By Dinesha Samararatne –
Prof. Dinesha Samararatne
Speech made by Prof. Dinesha Samararatne at the launch of “Constitutional Conversations” authored by Jayampathy Wickramaratne
My Lord the Chief Justice, Hon Attorney General, honourable members of the judiciary, distinguished members of the Bar and academics, distinguished guests from other sectors of service, ladies and gentlemen, we gather here today to celebrate yet another publication of a prolific writer on public law in Sri Lanka. Congratulations, Dr Wickramaratne, and thank you for this valuable contribution to our knowledge and for the opportunity to offer my assessment of this book with this distinguished audience.
In the next 15 mins or so, based on my reading of Constitutional Conversations, I will speak on the following five points. First, I will provide a brief overview of the book; second, I will speak to the significance of this book to knowledge, theory and practice of constitutional law; third, I will offer reactions to some of the ideas that are presented; and fourth, I will comment on the genre of this book. Fifth and finally, I will offer some suggestions for Dr Wickramaratne to consider for any future publications that he might have in mind.
Overview
The book comprises 11 chapters on constitutional governance in Sri Lanka and deals with relevant issues and developments up to the end of 2025. Anyone who is familiar with Dr Wickramaratne’s professional life and public service would immediately recognise that its chapterisation closely follows his contributions to constitutional governance in Sri Lanka in the last two to three decades. The eleven chapters cover, broadly, the executive, the checks and balances between the executive and parliament, Sri Lanka’s experiences with constitutional reforms in the last two decades and two thematic issues in the law – terrorism and noise pollution.
Significance
I think Constitutional Conversations is a significant contribution not only to public law in Sri Lanka but also at the global level for several reasons. Almost all the chapters are written from an insider perspective and therefore provides information, insights and explanations on significant recent constitutional developments that have hitherto only been available anecdotally. Dr Wickramaratne has been, what is described in literature on constitutional law as, a constitutional actor. Over the last two decades he has served as an expert on drafting committees, as an advisor to the President and as a Member of Parliament. Importantly, this book does not come across as an attempt to justify or further explain a constitutional actor’s past work. It is transparent, dispassionate, and presented in an argumentative mode making it clear that the author’s objective is to convince rather than to assert. The title Constitutional Conversations, aptly reflect this spirit of the book. This book is also significant in that it complements the more academic work on these recent developments. Dr Wickramaratne brings in a granular account of how and why some of these developments came about while the more academic work situates these developments in constitutional theory. To this extent, Constitutional Conversations fills a notable gap in the literature. Furthermore, this work is significant because, if I am not mistaken, for the first time, an argument has been presented as to why the constitutional provisions on the Executive Presidency and the direct election of the President may be amended without recourse to a referendum. I know these arguments have been made before Court but I do not think they have been systematically dealt with in any written work on the subject. My own writing on this issue has only dealt with the matter briefly.
A highly useful aspect of this book is that almost every chapter, includes proposals for specific constitutional reforms. I will return to this point later in my remarks. Dr Wickramaratne’s work is inherently comparative. Most chapters offer discussions on a wide range of comparative examples that go beyond the usual suspects such as India, the US and UK and include examples from a wide range of countries including Finland, Uruguay, Portugal, Costa Rica and France. This comparative engagement reflects both Dr Wickramaratne’s knowledge of constitutional developments in the world as well as the work he has done as an expert in different jurisdictions.
Some reactions
Let me now offer some reactions to the ideas presented in Constitutional Conversations. I will first speak to two specific aspects and then to what I think is an overarching implicit theme of the book.
