–Ashwini Vasanthakumar (University College, Oxford) and Rehan Abeyratne (Jindal Global Law School)
On January 8, 2015, Sri Lanka elected Maithripala Sirisena as its new President. Sirisena was an unlikely victor. He was Minister of Health and General Secretary of President Rajapaksa’s Sri Lanka Freedom Party (SLFP) until November 2014 when he was chosen to be the opposition’s common candidate. In accepting the nomination, Sirisena voiced long-standing concerns about the ruling regime, including that it had driven Sri Lanka towards dictatorship and concentrated power within the Rajapaksa family.
President Sirisena has promised to enact sweeping legal changes in his first 100 days in office. While several measures have been—and continue to be—announced (see here and here), we focus on three proposed constitutional reforms in this post. We believe these reforms would fundamentally alter Sri Lanka’s constitutional structure by weakening the executive and devolving greater powers to the provinces. Such decentralization could potentially move Sri Lanka away from authoritarianism and address demands for greater autonomy in the North and East. However, the new government must ensure that these reforms complement each other and do not undermine the political settlement that appears to be emerging since President Sirisena’s election.
The first proposed constitutional reform is to reinstate a parliamentary system of government.
From 1948-72, Sri Lanka (then Ceylon) was a British dominion with the British monarch as its head of state and a Westminster parliamentary government. Sri Lanka adopted the Westminster model primarily because of its close ties with Britain. British constitutional scholar Sir Ivor Jennings was instrumental in the drafting of the post-independence constitution. In 1972, Sri Lanka adopted its first republican constitution, but maintained a parliamentary government. By 1978, with the Sri Lankan economy floundering and weak coalition governments preventing stable leadership, Sri Lanka adopted a presidential system modeled on the French (Gaullist) and American governments.
The Sri Lankan President is perhaps the most powerful executive in the world. He is the Head of State, Head of Government, and the Commander-in-Chief of the Armed Forces. The President is directly elected to office and presides over a Cabinet of Ministers. Following the French model, the Prime Minister and the Cabinet of Ministers are drawn from the majority party in the Parliament. However, unlike in France, the President has complete discretion in nominating the Prime Minister and Cabinet of Ministers, who serve at the President’s pleasure. The President may assign him or herself any portfolio or function and may dissolve Parliament at any time except during the first year after a general election. The President has sole authority to appoint Supreme Court justices and is also immune from suit in any court or tribunal for both professional and private conduct.
Second, President Sirisena pledged to repeal the controversial 18th Amendment to the Sri Lankan Constitution.
Enacted in 2010, the 18th Amendment further aggrandized the presidency and enabled then-President Rajapaksa to assume near-authoritarian powers. It abolished term limits for the President, who was previously limited to two six-year terms. It also repealed important constraints that the 17th Amendment (2001) had placed on executive power. The 17th Amendment aimed to depoliticize important government functions by creating an independent Police Commission, Human Rights Commission and Election Commission, among others. The President was empowered to appoint the members of these commissions, but only with the consent of an independent Constitutional Council.
The 18th Amendment replaced the Constitutional Council with a Parliamentary Council. It consisted of the Prime Minister, the Speaker, Leader of the Opposition Party and two Members of Parliament nominated by the Prime Minister and Leader of the Opposition. It therefore politicized the appointments process and guaranteed that the President’s appointees would be approved since three of the five Parliamentary Council members represent the majority party or coalition. In effect, the 18th Amendment permitted the President to appoint the Chairman and members of the following commissions: the Police Commission, Human Rights Commission, Election Commission Permanent Commission to Investigate Allegations of Bribery and Corruption, Finance Commission, and the Delimitation Commission. The new government has proposed a 19th Amendment to the Constitution that would restore independence to these commissions and create a Judicial Services Commission charged with appointing judges.
Third, President Sirisena has committed to devolving authority to Sri Lanka’s provinces.
The centralization of power in the Executive since 1978 has worked hand-in-glove with a strong unitary constitution. The centralization of power in Sri Lanka has therefore had profound implications for the so-called ‘national question’: the question of how to accommodate Sri Lanka’s religious and ethnic minorities. Former President Rajapaksa resisted devolving powers to the regions and insisted upon the unitary constitution. Prior to the presidential elections, President Sirisena indicated he would do the same. Since winning, however, Sirisena’s government has made a number of overtures to religious and ethnic minority groups. In particular, the government has stated its intention to fully implement the 13th Amendment.
