By Lionel Bopage –
Sri Lanka is already deeply enmeshed with a crony economic system. As a consequence, businesses thrive not by managing risks, but by returns accumulated through nexus between the business and political classes. This is often achieved by state intervention rather than competition. The state exercises monopolist control over resources and money, that is made mostly through profiteering arrangements such as rent seeking. Entrepreneurship becomes stifled with hardly any value-adding taking place. This situation has spilled over into government, the politics, and the media distorting and crippling the economy. Society is affected to such an extent that benefits of most services provided to the general public disappear into the pockets of the corrupt.
During the presidential election and the general elections, national security was the top priority of the majority southern polity. This was mainly caused by the fear psychosis the Easter Sunday attacks provoked. A strong government and a strong ruler were the other demands that they thought would address the prevailing socio-economic and political issues. The electorate supported these demands mainly due to the many depressing failures of the previous regime. Their weak leadership that compromised on law and order, corruption, particularly led by the bond scam, ethno-nationalistic and religio-fundamentalist attacks and many other socio-economic factors contributed to this situation.
It was in this environment, the new government received almost a two-thirds majority to change the constitution for achieving a strong, executive based national-security state. In seeking a two-thirds majority, the Sri Lanka Podujana Peramuna (SLPP) pledged to repeal the 19th Amendment but did not clarify what they would replace it with. The President in his statement to the Parliament confirmed that the 19th Amendment would be repealed as a prelude to enacting a new Constitution. They have already set up a panel to initiate this process. It would be carried out in two stages: first, amending the existing constitution to change or repeal the 19th amendment, perhaps including the 13th Amendment. Secondly, introducing a new constitution.
This constitutional change will be driven by the political and economic needs of the business and political classes that are holding power. Hence, the many concerns about how this process will be driven and how a new constitution as the end product will affect people’s rights as a whole.
Development and Reconciliation
One major concern is whether the state would be made into a ‘presidential monarchy’ where majoritarianism would be taken to new heights to the detriment of the rights of the minority communities, and whether the previous democratic reforms carried out for restricting the powers of the executive, including presidential term limits and accountability would be abolished. Would such changes further aim at removing the checks and balances on presidential powers, rescinding the need to be accountable for their actions and policies, and granting the freedom to build an authoritarian power structure that would promote majoritarian nationalism.
The unitary state the British imposed upon Sri Lanka was a colonial construct, which was later re-introduced into the post-1972 constitutions. Despite the monarchic nature of the pre-colonial Sri Lankan society, the rule of the royalty was neither centralised nor unitary. The Kandyan kingdom allowed substantial devolution at the periphery. Since the adoption of the 1978 Constitution till recently, an overwhelming majority of voters was demanding the total abolition of the executive presidential system that generated the tendency of politicisation of the presidency and centralisation of authority. If the new constitutional reforms are towards further centralisation of authority, then the principal victim would be people’s democratic rights.
Reconciliation through development appears to have become the common mantra chanted by all levels of the new regime. The many experiences gained not only from Sri Lanka, but also from the United States, the supreme economic power and the most developed country in the world, conclusively demonstrate that this mantra does not work in practice. For example, the civil rights movement originated in the fifties and sixties from the struggles for social justice of Black people in America. Their struggle was for gaining equal rights for them under the law. Despite the American Civil War officially abolishing slavery that abolition did not bring an end to the destructive effects of racism and discrimination. That is why by the mid-20th century, Black Americans mobilised themselves along with many white Americans, and began an unprecedented fight for equality that currently continues in the form of Black Lives Matter. The conclusion: Reconciliation is a final outcome that can only be achieved via combining economic development with full recognition of people’s rights.
Devolution of power to the provinces was initiated with Indo-Sri Lanka Accord signed in July 1987. As a result, the 13th Amendment to the 1978 Constitution and the Provincial Councils Act were enacted. The 13th Amendment contributed towards the first practical democratic constitutional mechanism that attempted to politically address the national question. However, it was enacted at the behest of Sri Lanka’s influential neighbour, India. This constitutional mechanism paved the way for creation of provincial councils and devolution of power to the provinces, while enabling the use of Sinhala and Tamil as national languages with English preserved as link language.