Chapter one of this book is titled, ‘Entrenched Constitutional Provisions’ Dr Wickramaratne makes the argument that the constitutional provisions on the office of the executive president and on the direct election of the president are not entrenched and therefore may be amended without seeking approval of the people at a referendum. As we all know, Justice Sharvananda, writing for the majority in the Thirteenth Amendment special determination of 1987 noted the drafting history of articles 3 and 4 of the Constitution and held that, the ‘agencies or instruments for the exercise of the sovereignty of the people’ may be amended, ‘provided such amendment has no prejudicial impact on the sovereignty of the People.’ However, in subsequent special determinations our Courts have held differently. Most recently, in the special determination on the 22nd Amendment (which was enacted as the 21st Amendment), Court proposed two tests – of delegation and alienation in determining whether a referendum will be required in relation to a proposed amendment that impacts Article 4. In his book, Dr Wickramaratne makes a dispassionate case as to why any proposed amendment to the Constitution that impacts Article 4 would not require a referendum and explains, with all due respect to Court, why he thinks that the majority reasoning in the special determination on the Thirteenth Amendment is the more accurate constitutional interpretation that ought to apply. I find Dr Wickramaratne’s argument to be persuasive. In fact, in my own work, I have argued that most certainly, in Sri Lanka’s political imagination and consciousness, the Executive Presidency is entrenched but that the argument for its constitutional entrenchment is weak. This political and cultural weight attached to the office of the Executive President, in my view, is at odds with the constitutional scheme because Article 83 does not include any of the provisions related to the Executive President, with the exception of any extension to the term of office. The case for this approach to interpreting Article 4 is supported on the basis of the drafting history, as well as the literal reading of the Constitution.
The second reaction is related and one in which I have had a vested interest in the recent past, which is the Constitutional Council. Dr Wickramaratne offers a useful account of how the Council came to be and the political negotiations that shaped the different versions of the Council we have had under the respective constitutional amendments. My reading of Dr Wickramaratne’s analysis is that he does not venture to analyse the type of power exercised by this Council. I wondered whether not going into this question about the constitutional nature of the Council more deeply was an opportunity missed.
I say this for the following reasons. Sri Lanka’s Constitutional Council is, from what I know, unique in the world. The Nepali Constitutional Council inspired it, but the two Councils have a fundamental difference, in that the Sri Lankan Council includes independent unelected members. Interestingly, the consensus seems to be that in Nepal, the Council has, by and large, been ineffective. While Sri Lanka’s Council too has had a chequered history, I think its fair to say that it has had some positive impact as well. It is clear that the Council acts as a check on the power of appointment by the Executive President to constitutional high offices and constitutional commissions. With regard to its identity and nature, notably in the special determination on the 18th Amendment Bill of 2002, the Court has held that the Council is part of the Executive. I, however, along with a few other academics who study independent constitutional institutions, am of the considered view that the power exercised by the Council is better described as a guarantor power, a power that has been hitherto mostly latent in our constitutional systems. I don’t want to get into the details of this argument here except to say that guarantor power is described as the power to guarantee non-self-enforcing constitutional norms, such as integrity of elections or judicial independence. The Council guarantees some of these norms as a meta-guarantor institution, through a multi-partisan and independent decision-making process. I am mindful of the counter-arguments to this position and think that this is a debate that this book could have taken on.
Now let me turn to what I think is one of the overarching implicit themes in this book. In his acknowledgements, Dr Wickramaratne notes, and I quote, ‘My aim is to show that constitutional law is not merely a matter of doctrine but a lived struggle for justice, equality and peace – one that demands both critical reflection and committed engagement.’ In the book, Dr Wickramaratne engages with the political developments of 2022, among others, and indeed, throughout his work, offers commentary on the dynamics between politics, constitutional governance and constitutional reform. And yet, in my reading, he only deals indirectly with the fundamental challenges that are presented to liberal constitutionalism by the political developments that he discusses. In fact, he, in my view, short sells, his own contribution to the thickening of the ‘immutable republican principles’ that the preamble of our constitution refers to, notably, representative democracy, freedom, equality, justice, fundamental human rights and the independence of the judiciary. As we all know, a thin account of liberal constitutionalism concerns itself with supremacy of the constitution, negative protection for civil and political rights, judicial review of legislation, separation of powers and independence of the judiciary. However, Constitutional Conversations, documents the ways in which, several in Sri Lanka, including Dr Wickramaratne, have advocated for going beyond the liberal understanding of constitutionalism to also engage with the social justice questions of the day, such as equal citizenship for ethnic minorities, judicial protection for welfare through justiciability for economic and social rights and re-imagining the constitutional architecture of the state through the innovation of a Constitutional Council. Now, to some extent, my reading is that Dr Wickramaratne’s ideology lies somewhere between a left leaning commitment to state responsibility for minimum standards of living and therefore a strong state, and a commitment to the liberal idea of avoiding concentration of state power. I think these dual commitments undergird his treatment of the different topics in this book.
