By Rajan Philips –

The die is cast yet again over a constitutional amendment in Sri Lanka. But the latest of the amendments – the 22^nd of them in 48 years – comes in the midst of a unique set of political circumstances and may entail equally unique consequences. The first 16 of the amendments were done and dusted by December 1988, within ten years of the life of the current constitution, and all of them during the decade long tenure of President JR Jayewardene the architect and creator of the 1978 Constitution. Obviously, none of the 16 amendments had a reformist purpose. The most consequential as well as controversial of them, the 13^th Amendment, was adopted primarily for devolving power and not for reforming its applications. All the other fifteen amendments were variously expedient, partisan and ad hominem. And all 16 amendments were enacted in the 20^th century, if not the old millennium.

Reform Amendments

The first reformist amendment came in the 21^st century with the 17^th Amendment, enacted on 2^nd October 2001, during the second term of President Chandrika Kumaratunga. She led the People’s Alliance to defeat the UNP after 17 years and became Prime Minister in August 1994. Kumaratunga was elected President in November 1994, campaigning to abolish the presidency and winning the largest landslide victory in presidential election history with 62% of the vote. President Kumaratunga did present a Constitutional Bill to parliament in August 2020 that would have abolished the system of ‘elected executive presidency’, but it literally ran into a fiery sabotage by then Opposition Leader Ranil Wickremsinghe and his UNP MPs, the TULF was ordered by the LTTE to abstain from voting and the bill was withdrawn and not voted on. The 17^th Amendment in 2021 was passed to settle on the political second best – to curtail presidential powers without abolishing the presidency.

The four amendments that came after 17A were all in the reformist genre, but with some crucial differences. The purpose of 18A enacted on 9^th September 2010, by Mahinda Rajapaksa was to vitiate the reformist gains of 17A; it went further to end the two-term limit on the presidency. The 19^th Amendment in 2015 was the only consequential achievement of the yahapalana government and it restored the two-term limit and reversed other illiberal provisions of its predecessor – 18A.

Then came Gotabaya Rajapaksa and his puppeteers who masterminded the 20^th Amendment to dilute the provisions of its predecessor. The cycle continued under Ranil Wickremesinghe with the enactment of the 21^st Amendment, reversing 20A and partially restoring 19A.Now we are facing the 22^nd Amendment which is not at all reformist but aligns more with the old 20^th century amendments in being both expedient and ad hominem.

The current situation calls for a comparison between President Kumaratunga and President Dissanayake given their strong commitment to abolish the elected executive presidency. First, only Kumaratunga and Dissanayake made sincere campaign commitments to abolish the elected executive presidency. Mahinda Rajapaksa and Ranil Wickremesinghe were never serious about abolishing the presidency. Maithripala Sirisena’s singular claim is that 19A came into being because of his executive persistence but he never embarked on abolishing the presidency. He abrogated his only achievement by staging the abortive constitutional coup in October 2018. Its intent and execution were comical but its unexpected consequences for national security were disastrous, and it all blew up into a day of horrors on Easter Sunday in 2019. The political beneficiary of the 2019 Easter Sunday was Gotabaya Rajapaksa. His 20^th Amendment was all done for him and of him by others. He was clueless enough to even get a committee set up to draft a whole new constitution.

The second comparison or contrast between CBK and AKD is that the former won a landslide presidential victory in 1994 but her seats in Parliament were limited by proportionality in the parliamentary election earlier that year. Her seat count did not reflect the charismatic sweep of her campaign. In contrast, President Dissanayake won the presidency in September 2024, on the second count after getting 42% of the vote in the first count and 56% in the second count. Yet, within two months in November, he led the NPP to achieve a stunning sweep in the parliamentary elections. In the upshot, President Kumaratunga did not have the requisite two-thirds majority in parliament to push through constitutional changes, which President Dissanayake now has in abundance.

Third, President Kumaratunga first attempted to abolish the elected executive presidency and reform the constitution with a comprehensive Constitutional Bill, and took the 17A route only after her bill could not make any headway in parliament. President Dissanayake, on the other hand, has been consistently promising to abolish executive presidency and restore parliamentary supremacy. However, there is a growing mismatch between promises and products. Instead, the government has brought forth the 22^nd Amendment out of no where. In all the pros and cons about it, those who are opposing the amendment are all seeing the whole judicial sky falling apart, while all in the government are insisting that the amendment will magically help bring down the huge backlog of cases that are overwhelming the court system.

