By Athulasiri Samarakoon –

Dr. Athula Samarakoon

The government of Sri Lanka is currently amending the constitution for the 20th time. Though I use the term ‘the government’ to explain the proponents of this amendment as the coalition members of the Sri Lanka Podujana Peramuna (SLPP), there seemed to be no unanimity on the proposed amendment among them at the beginning. Understandably, there was a clear division and greater reluctance among them to accept ‘the authorship of the amendment’ in public. Some even seemed to feel quite ashamed of it. Testifying to this lack of cognizance of the amendment which was turning into a subject of controversy within the SLPP itself, the prime minister appointed a special committee to study and, probably, to redraft it. Prime minister Rajapaksa’s move proved very clearly that the amendment was entirely a design of his brother, former secretary of defense under his government, the current president Gotabaya Rajapaksa and his confidants, who were never revealed or, perhaps, worked behind the scene.

However, the president, vehemently reaffirming his position, declared that the 20th Amendment will be presented to parliament only as the originally gazetted version of it; ‘the president’s arbitrariness’, some interpreted his action as such. However, in a move to reconcile the controversies within the government, its spokesmen told that any change to the amendment, if necessary, could be negotiated at the “committee stage” in parliament. Now the 20A is before the parliament and also being challenged by 39 petitions submitted before the supreme court. Many of the petitions seem to argue that the amendment is an attack on people’s sovereignty; hence, it requires a referendum to decide on its adoption.

Basically, the 20A is proposing to revoke the 19A, except for a few provisions of it. During the last general election, the SLPP asked for a 2/3rd majority from voters to bring a new constitution. Yet, no new constitution has been presented yet; instead of a whole new constitution, what we have is the 20A, which is likely to restore the autocratic powers of the president under the 1978 constitution. And the 20A comes with that promise to bring a new constitution shortly after this most urgent (why?) amendment is passed in parliament.

So, the assurance is that the 20A is just for a short period, a temporary measure, a transition, a passage to a new reform (?) etc. But, it also can happen otherwise, that the 20A itself will be the change, the new constitution, and the transformation, who knows? Therefore the latest political debacle in Sri Lanka revolving the 20A is an important one on a very crucial amendment, which can be the most essential reform to ‘localize democracy’ as the nationalists want it to do, or the one which will undo the settings of the democratic system according to those liberals and others who oppose it. 

The current mobilizations against the 20A among the opposition parties, civil society and lobbying teams largely carry the argument that the 20A may lead to an authoritarian executive, a despotic presidency, which already is “the Head of the State, the Head of the Executive, the cabinet and the government, and the Commander-in-Chief of the Armed Forces” [Article. 30. (1) of 1978 Constitution]. Before the 19A was incorporated into the constitution, the president of Sri Lanka was an omnipotent institution of the government with unparalleled powers and immense discretion to bypass the legislature and the judiciary. The executive pillar of the government was stronger than the other two, the legislature and the judiciary, which appeared just subsidiary or nominal institutions.

With the 19A of 2015 a distinct shift of the hitherto existing powers of the president took place, with the support of an absolute number of members in parliament, and only one member voting against it. Mr. Maithripala Sirisena, then president, told after the 19A was passed with an absolute majority voting in favor, that he sacrificed (offered as an alms giving/mama janadhipathi balaya dan dunna) his presidential powers. However, it was clear that Mr. Srisena’s act was never a self-sacrifice but a result of the agreement he had entered with the forces that nominated him as the presidential candidate, then against a very powerful incumbent, seen as indomitable, Mr. Mahinda Rajapaksa.

It is very clear that the president’s discretion was challenged by the 19A to a considerable extent and the prime minister, the constitutional assembly and the independent commissions were made to stand as some important checks against the president’s arbitrary moves. The 19A empowered the independent commissions, and, as a result, the judiciary could, for the first time, reverse the president’s actions, referring to them as violations of fundamental rights of the people. The balance of power created by the 19A within the government organs was very clear. Yet, during the 2015-19 period, this very balance was interpreted as ‘weakness of the government’ by those who criticized it as a conspiracy involving western powers who wanted to implant ‘good governance’ here.

