behind the scenes, a no-confidence vote in the Prime Minister in April 2018, which the latter however survived.

But even the continuation of this very public feud – and in parallel, the slow death of the constitutional reform process – did not prepare anyone for what happened next. The country was plunged into a major constitutional crisis when on the night of 26 October 2018, President Sirisena without warning dismissed Wickremesinghe and replaced him with Mahinda Rajapaksa as Prime Minister. This was prima facie uncon- stitutional in that Wickremesinghe had not lost the confidence of Parliament, and hence could not be removed, after the changes made by the Nineteenth Amendment. After trying and failing to assemble a parliamentary majority for Rajapaksa, the President also purported to dissolve Parliament on 9 November, an act that was again prime facie unconstitutional post-Nineteenth Amendment, given that it occurred during a period within which Parliament could not be dissolved except with a resolution passed by a two- thirds majority. The crisis eventually ended in December after Parliament consistently refused to give confidence for Rajapaksa, and both the Court of Appeal and the Supreme Court held the presidential acts to be unconstitutional. The abridgement of presidential

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powers to act unilaterally and autonomously of the other branches by the Nineteenth Amendment framework thus passed its first serious stress when the strengthened checks and balances came into effect during the crisis.

An attempt at democratic backsliding therefore ended with a demonstration of institu- tional resilience. The performance of constitutional restraints and public institutions, and the spontaneous mobilisation of public outcry in defence of constitutional government, revealed the deeper roots of Asia’s oldest democracy which are otherwise well concealed behind the ethnic virulence and venality of Sri Lankan political culture. Nevertheless, deeper questions about both political culture and the surviving remnants of presidential authoritarianism remain that militate against an over-sanguine assessment of the denoue- ment of the crisis as an unvarnished triumph for constitutional democracy. In particular, the outcome of the crisis seems to have provided no impetus whatsoever for a kick-start of the stalled reform process. Preoccupied with strategic and tactical manoeuvring in an election year, the political elite has all but abandoned further reforms, at least until the next presidential election, due by the end of 2019, is over. We are thus in a position to take stock of the reforms process since 2015; its achievements, its failures, and what its conduct tells us about the prospects for further reform in the future. The articles in this Special Issue undertake this task by analysing the written documents produced by the process, in particular the report of the Public Representations Committee (2016), the reports of the subcommittees of the Constitutional Assembly (2016), and the Interim Report of the Steering Committee (2017).

Gehan Gunatilleke addresses the rallying cry of yahapalanaya or good governance that underpinned the mandate for change in the January 2015 presidential election, and resulting institutional framework for delivering that objective that was put in place by the Nineteenth Amendment. He assesses the challenge of realising the good governance aims of the institutional reforms in the context of the countervailing pressures of the major- itarian political culture. In what was the other major campaign slogan of the last presidential election, Kalana Senaratne analyses the debate over the reform, abolition, or retention of the executive presidential system of government. As he rightly points out in his critical evaluation of the opposing viewpoints, this is a debate as old as the 1978 presidential constitution itself, and abolition is not simply a question of institutional preference but a choice that has to be made in the context of a broader range of variables, including a realistic sense of the viability of parliamentary government in a political culture such as Sri Lanka’s.

The constitutional status of Buddhism and the unitary self-description of the state are two aspects of constitutional reform in Sri Lanka that are as much about highly emotive symbols as they are about constitutional design and norms. Ayesha Wijayalath analyses the debates in the Constitutional Assembly and the proposals of the Steering Committee about the status of Buddhism in the light of the longer pedigree of this debate since independence. Sanjayan Rajasingham analyses the proposals in respect of replacing, reformulating, or retaining the constitutional classification of the state, which is again a constitutional controversy that has raged since well before independence and was at the root of the protracted armed conflict. He also draws attention to an interesting but ambivalent 2017 judgment of the Supreme Court concerning the principles of internal and external self-determination, sovereignty, territorial integrity, and federalism.

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The proposals concerning a future bill of rights and its enforcement were some of the most extensive – and indeed relatively uncontentious – in the recent process, although as Dinesha Samararatne points out, the public debate about them was extremely limited, imbalanced because some issues generated much controversy while others were wholly ignored, and in no sense denoted the broad and meaningful social discourse about rights and duties that is needed if the bill of rights is to serve its transformational purpose. By contrast, the enactment of the Right to Information Act was one of the reform govern- ment’s signal successes. In Pasan Jayasinghe’s analysis, the Act’s design shows a high degree of conformity with international standards, but the challenges to the actual realisation of a revolution in information sharing still remain, and the Act itself may not be enough to change Sri Lanka’s entrenched culture of governmental secrecy.