Reform Frustration

Put simply, those who are against the amendment are overselling their case while the government is making light of the slow wasting of its political capital. What I would like to stress here are the implications of this amendment for the principal constitutional reform that the NPP government remains committed to but does not quite seem to know – how to. In one respect, the government has already lost the initiative. That is, after being in office for nearly two years the government is yet to kickstart any kind of process for achieving constitutional reform.         

There have been comments by well wishers of constitutional reform that to be effective and successful the NPP government should have fully launched the constitutional reform process within six months of its victory in November 2024. By that measure, very soon the process would be in delay by two years. Contrast this with the making of the 1972 and 1978 constitutions.

The United Front of the SLFP, the LSSP and the CP won the general election in a landslide on 27 May 1970, and within two months, on 19 July 1970, Dr. Colvin R de Silva was ushering in the Constituent Assembly at the Navarngahala to set about making the new constitution. The new constitution itself was enacted and adopted and the Dominion of Ceylon became the Republic of Sri Lanka on 22 May 1972, within two years of the United Front election victory. The new constitution would have come an year sooner but for the JVP’s April 1971 insurrection and the chaotic delays it caused.      

The making of the 1978 constitution was even swifter. JR Jayewardene led the UNP to an even bigger landslide victory than that of the UF on 21 July 1977. Working within the amending procedure JRJ navigated the Second Amendment to the 1972 Constitution. The Amendment was passed on 4 October 1977 to create the executive presidential system. JRJ himself became the First Executive President four months later on independence day, on 4 February 1978. He then used the Parliamentary Select Committee process to draft, enact and adopt the 1978 Constitution on 31 August 1978 which came into operation on the auspicious day of 7 September 1978.

By the timelines of the 1972 and the 1978 constitutions, the NPP government is way behind in fulfilling the constitutional reform task. The making of the two republican constitutions benefited from the two thirds majorities the two governments had in parliament, and also from the strong and very capable personalities of Colvin R de Silva and JR Jayewardene who respectively spearheaded the making of the 1972 and 1978 constitutions.

To her credit, Chandrika Kumaratunga did not waste time in preparing a Constitutional Bill and she got the work done by engaging teams of capable experts to complete the task. But her efforts were stymied by her not having a two-thirds majority in parliament; as well as by the obstructive non-co-operation of Ranil Wickremesinghe and the UNP, on the one hand, and the LTTE’s fatwa against the TULF to stop it from co-operating with the government, on the other.

Seen in this historical light, the NPP’s constitutional inaction so far, after nearly two years in office, is quite inexplicable. The concern I am trying to highlight here is that the government’s 22A misadventure is going to be a significant drag on the main constitution reform process. The government’s political calculations would appear to be based on its parliamentary majority and its assessment of the public support in the country. Both are enough for the government to prevail in the political battle over the 22^nd Amendment. But what the government does not seem to be appreciating is that this battle is causing it to waste precious political capital in intangible ways and for no tangible returns.

The 22^nd Amendment is a sign of the NPP government losing its innocence in office. Although it is ridiculed for its inexperience and its L-board competence, these barbs are also indicative of the government’s lack of experience and competence to be corrupt and cunning. The amendment is also a sign of the government learning to be intransigent and inflexible. The President’s showdown with the BASL would certainly have enthused the NPP supporters. On the other hand, the government could have enhanced its image among its non-supporters by choosing to engage the BASL and others from the outset. The government could have at least met with the BASL before gazetting the 22A bill and presenting it to parliament. The President and the government would have looked generous and magnanimous instead of looking to be stubborn and difficult.

There are lessons from the past even though the JVP-NPP always decries the entire past except its own. The United Front government tarnished its image early on by some precipitous actions, notably – the abolition of the Senate ahead of its own new constitution; the state’s takeover of the Lake House; and the dismantling of the first Constitutional Court created by the 1972 constitution and headed by the redoubtable Justice TS Fernando. These and others eroded the public image of the government and when economic difficulties inexorably mounted, the government first imploded from within and then had all its parts utterly rejected by the people.