Consequently, the yahapalanaya regime was overthrown when the public opinion imbued with the ideas of ‘weakness of the government, political instability and the condition of weak national security’ etc. was rising very high, due mostly to the impact of the power struggle between the president and the prime minister. The arbitrary removal of premier Ranil Wickremesinghe on 26th October 2018 and installing of Mr. Mahinda Rajapaksa as PM were both serious violation of the constitution by president Sirisena. That episode was a clear evidence in the eyes of the public for the ‘instability’ of the government. And, the worst came after that, on 21st October 2019, with the Easter attack. And this tragedy of a series of bomb explosions in a single day, killing and injuring hundreds of civilians, further sharpened the public opinion against the government which seemed to be in disarray. Later, in two consecutive elections, an overwhelming majority of the Sinhalese-Buddhists voted against the UNP, the major party in yahapalana regime. Now, in October 2020, Sri Lanka’s democracy is confronting yet another threat, arising not from terrorists nor due to the lack of unity, power and weakness of the government, but from the motives for absolute power of the very government banking on the power of nearly a 2/3rd majority in parliament.

The defeated forces in 2015 elections have been brought back to power giving them a 2/3rd majority against the opposition – the UNP confined to just one seat and its offshoot Samagi Jana Balwegaya (SJB) with 54 seats and the NPP/JVP which also indirectly backed up the yahapalana government, with just 03 seats in parliament. While the government received nearly 7 million votes, twice the same amount in two consecutive elections, the opposition could only manage less than 3 million in the general election (which was reduced from nearly 5.5 million in the presidential election). However, the political apathy among people was very clear when several millions of registered voters had not cast their votes in the general election.

The passivity of the people (let’s say Sinhalese-Buddhist majority) towards the yahapalana regime [even though for the first time after 1978 it had succeeded in addressing a long term demand of amending the executive presidency] could be due to several reasons – the grudge between the PM and President, the Easter attack etc., as explained above, which also showed the negligence, insensitivity and irresponsibility of the government at many levels. However, among all these reasons, which the general public considered very consciously in voting against the yahapalana regime or its constituent elements, the most important factor, less visible but of which the people were more concerned than anything else, could be the ‘imagined act of undermining or injuring the Sinhalese-Buddhist psyche’ by reducing the powers of ‘the Head of the government and the state’ through the 19A. The installation of an executive president in 1978 was seen by its creator JR Jayewardene himself as restoration of ancient-kingship, the powers of three sinhaladeeshwara, the protector of the Buddha Sasana’.  Hence, I presume that the political interests of the elite nationalists are closely tied with the institution of the presidency and its written and unwritten role, and not with the parliament which houses, after all, all sorts of ethnic, religious, class representatives as equals. Therefore, the attempt to revive absolute powers in presidency under the current president is part of a larger strategic move towards preserving Sinhalese-Buddhist supremacy in the core of the government and the state. Yet, the Sinhalese nationalists seemingly are not ready to buy this argument either, that the 20A will strengthen their interests in the current context of global power politics. As they think, the president will be in a more dominant position, gain even the ability to compromise Sinhalese-Buddhist interests and to negotiate and accommodate foreign interests inimical to nationalists and their agenda of creating a ‘civilization state’ (sabyathwa raajya).

The SLPP which is largely backed by Sinhala nationalists prefers a powerful executive with immense powers to command (anakaranna) without wanting him to refer to other institutions when the ‘nation is in danger, facing an external or internal threat’ etc. The Easter attack is being narrated by nationalists and their media as an obvious instance of the then president’s inaction due to the delegation of his powers to other institutions under the 19A. This idea was heavily utilized to justify the argument that the lack of powers in presidency to act ‘immediately, strongly and decisively’ make the country vulnerable to national security threats. For instance, Prof. G.L. Peiris argues that the president cannot hold the post of Defense Minister due to the 19A and, hence, cannot act swiftly if a national security threat arises again. Nevertheless, professor Peiris and his alliance do not cite that the same president could act with enormous powers to fight the Covid-19 and command the military without any resistance from other institutions.