In the last two articles, the Special Issue considers two policy concerns that can be described as relative failures. Sanjana Hattotuwa’s article on the relationship between social media and the politics of constitutional reform not only shines a light on a thoroughly under-researched subject in Sri Lankan scholarship, but also illuminates how the govern- ment, in undertaking constitutional reform, has consistently failed to understand the challenge of political communication in the social media age within a society with an electorally significant proportion of the population under the age of thirty-five. Likewise, Isabelle Lassée gives a comprehensive account of the importance of transitional justice in Sri Lanka’s post-war society, which ought to have been the parallel process to constitutional reform, but which was side-lined, and eventually virtually abandoned. This was due to a dichotomisation between the two processes which ought to have been conceived in complementary terms, yet primary importance was given to the latter.

Taken together, these articles offer a panoramic view of Sri Lanka’s latest attempt at constitutional reform. No claims are made to either finality or comprehensiveness, but they will give the reader a wealth of empirical information contextualised with authority by a group of experts who are in daily touch with the vagaries of political reform in Sri Lanka.

Postscript

Shortly after most of the materials for this special issue were ready in April 2019, Sri Lanka was hit with one of the worst terror attacks in its history, the first since the end of the war a decade ago in 2009, and the first with avowedly Islamist motives. On Easter Sunday, terrorists belonging to a hitherto little-known local organisation called the National Thowheeth Jama’ath (NTJ), with purported links to the Islamic State of Iraq and the Levant (ISIL), simultaneously suicide bombed three Catholic churches in Colombo, Negombo, and Batticaloa, and three upmarket hotels in Colombo. The even- tual death toll was over 250 killed and many more injured. The attacks caused maximum immediate impact by targeting religious observances and tourism, post-war Sri Lanka’s best performing economic sector.In a deeper sense, the traumatic event was underscored not only by the novelty of Islamist terrorism and the grim throwback to the terror of the wartime era, but also by a stark and sudden revelation of the institutional fragility of the Sri Lankan state. In other words, this was a terrorist attack with extraordinary constitu- tional implications. These implications can be divided into two categories: (a) the institutional weaknesses of state structures stemming from a political culture of govern- ance that is not fit for purpose in a constitutional democracy; and (b) the instability of the

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political settlement of communal pluralism underpinning the constitutional state when confronted with the severe challenge of ethno-religious terrorism. Any tendency to see the conclusion of the constitutional coup crisis of 2018 (described above) as an indicator of institutional resilience and a step of progress in Sri Lankan democratic development has been tempered if not undermined by these constitutional consequences of the Easter Sunday attacks.

What emerged within hours of the attacks was a picture of astonishing incompetence and negligence on the part of those vested with the responsibility for public safety and national security. The intelligence services and police appeared to have been working at cross purposes, even though the perpetrators, their violent ideology and intentions, and their organisational networks had been known to the authorities for years previously. There had been many indications of impending attacks, including through specific intelli- gence sharing from foreign and neighbouring governments. The ultimate cause of the dysfunction, however, was rooted in the political dynamics that had led to the coup crisis in 2018 and the changes to internal procedures that resulted from it. As described above, the breakdown in the cohabitation relationship between the President and the Prime Minister led to the President’s attempted constitutional coup in October 2018. At this time, the President monopolised control over the National Security Council (NSC), the key coordi- nating institution for anti-terrorismmeasures. The President, ex officio the Commander-in -Chief, is also the Minister of Defence as well as the Minister of Law and Order, and as such, all the armed forces, auxiliary forces, civil and military intelligence services, and the Police Department come within his purview. On Sunday morning when the attack took place, the President was overseas on a private visit, without having appointed acting ministers to any of the relevant ministries, or indeed an Officer Administering the Government. It has also since emerged that the Prime Minister and the Minister of State for Defence had been excluded from NSC meetings since October, as well as the Inspector General of Police. None of them, however, saw it fit to object to this unusual situation, until the attacks took place. The Permanent Secretary to theMinistry of Defence and the Chief of the State Intelligence Service, serving in the period before the attacks, have publicly attested to the erratic nature of NSC meetings and its functioning according to presidential whims rather than any institutionalised procedures.

Further embarrassing revelations are no doubt in the offing, as a Select Committee of Parliament has commenced hearings into the attacks and the institutional failures that led to them. Oblivious to any appearance of constitutional impropriety, the President has openly attempted to stop or disrupt the parliamentary enquiry. MPs of the President’s party have refused to join the Select Committee, live telecasting of the hearings was halted on state media, the President has requested the Speaker to stop the parliamentary process on the grounds of prejudice to ongoing judicial proceedings, and summoned an emer- gency Cabinet to threaten non-cooperation in government if the select committee hearings continue. Fortunately, both Speaker and Cabinet have so far refused to comply with these inappropriate presidential interventions.1

In the meantime, a state of emergency was declared on 23 April, and a harsh set of emergency regulations promulgated the following day. Emergency regulations are execu- tive-made law which override all other law except the constitution, and Sri Lanka’s long experience of conflict and emergency rule has pushed the boundaries of what is con- stitutionally permissible. In the present set of regulations, the scope of offences and

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penalties, the extraordinary powers adversely affecting personal liberty and property, the potential for the imposition of undue and illegitimate restrictions on the freedoms of expression and assembly, the granting of police powers to the military, and the absence of effective oversight mechanisms, all give serious cause for concern. Moreover, there are some signs that the public failures of the civilian political authorities and the police may embolden the armed forces and the intelligence services, still at wartime strengths and unreformed for a post-war peacetime role, to take a more active role in governance in the name of combating the threat of international terrorism.