The NPP may fancy that it is not a coalition, but then it can and must look to the right and see what has befallen the once mighty and unitary UNP.  President Jayewardene tailored the 1978 Constitution to constitutionally keep extending the UNP’s tenure and he succeeded until he retired from the presidency. No sooner, not only the government but also the party imploded. Not along party lines like the United Front, but over individual presidential ambitions. The coveting curse of the presidency – you might say. And after Chandrika Kumaratunga defeated it in 1994, the UNP has been in perpetual political wilderness. Its belated offshoot, the SJB, has become a permanent also-ran like the long-permanent UNP leader it (the SJB) broke away from.    

The NPP may be different from both the United Front and the UNP. It may electorally keep succeeding as a government unlike either the UF or the UNP. It could always claim that it will never become  a corrupt political machine like the Rajapaksa enterprise dressed up as a beacon of pseudo nationalism. But apart from being cocky about its own politics, the question the NPP must ask itself is how on earth it is going to achieve constitutional reform including the abolishing of the elected-executive presidency in what remains of its current term in office.

Going by past experience, in order to succeed it must launch the reform initiative at least in the next six months, if not before the end of this year. Something it has not been able to do for nearly two years. It is in this light that the 22^nd Amendment appears to be an unnecessary and precipitous distraction from the main reform task at hand. By persisting to score a short term political win, the government may be sacrificing the longer term goal of constitutional reform. There is still time for the government to make sure that the 22^nd Amendment does not become the NPP’s only constitutional achievement.           

Crying Judicial Wolf

The other side to the current debate is the scaremongering that the 22^nd Amendment will end not only judicial independence but also Sri Lanka’s democracy. If there is one useful political lesson from the Trump experience in America is that people got tired when Trump’s opponents kept calling Trump an existential threat to American democracy. The American voter got fed up with such exaggerations and gave Trump the largest popular vote majority registered by a Republican president.

Trump has been the most undemocratic president in US history, but American democracy is no where near extinction the way his detractors have been crying wolf for a whole decade. Despite all his excesses, the system has significantly vitiated his effectiveness. He is now a bigger lame duck president than any of his recent predecessors and is expected to grow even weaker after the upcoming midterm elections in November. In two years Trump will reach his term limit and will be totally gone. While it will take some time to recover from the damages he has done there is no threat to the continuance of constitutional democracy in America.

The most practical pushback against Trump has come from the judiciary especially in the courts of first instance. Even the Supreme Court that includes three of nominees has not been subservient to Trump. Where the Court has ruled seemingly favourably to Trump in such areas as culture and the extent of executive power, these rulings are not in deference to Trump but they in alignment with conservative positions going back to the time of President Reagan. Four of the Justices have served in past Republican administrations. The Court is certainly ideological but its independence is not compromised. As the late Mohan Kumaramangalam famously said decades ago in the Indian Lok Sabha, “there is no animal called a non-political judge.” But that is not a slur on judicial independence.

Sri Lanka’s own constitutional and judicial histories demonstrate that constitutional excesses exhaust themselves over time and judicial appointees are not necessarily beholden to their appointers. President Truman has said as much in the US. In his recent article, Dr. Nihal Jayawickrema listed the Sri Lankan Chief Justices whose appointments were not only political but were also personal. At least until the present NPP government, most high post appointments have also been feudal.

Sri Lanka’s justices have stood up to those who appointed them when it mattered and where it was needed. Perhaps the most standout example is that of Chief Justice Neville Samarakoon, who had been President Jayewardene’s personal lawyer before he was appointed as Chief Justice in 1977. As Chief Justice, Mr. Samarakoon proved to be quite sturdy in his independence to the point of being forced to face an impeachment farce before his retirement.

What is also lost in the current clamour for a referendum on the 22^nd Amendment is the irony of the genesis of referendum as a constitutional instrument in Sri Lanka and its only application to-date to annul an otherwise due parliamentary election in 1982. What is conveniently forgotten is that President Jayewardene established the presidential system in Sri Lanka through a constitutional amendment passed in parliament by a pliant majority of UNP MPs whose undated letters of resignation were in the President’s drawer. There was no referendum about it, but a basic structure rationale has since been evoked to justify the need for a referendum to abolish the presidency. A referendum is now purportedly required to determine the retirement ages of judges. Put another way, if the NPP government were to hold and succeed in a potential referendum – will it render the 22^nd Amendment compatible with judicial independence?