Somehow, the near 2/3rd majority won by the SLPP is an expression of the kind of legitimization that it has received from the “people” (here I mean the people belonging to the majority community, who would be easily persuaded by the argument for the necessity of a strong ruler to face threats) to restore the powers of the executive, the modern version of the ancient kingship, ‘the Raju’ whose “word is the law”. [remember the song with the line ‘apatath rajek pahalawa aththe’ which was played in media and the election campaign as background music when MR contested).

Modern democracies are based on the principle of separation of powers among the three major organs of the government, the executive, the legislative and the judiciary. Though J.R. Jayawardene maintained the physical distance between the buildings of parliament, presidential office and the supreme court, there was no clear separation of powers among these three institutions which are the coequal representative organs of peoples’ sovereignty under the 1978 constitution. Under the irresistible presence of the political executive, the parliament was a mere talk shop while the judiciary was very often subject to political manipulations. The president’s decree only could guide the function of all these three institutions. The principles of ‘justice, equality and fairness’ never had mattered when introducing the 1978 constitution and several other amendments (except the 17A and 19A) thereafter. The 18A was another vicious attempt to strengthen presidential powers and immunity.

It seemed that whenever the majoritarian posture, that the interest of the majority ethnic community should prevail over others, was about to be challenged under different conditions, Sri Lanka’s post- independent political system had attempted to concentrate the powers in one center, a chosen individual; 1972 and 1978 constitutions did it differently but the goal was the same, i.e. to allow the interests of elite Sinhalese nationalism to prevail and rule over the deprived, the marginalized etc. And prevent such interests being negotiated or compromised.

However, the idea of democracy as peoples’ power or rule is the referent point of legitimacy for creation of such systems that favored the interests of some and excluded others. The very act of making a constitution, therefore, shows the continuity of legalizing the process of ‘othering’ in politics. Whereas the 19A was decried by nationalists as a Western design (batahira ugula) based on liberal internationalist Good Governance formula containing the elements such as transparency, decentralization, accountability, limited government, separations of powers etc., the 20A may strongly side with what is not good governance – non-transparency, extreme centralization of power, authoritarianism, large state etc. The duel between these two sets of values finds the battle between the 19A vs the 20A.

Unequivocally, the 20A will revert the system back to its old model but its negative consequence will be far reaching, particularly, in the context of rising nationalism, authoritarianism and declining status of global liberal democracy in the world today. The autocratic government that the 20A is going to install is the exact problem that the political system, today, should negotiate by giving high esteem to the principles of justice, equality and fairness. Though the constitutional laws tend to deviate from these basic principles of general laws, today, our challenge is to open this discourse to the public. Because, the public may not reason the things as we do, or the politicians do. They are led very often by the sentiments and emotions towards their religion and nation. Politicians thrive on this tendency among the public and make and break laws whenever the opportunity is present.

N.M. Perera, who opposed the 1978 constitution, had argued that the hybridization of “the Anglo-Saxon Parliamentary system and the American Presidential system” could only result in a “hotchpotch”.  This hotchpoth system was quite rectified and brought under the democratic order by the 19A. The 20A has come to restore the ‘hotchpotch’ of the JRJ and bury the 19A; but the limit of the power the 20A is going to place on the executive will not even end after creating an autocracy. It is going to create an unbounded, absolute power under the political executive. It will fundamentally oppose democracy as a way of life, government and philosophy and will work to uproot it from all institutions from micro to the macro level of society, government and the state. The 20A is essentially opposed to general law principles and against the pluralistic ethos and basic values of liberal constitutional rule; and it will predictably endanger deliberative democracy and is a pervert attempt to erase democracy in Sri Lanka.