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Constitutional Chaos in Sri Lanka: Constitutional Retrogression or Working Out of its Constitutional Salvation?

Jaclyn L. Neo, National University of Singapore Faculty of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

The current constitutional chaos in Sri Lanka throws up important questions about constitutional design, constitutional resilience, and constitutional culture. The present crisis was triggered when on 26 October 2018, the Sri Lankan President Maithripala Sirisena purported to sack Prime Minister Ranil Wickremesinghe and replaced him with Mahinda Rajapaksa as the new premier of Sri Lanka. Rajapaksa was a two-term president considered a hero by much of the island’s Sinhalese majority for ending a 37-year civil war. He has also been accused of grave human rights abuses during his tenure. In 2015, he lost his presidential bid when now President Sirisena teamed up with then opposition leader Wickremesinghe to put himself forward as a unity candidate against Rajapaksa and to bring to an end blatant corruption and abuse of power under Rajapaksa’s regime. Sirisena later appointed Wickremesinghe as prime minister, after Wickremesinghe’s party (UNP) won most seats (but fell short of a majority) in the 2015 parliamentary elections and formed a national unity government with Sirisena’s party (SLFP).

As is probably to be expected, Prime Minister Wickremesinghe refused to accept his sacking and continued to occupy his official residence. President Sirisena then sought to prorogue, then dissolve parliament on 9 November 2018, five days before it was due to reconvene, and sought to call for a general election on 5 January 2019. The dissolution was likely to avoid a vote of no confidence against Rajapaksa. However, following a petition by three political parties, including Wickremesinghe’s United National Party (UNP), the Supreme Court issued an interim order suspending the dissolution. Parliament reconvened and on 14 November 2018, passed a vote of no confidence against Rajapaksa. Without the confidence of a majority in Sri Lanka, Rajapaksa does not satisfy the constitutional prescription for the premiership. However, he has refused to go away and his supporters disrupted parliamentary proceedings even as a second vote of no confidence was put forward. Important questions have arisen about the constitutionality of events in Sri Lanka and addressing these issues allow us to examine broader issues about the importance of design (or not), democratic resilience, as well as the role of constitutional culture in preserving the constitutional order. Here, I discuss two such issues arising from the current political conundrum.

1. Dissolution, Presidential Powers, and the Role of the Courts

The first question relates to the constitutionality of the President’s attempt to dissolve Parliament. On one level, this question can be answered by reference to the text of article 70 of the Sri Lankan constitution, which states that “the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour.” As of November 2018, the requirement of four years and six months had not yet been fulfilled and there was clearly no parliamentary resolution requesting the dissolution. Hence, it is not hard to conclude that the dissolution contravened the constitutional requirements. But when a president, like Sirisena has, ignores the express provisions in the constitution and purports to ‘abuse’ his power of dissolution, is there political or legal recourse? How can the constitutional requirement be enforced?

Indeed, under the Sri Lankan constitution, the president is “responsible” to parliament for his actions, but not “answerable” to it.[1] Recourse to the courts could be available in jurisdictions were the constitution is supreme. Indeed, article 125 of the Sri Lankan constitution states that the Supreme Court “shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution” and “make any such consequential order as the circumstances of the case may require”. Article 118(a) also states that the Supreme Court shall exercise jurisdiction in respect of ‘constitutional matters’. However, the status of constitutional review in Sri Lanka is somewhat uncertain – the initial 1946 Constitution allowed for constitutional review but the 1972 Constitution removed that. The current 1978 Constitution, which instituted the semi-presidential system and is often viewed as the third independent constitution of Sri Lanka, only explicitly allows for judicial review of pre-enactment bills in the abstract.[2] Nihal Jayawickrama has proposed the creation of a constitutional court to consolidate the courts’ jurisdiction over constitutional matters.[3] Nonetheless, despite the shaky legal foundation of constitutional review, the Supreme Court, in issuing the interim order against the dissolution of parliament, has not shown hesitance in asserting its role as the final arbiter of constitutional matters. The Court’s intervention appears to be key in reigning in the president’s powers.

2. Parliament or Presidential System: Million Dollar Question or Red Herring?

The second question that arises is whether the current constitutional crisis is itself a function of a design flaw in Sri Lankan’s constitutional system with respect to what form of government to adopt. As a former British colony, Sri Lanka started out with parliamentary government modelled after the Westminster form. It later switched to a presidential system in 1978 amidst a floundering economy and weak coalition governments. Rajesh Venugopal argues that “Sri Lanka’s executive presidency was born out of an elite impulse to create a more stable, centralised and authoritarian political structure that would overcome and reverse the negative economic effects of a populist electoral democracy.”[4] Economic growth and political control were therefore primary aims for the change.

