—Dian A H Shah, National University 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 2019, see here.]
On 17 November 2019, Sri Lanka emerged from its 8th presidential election with a new president and a new government regime. Gotabaya Rajapaksa, the Defense Secretary under Mahinda Rajapaksa’s administration, won the hard-fought election with 52.25% of votes, leaving his opponent trailing with only 41.99% of votes. This stands in stark contrast to the 2015 presidential election – the election that triggered Sri Lanka’s return to democracy – where Maithripala Sirisena unexpectedly defeated Mahinda Rajapaksa by only a 3.7% margin. Armed with a solid electoral mandate, within days of his victory, Gotabaya announced the appointment of former President Mahinda Rajapaksa as the Prime Minister, following the resignation of Ranil Wickremesinghe who heads the opposing party, UNP. Although the Rajapaksa presidency is still in its early days, this appointment has triggered anxieties over the durability of the constitutional and democratic renovations that began in 2015.
In this post, I shall focus on Sri Lanka’s democratic experience with both backward and forward-looking reflections. This is because the Sri Lankan experience offers poignant lessons for countries in the region that have undergone or are undergoing political change (such as Malaysia), or even countries that are working their way through democratization and its attendant challenges. It is a story of missed opportunities amidst political power struggles, as well as small but crucial victories through incremental constitution-building.
The January 2015 political change in Sri Lanka came about against all odds. In the lead up to the presidential elections, economic struggles accompanied long-standing issues of corruption, declining rule of law, and abuse of power. The then-incumbent government was politically dominant due to its being credited for ending decades of civil war in the country, and it was also extremely powerful as politics and governance revolved around the executive presidency. In that period, the 18th Amendment to the Constitution was engineered (and subsequently passed in Parliament) to remove the two-term limit on the presidential office and to restore the President’s unfettered powers of appointment to key public institutions.
Thus, one of the first steps that the newly-elected President Sirisena took – consistent with his electoral pledge to enhance good governance and the rule of law – was to reform the executive presidency. The 19th Amendment was passed in April 2015 with cross-party political consensus. 215 out of 225 members of Parliament voted in favor of the Amendment, despite deep divisions between those who were determined to retain a hyper-presidential system on the one hand, and those who sought to abolish the executive presidency altogether. The 19th Amendment, which retains the executive presidency albeit with substantially trimmed powers, therefore embodied a cross-party compromise amongst the dominant Sri Lanka Freedom Party (that was, to be sure, fractured between Rajapaksa and Sirisena loyalists), the minority United National Party (UNP), and other ethnic minority parties (ie, Muslim and Tamil parties). This can be considered a crucial victory for the emerging Sri Lankan democracy, because the lack of fluidity in cross-party alliances could impede much-needed constitutional and democratic renovation.
Consider the recent experience in Malaysia, as an example. In April 2019, almost a year following the historic political change in May 2018, the government tabled a constitutional amendment to fulfil its pledge to restore (at least textually) the position of Sabah and Sarawak as equal partners with the Federation of Malaya and not merely as constituent states in the Federation of Malaysia as a whole. Substantively, it was hoped that the amendment would pave way for restoring the spirit of the 1963 Malaysia Agreement, an international treaty that established the Federation of Malaysia, which spells out a list of autonomous powers and rights enjoyed exclusively by the two states in matters such as religion, language, immigration, and fiscal management. The amendment, however, fell through as the government coalition lacked 10 votes to garner the requisite two-thirds majority to pass a constitutional amendment. It is beyond the scope of this post to analyze the constitutional politics that drove the failure of the amendment, but suffice it to say that this remains one of the biggest blows to the government’s reform agenda, and Malaysia’s efforts at reform remain plagued by rigid party divisions and alliances.
