By Jayampathy Wickramaratne –

Dr. Jayampathy Wickramaratne PC

Sri Lanka’s constitutional journey remains marked by unresolved dilemmas: entrenched executive dominance, fragile fundamental rights, unfulfilled reform promises, and the persistent national question. These challenges have deepened inequality, strained ethnic relations, and weakened democratic accountability. The writer argues that constitutional supremacy must be firmly secured above transient political majorities, with judicial review extending to all acts of the State, including those of Parliament. Central to this vision is the abolition of the executive presidency, whose concentration of power has undermined Parliament and diminished popular sovereignty. Equally vital is the adoption of a modern bill of rights that safeguards equality, social justice, and human dignity and is enforced by an independent judiciary. Devolution of power is presented not as a concession but as a constitutional necessity—indispensable for unity in diversity and for laying the foundations of ethnic peace.

Based on the reports of the Steering Committee and the sub-committees of the 2015-2019 constitutional reform process, one could say that if a constitution had materialised, it would have been somewhere between a “reformist” and a “transformative’ constitution. On the other hand, if the 2000 Constitution Bill had been passed, the new constitution would have been a “transformative” one. On the 54th anniversary of Sri Lanka’s declaration as a Republic, the writer calls for a Third Republican Constitution that should be “transformative” rather than merely “reformist”.

The significance of the Aragalaya

Much has happened since 2000. The separatist war is over, but the ethnic conflict persists. The Aragalaya protest of 2022 marked a historic citizen-led uprising against authoritarianism, corruption, dynastic rule, and economic mismanagement, and was a turning point in the country’s democratic struggle. It symbolised the reclaiming of public space, the demand for accountability, and the assertion that ordinary citizens—especially youth—could challenge entrenched political dynasties. How should the new constitution respond to these developments?

The Aragalaya’s core significance lies in its role as a democratic awakening, in which ordinary citizens, transcending ethnic and class divides, reclaimed public space and demanded accountability from entrenched elites. It symbolised the rejection of corruption, nepotism, and unchecked executive power, while affirming the capacity of grassroots, youth-led mobilisation to force systemic change. As a basis for a new constitution, the Aragalaya underscored the urgent need to embed constitutional supremacy, end executive dominance, secure judicial independence, and strengthen institutional accountability—ensuring that sovereignty truly rests with the people and that governance cannot again be monopolised by dynastic or authoritarian rule. The Aragalaya fostered unprecedented solidarity among Sri Lanka’s diverse communities; it created bonds across ethnic and religious lines, making it far more difficult today for divisive forces to rekindle communal or sectarian hatred.

Aragalaya directly shaped the 2024 elections in Sri Lanka by delegitimising dynastical rule, energising youth and civil society, and embedding demands for accountability and constitutional reform into the electoral agenda. The protests created the political climate in which voters decisively rejected continuity and sought leadership promising systemic change.

NPP Victory in 2024

In 2019, Janatha Vimukthi Peramuna (JVP) formed a coalition called the National Peoples Power (NPP) with more than twenty organisations, including political groups, youth organisations, women’s groups, trade unions, and civil society organisations. Although it did not fare well in the 2019 Presidential elections and the 2020 Parliamentary elections, it was the primary beneficiary of the unprecedented protests against the political establishment in the wake of the massive economic crisis in 2022, which culminated in President Gotabhaya Rajapakse fleeing the country and resigning.

In the 2024 Presidential election, Anura Kumara Dissanayake of the NPP secured 42.31% of the vote in the first round. In the second round, preference votes from candidates outside the top two—Dissanayake and Sajith Premadasa of the SJB—were redistributed, and Dissanayake secured 55.89% of the combined tally and was declared the winner. Upon assuming office, President Dissanayake promptly dissolved Parliament. The subsequent election delivered a historic outcome: the NPP captured 61.56% of the vote and 159 of 225 seats, granting the party a decisive two-thirds majority to pursue constitutional reform.

In its election manifesto, the NPP pledged to introduce a new Constitution. Notably, the NPP committed to completing the 2015-19 constitutional reform process early. The main features of the Constitution would be a parliamentary form of government to replace the executive presidency, a new electoral system, fundamental rights to include economic, social, and cultural rights, rights of women, children, and the disabled, as well as “devolution of political and administrative power to provinces, districts, and local government units.”

The NPP’s main rival, the SJB, also committed itself to changing the present Constitution and formulating a new Constitution that would convert the form of government to a parliamentary system, include economic, social, and cultural rights, and provide maximum devolution based on the Thirteenth Amendment within a single country.

A transformative, “system-changing” constitution

How should a new constitution respond to the people’s cry during the “Aragalaya”, reiterated at the 2024 elections?

In essence, the Aragalaya’s cry for “system change” should translate into a constitutional framework in which sovereignty genuinely rests with the People and institutions are resilient against authoritarian capture. The new constitution must affirm that all power flows from the people and is exercised in trust, with accountability and in accordance with justice. Recognising the dangers of unchecked authority, corruption, and dynastic rule, there must be a clear commitment to a constitutional order that safeguards democracy, ensures transparency, and protects the independence of institutions.