The result is a strong form of semi-presidentialism with power greatly concentrated in the office of the president. Directly elected by the people, the Sri Lankan president is not only the Head of State, but also Head of Government/Cabinet, and the Commander-in-Chief of the Armed Forces. To contrast, the French president is the head of state but the Prime Minister (who is appointed with the approval of Parliament) is the head of government. Sri Lanka’s switch to strong presidentialism is widely regarded as having led Sri Lanka into an era of authoritarian government. It gave then-President Rajapaksa’s government the opportunity to institute the 18th Amendment to the constitution in 2010 which further aggrandized the presidency. The amendment abolished the two-term limit for the presidency, and repealed parts of the 17th Amendment that sought to constrain presidential powers by making it mandatory for a president to obtain the approval of a Constitutional Council for the appointment of superior judges, the attorney general and auditor general, as well as heads of independent commissions such as the election commission and the human-rights commission. The role of the Constitutional Council and the two-term limit was restored after the 19th Amendment under President Sirisena, whose campaign promise was precisely to stem the abuse of powers under the presidential system.

Presidentialism, and even semi-presidentialism, has been criticized precisely for what some considers to be key to its success – the centralization of power as this could be exploited by a strong personality at the helm of the government and state. Indeed, Bruce Ackerman, in an in-depth analysis of the differences between presidential and parliamentary system, argues that one major disturbing aspect of an elected executive presidency is that it “predisposes the system to a politics of personality, and especially the politics of a single personality.”[5] He thus argues that while prime ministers may also wield enormous power, the “parliamentary system does a better job of keeping these personalistic tendencies in check.”[6]  This is because the Prime Minister needs to sustain an ongoing majority in the legislature, and the party could be quick to abandon him when his personality could become an electoral liability. The parliamentary system has a moderating influence insofar as the prime minister needs to bring the party along with his/her initiatives and to cross party lines where necessary to keep his/her majority.[7] Furthermore, the prime minister is not usually able to claim a “unique personal mandate from the people” since s/he was elected on the same ballot as the rest of parliament and his/her cabinet members. Cabinet members may themselves be as popular or even more than the prime minister.[8]

The apparent stability of the parliamentary system and seemingly weaker tendency towards outsized personalities have led to arguments that it would better suit a developing democracy like Sri Lanka. For instance, Ashwini Vasanthakumar and Rehan Abeyratne argued in 2015, shortly after Sirisena’s victory, that a key constitutional reform needed to “move Sri Lanka away from authoritarianism” and allow for greater power sharing in the country is to reinstate a parliamentary system of government. They argue that the abolition of the executive presidency would put in place certain constraints against the concentration of power in one individual. There would also be scope for greater power sharing by allowing for more minority representation in Parliament. Vasanthakumar and Abeyratne did however acknowledge that a parliamentary system may again lead to weak coalition government saddled with in-fighting and coalition battles, which would speak against it.

While the 19th Amendment passed in 2015 as part of Sirisena’s constitutional reforms to abolish the executive presidency did not restore parliamentary government, structurally, the resulting constitution contains certain limits to the president’s powers. Article 42(4) of the constitution maintains that the President “shall” appoint as Prime Minister “the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament” and a new article 43(2) states that the President “shall” appoint Ministers from among Members of Parliament “on the advice of the Prime Minister”. Furthermore, after the 19th Amendment, the President has no constitutional right to dismiss the Prime Minister. There are only three ways by which a prime minister ceases to hold office where parliament has not been dissolved. First, according to article 46(2), the Prime Minister “shall continue to hold office” unless he resigns; or secondly, when he ceases to be a Member of Parliament. Thirdly, the prime minister ceases to hold office under article 48(2) if Parliament rejects the Statement of Government Policy or the Appropriation Bill or passes a vote of no-confidence in the Government. As such, even though symbolically, the President is the head of everything, his discretion over the prime ministerial appointment is constitutionally limited by Parliament. Asanga Welikala thus points out that the Sri Lankan semi-presidential system requires power-sharing within the executive, which would limit presidential powers.[9]

The design question is an important one. However, lest one thinks that parliamentary system, is immune to such power-struggles, it bears pointing out that the current constitutional conundrum in Sri Lanka with the sacking of the prime minister actually bears echoes of other constitutional crises in the commonwealth world which practice the parliamentary system. Similar crises have arisen in Malaysia (albeit at the state level),[10] in Nigeria,[11] as well as in Australia.[12] These all took place within the context of parliamentary government. Parliamentary government itself is insufficient. The key still remains in whether there are constitutional limits and if these limits are supported by a strong constitutional culture.