However, this constitutional mechanism gave rise to a thorny issue that prevails to date; i.e., the issue of devolution of land, police and financial powers to the provinces. The amended basic law of the land has not been fully implemented despite its enactment. During the last decade, It also became evident that even while holding onto the limited devolutionary powers, the Northern Provincial Council did not utilise the funds it was allocated to, for the benefit of the residents of the province. Some nationalistic MPs in the south demand repealing the 13th Amendment in the hope of totally abolishing provincial councils. As far as I know, their assumption and allegation that provincial councils are white elephants, are yet to be ascertained as fact by research carried out by means of a proper cost-benefit analysis of their performance. On the other hand, what new mechanism would be adopted instead of provincial councils, for addressing the issues of the minority communities? Would that new mechanism be tantamount to asymmetric devolution?
17th, 18th and 19th Amendments
The 17th Amendment was enacted as an anti-dote to the executive presidential system. It led to creating an autonomous institutional mechanism, the Constitutional Council with the intent of freeing the public service from political interference through a review system. It imposed certain restrictions on the arbitrary exercise of executive powers of the president to make key appointments to the higher judiciary and the public service. However, the 18th Amendment made in 2010, bolstered the constitution more towards pre-17th status and moved the executive presidency towards a parochial model of an autocratic presidency. It removed the two-term limit of the President and replaced the Constitutional Council with a Parliamentary Council.
In 2015, the previous yahapalana regime came to power pledging to repeal the 18th Amendment, abolish the executive presidential system and restore a parliamentary form of governance. In power, they enacted the 19th Amendment that repealed the 18th and established a new Constitutional Council. The intent of the new Constitutional Council was also to depoliticize the public service. However, with the compromises the regime had to make, to include more parliamentarians (politicians) in the Council, the aspired intent did not appear to have been realised. The compromises the previous regime had to make was the result of them not even having a simple majority in Parliament.
The aspiration of abolishing the executive presidential system was seriously compromised with the parties such as the JHU and SLFP of the previous coalition opposing it. As the constitutional negotiation process was open and consultative, the original proposal in 19A to make Prime Minister the head of cabinet had to be compromised. It had to be diluted due to the pressure exerted by the Maithripala Sirisena camp and the nationalist lobby, both of whom hold important positions in the current regime. As such, the 19th Amendment could not be anything, but a constitutional compromise made between all the parties that comprised the Constitutional Assembly.
To an extent, the 19th Amendment impeded the propensity of presidency to abuse power and to move towards an authoritarian regime once again. However, 19A removed the president’s power to dissolve parliament arbitrarily. The President was made accountable to parliament and courts. It brought back the two-term limit of the presidency and brought down the duration of parliament and presidency to 5 years from 6 years. Yet, it did not abolish the presidential model of government. During the negotiation process, the scope of the original draft amendment had to be heavily redacted to meet the demands of the SLFP and the Rajapaksa camp. As such, the amended constitution had to remain a hybrid of a presidency with trimmed powers and a bolstered parliamentary system.
Had the original draft been passed, there would not have been two centres of power, the very constitutional issue that the country encountered later on. The breakdown in communication between the main partners of the coalition, the UNP and the SLFP in 2018, brought the constitutional reform process to a dead end. Despite these circumstances, an overwhelming majority of 215 MPs voted for enacting the 19th Amendment. The legislative intent was to curtail the excessive power of the executive branch of the government. As stipulated in it, term limits to the Office of the President were imposed, presidential prerogatives were transferred to Parliament; and independent commissions were established. This provided an environment in which the judiciary could operate independently of the executive and free of political interference. Despite the deficiencies, independent commissions have performed reasonably well in the past.
Two Power Centres
Thus, the 19th Amendment created two power centres in the form of President and Prime Minister, creating a chaotic situation. This was amply demonstrated in 2018, when the SLPP tried to usurp parliamentary power and the prime ministership. Therefore, a need to address this constitutional anomaly exists. However, the intent of the changes the new regime would propose remain yet to be seen. It was the previous Rajapaksa regime that brought and enacted the 18th Amendment. Would the constitutional amendments/changes lead to detrimental consequences to the society as a whole? Would the changes proposed affect the number of terms a President could hold? Would the independent commissions be abolished? The government could argue that its two-thirds mandate allows it to do any changes they wish to make. However, would not that be tantamount to a fascistic sort of an argument?