The above can be realised only through a “transformative constitution” committed to “system change”, not a mere “reformist constitution”. The essentials of such a constitution lie in recognising that it is not a static text but a dynamic, evolving framework of governance. It must enable courts to interpret constitutional provisions in ways that respond to contemporary realities and advance justice and equality. A new constitution must therefore embody a strong commitment to social justice, requiring the state to dismantle systemic discrimination and ensure fairness and dignity for marginalised communities. Its legitimacy must also rest on participatory democracy, with citizens playing an active role in shaping institutions and contributing to the ongoing development of the constitutional order. Above all, a new constitution must be understood as a living instrument—capable of adapting to changing social, political, and economic conditions while remaining faithful to democratic values and fundamental rights. In this sense, the purpose of constitutionalism is not merely to preserve constitutional order but also to promote justice, equality, inclusion, and meaningful democratic engagement in a changing society.

Sri Lanka requires a modern, comprehensive bill of rights capable of addressing contemporary challenges, including equality, social justice, and human dignity. Rights must be real and enforceable rather than merely aspirational, and their protection depends on an independent and courageous judiciary. Likewise, devolution of power must be understood not as a political concession but as a constitutional necessity to empower the people at all levels. In a pluralist society, meaningful power‑sharing is indispensable for preserving national unity while respecting diversity and for laying the foundations for ethnic peace.

Supremacy of the Constitution

The supremacy of the Constitution should be the cornerstone of any truly transformative constitutional order. In the Sri Lankan context, it should mean that no state institution, nor any individual, family, or political party, can place itself above the law or manipulate institutions for personal gain. A transformative constitution must therefore enshrine the principle that all state power derives from and is limited by the Constitution, and that any act inconsistent with it is void.

To achieve this, the new Constitution must, at a minimum, provide that any law, subordinate legislation, or conduct inconsistent with its provisions is void, thereby affirming constitutional supremacy. It should guarantee unlimited judicial review of legislation, ensuring that no enactment escapes scrutiny. All existing laws must be interpreted subject to the Constitution, including the fundamental rights, unlike under the 1972 and 1978 Constitutions. Furthermore, all actions of Parliament, whether legislative or otherwise, must remain subject to judicial review. Finally, the jurisdiction of fundamental rights should extend to all actions of the state—legislative, executive, judicial, and otherwise—as well as to conduct by non-state actors, thereby securing comprehensive accountability under the constitutional framework.

An unalterable basic structure

Soon after a parliamentary election, the governing party often enjoys strong prospects of winning a referendum. But does this mean that a two‑thirds majority in Parliament, combined with 50% plus one of the People, can impose any constitution? Could it, for example, deny the freedom from torture to suspected terrorists or entrench one‑party rule? In the absence of entrenched safeguards, the risk of such perilous constitutional changes remains unchecked.

Sri Lanka’s constitutional reform process should pursue a carefully balanced approach to entrenchment. Provisions that safeguard foundational principles are essential to guard against abusive or opportunistic amendments. However, such protections must be drafted with precision and restraint. If entrenchment is framed too broadly, it can immobilise detailed or technical provisions, resulting in excessive rigidity and weakening the Constitution’s capacity to adapt to evolving democratic realities.

The most effective protection lies in a dual framework: confining entrenchment to the Constitution’s core identity while simultaneously empowering the judiciary to scrutinise constitutional amendments against those basic principles. This approach secures permanence where it is most necessary while preserving flexibility in other areas of governance. For Sri Lanka, the central lesson is that constitutional stability should not be achieved at the cost of democratic adaptability. A thoughtfully calibrated combination of narrowly defined entrenchment and principled judicial review provides the most reliable foundation for a constitutional order that is both resilient and responsive.

The writer submits that a future constitution should contain a set of basic principles that form an unalterable basic structure. On the eve of the 2024 Presidential elections, the Collective for Democracy and Rule of Law, a group of academics and professionals, proposed that a set of ‘Constitutional Principles’ be included in a new Constitution. They should be described as ‘immutable and inviolable values of democratic republicanism.’ These principles will embody the fundamental constitutional values that guide the new Constitution and future judicial interpretation of its clauses. The Collective proposed that the Constitution should recognise the following immutable and inviolable values of democratic republicanism and consociationalism: human dignity, social justice, economic justice, equality and the advancement of human rights and freedoms; ethnic, gender and social equality; the supremacy of the Constitution and the Rule of Law; regular, uninterrupted, free and fair elections and a multi-party system of democratic government; non-concentration of state power in one individual or institution; the assurance of accountability, responsiveness and transparency at all levels of governance; public authorities hold and exercise powers in accordance with the doctrine of public trust. The writer submits that the above principles could form the basis for an unalterable basic structure.

The NPP government was entrusted with a clear mandate to dismantle authoritarian structures and deliver constitutional reform, yet its continued inaction betrays that trust. Sri Lanka cannot afford further delay, for every day without reform entrenches executive dominance and erodes public faith in democracy. What is needed now is decisive action to abolish the executive presidency, entrench constitutional supremacy, advance devolution, and pave the way for social justice, so that sovereignty genuinely resides with the people and the promise of a just, democratic republic is finally realised.

(Excerpted from the writer’s forthcoming publication ‘Constitutional Conversations.’)