While there were no immediate communal clashes in the aftermath of the attacks, the ensuing weeks saw a significant rise in Islamophobia, including increasingly virulent rhetoric by Sinhala-Buddhist nationalists and monks, as well as orchestrated attacks by vigilante groups on Muslims civilians and their property. The record of the authorities in this regard has been mixed at best, with evidence of police collusion with mobs on some occasions, although the localised violence has generally been contained without further escalation. In developments that are historically very similar to the deterioration of ethnic relations between the Sinhalese and Tamils that led to civil war, Sinhala-Buddhist nationalists now seem to regard the Muslims as the new minoritarian enemy within, and possibly more treacherous than Tamils given the global presence of Muslims, and drawing upon Islamophobic and anti-Muslim tropes gaining currency in many countries in the region such as India and Myanmar and further afield.

In any case, the advent of Islamist terrorism, coupled with the political vacuum created by a dysfunctional government, has given a new lease of life to the politicised Buddhist clergy to engage in anti-minority nationalist activism. A nationalist monk who is also a Member of Parliament commenced a fast-unto-death demanding the removal of a Muslim Cabinet Minister and two Muslim provincial governors. While some legitimate concerns have been raised about these Muslim politicians’ connections with the Easter Sunday terrorists and the NTJ, these are issues to be addressed through the normal processes of law enforcement and justice. In response, all Muslimministers of all parties resigned from the government, stating that they were doing so to ensure a proper investigation. Notwithstanding the stated reasons, it is clear that the collective response was meant as an act of solidarity against the weeks of mob attacks, fear, and banal harassment of ordinary Muslims in day-to-day life. Similar events of communal division and enmity preceded the previous phase of armed conflict in Sri Lanka, and it remains to be seen if the political framework of inter-community relations that underpins constitutional order is robust enough, in spite of its manifest weaknesses, to withstand the significant pressures that will be put on it in coming weeks and months.

All of these developments point to a change of government in the next presidential election scheduled for December 2019. While the roundly discredited President will probably see the end of his political career, the Prime Minister’s performance has also been far short of satisfactory.2 The government was not able to deliver on its promise of a new constitution, and even the not-insignificant achievements it has managed have not been presented as such due to poor communications. The economy never got off the ground, the reform coalition’s public bickering has discredited the very idea of constitu- tional reformism, and after the Easter Sunday crisis, the public mood seems increasingly to be drifting in the direction of a presidential strongman who can create order out of political chaos and deliver development out of economic stasis. Sadly, the upshot of such a turn in Sri Lankan politics may well turn out to be democratic regression, and a rollback

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of the constitutional reforms of the past 5 years that were so necessary for a consolidation of constitutional democracy in the country.

Notes

1. Just before this Special Issue has been scheduled to go to press, in late-October 2019, the Select Committee published its report together with two volumes of minutes of evidence. These can be found at: https://www.parliament.lk/uploads/comreports/sc-april-attacks-report-en.pdf; https:// www.parliament.lk/uploads/comreports/sc-april-attacks-report-evidence-vol1.pdf; and https:// www.parliament.lk/uploads/comreports/sc-april-attacks-report-evidence-vol2.pdf. The report is hard-hitting and strongly criticises the state intelligence services and the President for multiple failures and incompetent acts, as well as the PrimeMinister and theMinister of State for Defence for omissions. It suggests that the failures were such as to lead to an impression that certain elements within the intelligence apparatus colluded in allowing the attacks to go ahead so as to create panic and help in changing the government in the forthcoming presidential election. It also recommends institutional reform of the intelligence sector, in particular putting the NSC on a statutory footing, and introducing an independent National Security Advisor.

2. The presidential election is now scheduled for 16 November 2019. Neither the President nor the Prime Minister is the candidate of their respective parties. The leading contenders are Gotabhaya Rajapaksa of the Sri Lanka Podujana Party (led by former President Mahinda Rajapaksa) and Sajith Premadasa of the United National Party (which is still led by Prime Minister Wickremesinghe), whilst the Janatha Vimukthi Peramuna (JVP) is fielding its leader, Anura Kumara Dissanayake. Constitutional reform is not a central issue as it was in the 2015 presidential election. Neither of the two leading candidates is committed to the abolition of presidentialism, but his past record as well as his prominently national security based campaign suggests that a Gotabhaya Rajapapaksa presidency could well be one of executive aggrandisement.

ORCID

Asanga Welikala http://orcid.org/0000-0002-4624-1227

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