3. Conclusion

In the face of what appears to be a global diffusion of authoritarianism and populism, the resilience of constitutions[13] and democratic backsliding have become critical areas of study for scholars. Constitutional retrogression is set in place when those who gain power then alter the design to favour themselves, which, as Horowitz observes, is by no means unusual.[14] Whether democratic backsliding occurs as a rapid and near-complete collapse of democratic institutions or in a more subtle and incremental way, as Huq and Ginsburg have identified, the concerns about democratic backsliding are very real.[15] It is perhaps best to see the democratic constitution as an ongoing “tradition-building project” that needs to be constantly cultivated.[16]

President Sirisena’s actions  may be seen as an act of power, but it may also be seen as an act proceeding from a place of weakness. That he sought to dismiss the Prime Minister reflects that, on some level, the premiership is an important political position. Furthermore, by seeking to dissolve parliament, supposedly to avoid a vote of no-confidence against his ‘new appointee’, this may be seen as a recognition that parliament does impose a limit on presidential powers. That Parliament did vote against Rajapaksa and that Rajapaksa’s own supporters sought to derail the vote further suggests their implicit concern about the potential delegitimating impact of such a vote. Furthermore, despite the ambiguity surrounding its judicial review powers, the Supreme Court did stand up to the president’s blatant violation of the constitution. What is even more important is that thousands have since marched in protest against president’s decision to sack the prime minister. The constitution may have been defied and even instrumentalized, but it is not irrelevant. A strong constitutional culture that is intolerant of acts of impunity will be crucial in stemming abuses of powers, perhaps more so than constitutional design.

The Sri Lankan situation remains extremely tense, with a further clashes in Parliament amidst a second passing of a no-confidence motion against Rajapaksa. Asanga Welikala has argued that the best way out of the current crisis is for the political parties to agree to a dissolution of Parliament and to a date for fresh elections. Whichever way forward, the constitutional salvation[17] of Sri Lanka will ultimately lie in the hands of those who are willing to stand up to blatant attempts at subverting its constitutional rule of law.

Suggested citation: Jaclyn L. Neo, Constitutional Chaos in Sri Lanka: Constitutional Retrogression or Working Out of its Constitutional Salvation? Int’l J. Const. L. Blog, Nov. 29, 2018, at: http://www.iconnectblog.com/2018/11/constitutional-chaos-in-sri-lanka-constitutional-retrogression-or-working-out-of-its-constitutional-salvation/

[1] Rehan Abeyratne, ‘Centralising Authority: Executive Power in India and Sri Lanka’, in Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects (Asanga Welikala ed., Centre for Policy Alternatives, 2015).

[2] Ibid.

[3] Nihal Jayawickrama, ‘Establishing a Constitutional Court: The Impediments Ahead’, CPA Working Papers on Constitutional Reform No. 13 (5 January 2017).

[4] Rajesh Venugopal, “Democracy, development and the executive presidency in Sri Lanka”, 36(4) Third World Quarterly 670 (2015), at 673.

[5] Bruce Ackerman, ‘The New Separation of Powers’, 113(3) Harvard Law Review 634 (2000), at 657.

[6] Ibid.

[7] Ibid, at 659.

[8] Ibid, at 661.

[9] Asanga Welikala, ‘The Dissolution of Parliament in the Constitution of Sri Lanka’, Groundviews (12 November 2018), https://groundviews.org/2018/11/12/the-dissolution-of-parliament-in-the-constitution-of-sri-lanka/

[10] In Malaysia, heads of state dismissing the chief ministers occurred in 1966 in Sarawak, in 1985 in Sabah, and in 2009 in Perak. Andrew Harding, ‘Crises of Confidence and Perak’s Constitutional Impasse’, The Malaysian Insider (8 June 2009),   http://www.malaysianbar.org.my/general_opinions/comments/crises_of_confidence_and_peraks_constitutional_impasse_andrew_harding.html. Jaclyn L. Neo, ‘Change and Continuity: The Constitutional Head of State and Democratic Transitions in Malaysia’, 5 Malayan Law Journal i (2012).

[11] Adegbenro v Akintola [1963] 3 W.L.R. 63.

[12] Governor-General sacked of Australian Prime Minister Gough Whitlam in 1975, sparking off a constitutional crisis. Kenneth R. Mayer & Howard H. Schweber, Does Australia Have a Constitution? Part I: Powers – A Constitution Without Constitutinalism, 25 UCLA Pac. Basin L. J. 228 (2008).

[13] See e.g. Xenophon Contiades & Alkmene Fotiadou, ‘On Resilience of Constitutions. What Makes Constitutions Resistant to External Shocks?’ 9(1) Vienna Journal of International Constitutional Law 3 (2015).

[14] Donald L. Horowitz, Constitutional Design: Proposals Versus Processes in The Architecture of Democracy: Constitutional Design, Conflict Management, and Democracy 15 (Andrew Reynolds ed., 2002).

[15] Aziz Z. Huq & Tom Ginsburg, How to Lose a Constitutional Democracy, 65 UCLA Law Review 78 (2018).

[16] Jürgen Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’ (2001) 29 Political Theory 766.

[17] Borrowing from terms used by the Privy Council in McCawley v The King (1920) 28 CLR 106, where it opined in relation to the Australian constitution that each newly independent community whose constitution is modelled after the British model would eventually “work out their own constitutional salvation”.

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Published on November 29, 2018
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