Pursuant to the 1987 Indo-Lanka Accord, the 13th Amendment to the 1978 Constitution and the Provincial Councils Act were passed later that year. The 13th Amendment had two major components. First, it recognized Sinhala and Tamil as official languages, with English to act as a link language. Second, it created Provincial Councils for each of nine provinces. Under the Amendment, each Council is empowered to legislate on matters relating to, inter alia, policing, education, housing, land regulation, and cultural monuments. On some of these matters, however, the Council shares jurisdiction with the Central government; in the event of a conflict, the Centre prevails. Each Council acts through a President-appointed Governor who also has the power to suspend the Council. And each Council’s use of funds remains under the ultimate control of the President. Similar to the federal structure in the Indian Constitution, the 13th Amendment contemplates a potentially substantial devolution of powers to the provinces that nevertheless remains under the potentially restrictive powers of the Centre. The actual experience of Provincial Councils reflects this ambiguity.
Since its passage, the 13th Amendment has been dismissed by members of both the Sinhalese and Tamil communities as conceding too much and granting too little. As the war escalated, and during the peace process of 2002-2005, federal models promising greater devolution were mooted. With the end of the civil war in 2009, former President Rajapaksa promised to deliver ‘13th Amendment plus’, which would devolve greater powers to the regions, and particularly to Tamil and Muslim communities in the North and East. India has long insisted upon its full implementation. Whatever its actual substance, the 13th Amendment is political shorthand for greater autonomy for minority communities.
Over the past month, the new government has promised substantial constitutional reforms. Together, these three reforms should place Sri Lanka on the path towards accountable government with greater autonomy for minority groups. The repeal of the 18th Amendment, which would reinstate independent commissions and Presidential term limits, is the most straightforward proposal for reform. This would decentralize power within the Sri Lankan government, which might also weaken central control over the provinces. This perhaps mitigates concerns that the 13th Amendment does not sufficiently devolve power to Provincial Councils, although it contains ample potential to do so.
The benefits of a shift to parliamentary government, however, are less evident. By eliminating the executive presidency, which concentrated too much power in one individual, Sri Lanka would be less likely to dissolve into authoritarian rule. There is also scope for greater minority representation in parliamentary coalitions, as the zero-sum game of presidential elections would be eliminated. But parliament might also become ineffective or dysfunctional. From 1948-78, Sri Lanka was largely ruled by precarious coalition governments that could not govern effectively. The business of forming coalitions, managing coalition partner interests, and protecting against the threat of dissolution from coalition members, often prevented stable leadership. This is arguably what has happened in India as well, where prior to the 2014 national elections, no party had commanded a majority since 1989. In this period of rebuilding after the war and reestablishing democratic rule following President Sirisena’s recent victory, Sri Lanka must strike the proper balance to ensure capable, but not unaccountable, government.
To be sure, a comprehensive political settlement—called for by many after the war ended—might not be feasible. It could easily run into delays, face objections, and destabilize whatever coalition now supports the government. Piecemeal constitutional change, if undergirded by robust political support (of which there currently is no shortage), might therefore be the most feasible and most effective means to eventually achieve meaningful reform.
This raises broader questions about the political processes and context required for constitutional change to be effective. The Government does not appear to have a comprehensive plan that is mindful of what political order these constitutional reforms would create. Some of the proposed reforms, such as instituting parliamentary government and repealing the 18th Amendment, seek to return Sri Lanka to earlier constitutional times. But these reforms—and the status quo they sought to alter—emerge from particular moments in Sri Lanka’s history, often as political comprises aimed at solving context-specific problems. For instance, the 1978 Constitution sought to provide stable executive leadership following years of ineffective parliamentary government, which led to economic stagnation and rising ethno-nationalism that set the stage for Sri Lanka’s civil war. The 17th Amendment sought to place some limits on the executive president. How would that apply in a parliamentary system? Would it even be necessary? The new government must work through these difficult questions before implementing its proposed reforms.
Suggested Citation: Ashwini Vasanthakumar & Rehan Abeyratne, Three Key Constitutional Reforms for Sri Lanka, Int’l J. Const. L. Blog, Feb. 7, 2015, at:three-key-constitutional-reforms-for-sri-lanka
 For instance, one of President Rajapaksa’s brothers was the Speaker of the Parliament, another was Minister of Defense, and a third was Minister of Economic Development.