Genre
Now I would like to offer some reflections on the genre of Constitutional Conversations. This book is very different from Dr Wickramaratne’s most well-known work, Fundamental Rights in Sri Lanka which is now in its third edition. I understand that Fundamental Rights in Sri Lanka originated as a PhD thesis and has since then evolved into the only reference book on the subject. That book is a systematic discussion and analysis of constitutional text, doctrine and jurisprudence, which is woven in with a consistent engagement with foreign law and Sri Lanka’s obligations under international human rights law. In contrast, Constitutional Conversations, is written by a constitutional actor who is self-conscious of his professional experience, his ideological commitments and his academic insights and brings all of them to bear on his writing. Reflecting this mixed approach, I noticed how the writing style shifts across the different chapters. Some sections are more reflective of the style of writing we would use in writing opinions, some sections are written more in the style of advocacy and some other sections are written in a more academic style.
Not all forms of writing on constitutional law are the same, nor should they be the same. They could be more or less professional or academic or advocacy type in substance, form and style, or aspire to straddle all three. I read Constitutional Conversations as offering a predominantly professional account while including academic discussion and as including very useful and significant recommendations for constitutional reform. Such work can only be produced by the few members of our legal community who have straddled the professional, academic and advocacy dimensions of our work, and Dr Wickramaratne is certainly one of them.
This character of Constitutional Conversations gives added weight to the recommendations for constitutional reform that Dr Wickramaratne includes in most of his chapters. The set of recommendations that I found most interesting is found on p 198. He argues that responding to the demands of the Argalaya calls for an explicitly transformative constitution and not a reformist one and he identifies 4 features that should be included in such a transformative constitution.
1. Dynamic constitutional interpretation that would advance justice and equality
2. A social justice orientation including the dismantling of systemic discrimination
3. A commitment to participatory democracy
4. A constitution that is evolutionary in character and a living document
I hope we can consider these recommendations as points of departure in our next cycle of constitutional reform. Unlike Nepal and Bangladesh, Sri Lanka managed to stay within the constitutional framework in its recent experience of mass mobilisation in 2022. The developments since then confirm to us that while it is not easy for a set of political ideas and demands to become a social movement which leads to mass mobilisation, it is hard to ensure that the demands of such a movement are translated into actual decisions by those in power and even harder to bring about the long-term institutional, policy, legislative and constitutional change that Sri Lanka is desperately in need of. This book can assist us in that difficult but essential constitutional journey.
Suggestions
Dr Wickramaratne, reading Constitutional Conversations in preparation for this launch, I had two thoughts which I am going to repurpose as suggestions for future work that you might think of producing. The first is to consider adding an introduction and conclusion to future work of this genre. The introduction could bring together the themes that run across the different chapters and speak more directly to your experiences as a constitutional actor in each of these developments. A conclusion could underscore for the reader the main insights you offer. The addition of an introduction and conclusion would make this work more accessible to law students as well as to a regional and or international readership. Constitutional developments in Sri Lanka have always attracted professional and scholarly interest and I know work of this nature has much to offer in that regard.
The second suggestion is a substantive one. Implicit across the eleven chapters of Constitutional Conversations is the role Dr Wickramaratne played in the relevant constitutional developments and related political negotiations. Occasionally, you modestly refer to yourself as ‘the author’ who was involved. It is clear to the reader that through these experiences, you have developed acumen on the prospects for progressive constitutional change, constitutional governance and constitutional politics in Sri Lanka. It is clear that you have your own ‘theory of change’ and that you also have an understanding of what constitutional actors ought to do, when their efforts seem to fail or are being rejected. I do think that writing more intentionally about your experiences as a constitutional actor would be very useful for the field, in Sri Lanka and beyond. I hope this is a project that you will consider worth pursuing in the future.
Conclusion
And now, in conclusion – For the curious student, committed professional and discerning citizen Constitutional Conversations provides the foundation that they need, to more fully understand the constitutional challenges of our time, here in Sri Lanka, through the experience of a constitutional actor but presented dispassionately and with reason. Reading this book, I could see the ways in which Dr Wickramaratne’s professional and political choices enabled him to make a significant contribution to the advancement of constitutional governance in Sri Lanka. He has been able to combine his professional work with the academic and advocated politically to bring about the change he believed in. This book is a fitting testament to that life of service. Congratulations Dr Wickramaratne and I thank all of you for your patient listening.