Due to inability of the President to take decisions on his own without consulting the Prime Minister, the SLPP argued that the 19th Amendment was obstructing development of the country. The 19th Amendment was also blamed for contributing to political instability, ineffective governance, weakening of the state, and endangering national security. This argument held sway within the electorate primarily because the previous regime brought to power was not a government with an assertive, a “Can Do” type of approach. Despite some of the good work it carried out during its limited term, it was a lethargic government in many respects. The electorate’s distaste of this was confirmed during the presidential and parliamentary elections. The power contention between the UNP and the SLFP that commenced in 2018, led to the deluded view that returning the country to the pre-19th Amendment constitutional context was better.
The deficiencies the 19th Amendment revealed during the constitutional crisis in 2018 and afterwards could not become dominant when siblings of the same family share power currently as President and Prime Minister of the country. However, when the agendas of the two start to differ, this dichotomy will be highlighted once again, giving rise to political incongruities and conflicts as to who has the greater authority, the elected president or the elected parliament. Once more, we need to remind ourselves that the 19A as proposed originally during the previous regime was subjected to many changes by the very same people who hold positions of authority in the current government. So, any blame regarding the deficiencies of the 19th Amendment lies squarely with all the parties who voted for the amendment at the time.
We have had three totally new Constitutions since 1947. As the President indicated during his speech to the Parliament, the Constitution has been amended 19 times since 1978. Moreover, previous constitution changing and/or making processes were neither consultative nor inclusive. For example, 18A was the worst with the parliament knowing its content only at the debating stage of the Bill. It is evident that the many changes brought to the original draft have been made not to make it more beneficial to the country as a whole, but for selfish sectarian political needs of a few. Whether the government intends to curtail/truncate parliamentary powers in order to strengthen the power of an individual / a clan is yet to be seen. Hence, it will be better to address the deficiencies of the 19th Amendment rather than repealing it in toto. Such a process would provide space for an improved framework of democratic governance until a new constitution is developed in an inclusive and consultative manner.
A new constitution that centralises more power driven by the monistic ideological beliefs of majoritarianism, will establish a ‘presidential monarchy’. This will be detrimental to the fundamentals of democracy destroying the separation of powers, fundamental rights, the rights of minority communities and devolution. There will be no opportunity to question the ‘presidential monarchy’ with regard to its responsibility and accountability to the people. Militarism, coercion and repression would replace civilian administration. Totalitarianism would replace pluralism. Economic growth would be based on inequality. Maintenance of power will be via a worsening hierarchical crony capitalist system. Those who benefit from cronyism will do the bidding for maintaining ‘presidential monarchy’ at all levels.
The President emphasised the need to formulate a new constitution that will provide priority to the concept of one country and one law for all. It should be one country, not united and maintained by force, but united and maintained by the will of the people of the country. The basic law of the country needs to provide a participative and inclusive environment for decision making with regard to building the future of the country, sans discriminatory practices. As such, what is meant by the concept of one country and one law needs further discussion and clarification. Would it repeal all personal laws? Would only the majoritarian views be made to prevail neglecting the rights of the rest by disregarding the principles of fairness and justice?
The measures taken by the President since assuming power appear to indicate that the transition to a constitutional set-up – post-19th Amendment – would bring together the executive arm and the defence establishment as the central pillar of governance managing society, economy, politics, and morality. Despite the popular support the government has received, such a development would represent a constitutional monarchy / dictatorship of a clan. It will be a new political phase full of challenges the people of Sri Lanka, both who voted for and against the regime will be faced with. Moreover, scrapping provincial councils without a better governance mechanism to address the issues of minority communities would be an affront to them and a provocation against them. Externally, Sri Lanka cannot live in isolation, but as a responsible country it also needs to fulfil its international obligations.
What we need is not a constitution that would steam roll the rights of the people as a whole, or the rights of the communities to be treated fairly and justly. This is not to refute the fact that Sri Lanka is a land comprising diverse ethnicities and faiths, but with a population the majority of which are Sinhala Buddhists. Any constitutional change needs to positively strengthen and activate democratic and human rights of each and every person irrespective of their background. The new government has one of the best opportunities to use its two-thirds majority to develop a Constitution that could stand the test of time to serve all the people of Sri Lanka on a non-discriminatory basis.