Returning to the Sri Lankan experience, among other provisions, the 19th Amendment restored the two-term limit on the presidential office; and provided that the President can no longer dissolve Parliament before four and a half years of its term and that he is required to appoint a Prime Minister who can command the confidence of the majority of the members of Parliament. The Amendment also instituted mechanisms to curtail potential abuses of power by the President. In particular, the President no longer possesses blanket immunity for his official acts, and the Constitutional Council was reintroduced with substantial powers, which include the authority to make recommendations on the appointment of members of Independent Commissions and to approve the President’s nominees to the higher courts and other key public offices such as the Attorney-General and the Inspector-General of Police. It addition, just over a year after the passing of the 19th Amendment, the Parliament passed the Right to Information Act in an effort to enhance access to information, government transparency, and the ‘opaque processes of public decision-making’.
Missed Opportunities and Constitutional Issues Ahead
The incremental reforms in the first year and a half of the 2015 political change were a prelude to a more ambitious, wholesale constitutional reform project. That project initially took off in 2016 when Parliament constituted itself as a Constitutional Assembly, but it later suffered a slow death. Consensus proved difficult to come by in crucial matters such the nature of the state (ie, whether it is a ‘unitary’ or ‘federal’ state) and devolution of power. This was magnified by changing political dynamics and circumstances, marked – chiefly – by the feud between President Sirisena and Prime Minister Wickremesinghe, poor leadership in the government, and Rajapaksa’s recovered influence, particularly amongst the Sinhalese majority.
The political power struggle not only hampered opportunities for reform, but it culminated in the October 2018 constitutional coup, where Sirisena announced that his party had withdrawn from the governing coalition, which meant that the Cabinet stood dissolved and that he could appoint a new Prime Minister. He immediately appointed Mahinda Rajapaksa as Prime Minister, unceremoniously removed Wickremesinghe, and prorogued Parliament for two weeks. When it became clear that Rajapaksa struggled to cobble the necessary majority support in Parliament, Sirisena dissolved the legislature and fixed parliamentary elections for January 2019.
All this was of course halted by the Supreme Court in December 2018, when it issued an interim stay on the dissolution. In this regard, the Supreme Court emerged as a crucial checks and balances institution against unconstitutional exercises of power by the executive. Sirisena’s actions in this regard bore signs of a President who seemed hesitant in being bound by the ‘rules of the game’ applicable to his office, especially when his political interests and security were at stake. What can be surmised from this series of events is this: where deep-rooted institutional practices as well as the constitutional and political culture have not evolved along with structural reforms or the democratic agenda, challenges to constitutional commitments may emerge, testing the durability of those commitments and existing constitutional institutions. To be sure, Sri Lanka had a comparably stronger democratic culture (compared to, for instance, Malaysia) until the war: universal suffrage existed as early as 1931; there was far better observance of the traditions of parliamentary democracy; and there was fairly regular alternation in government between the UNP and SLFP. The decades of civil war, however, changed this.
As Sri Lanka now begins its journey under a new government, there are at least two looming constitutional issues ahead. The first concerns the endurance of the constitutional commitments etched in the 19th Amendment. The annulment of the Amendment would undo the improved balance of power between the executive and the legislature and the checks on presidential powers. At stake, therefore, is the survival of the renovated constitutional institutions from 2015. Second, there are fears about suppression of fundamental rights, particularly the freedom of expression, and the protection of minorities. These anxieties stem from the experience under the previous Rajapaksa administration, and the fact that Gotabaya Rajapaksa won overwhelmingly on the votes of the Sinhalese majority. Moreover, Gotabaya is known for (and perhaps even voted in because of) his tough stance in national security issues, having overseen the defeat of the Tamil Tigers that ended the civil war. If his inauguration speech is any indication, national security will be a priority under the new government, and Sri Lanka appears set to embark on a path of exclusivist Sinhala-Buddhist majoritarianism. It will be interesting, therefore, to see how the government seeks to balance these against its pledge to uphold law and justice and to protect the rights of all, regardless of their religious and ethnic identities.
Suggested citation: Dian A H Shah, Navigating Constitution Building and Political Transitions in Sri Lanka, Int’l J. Const. L. Blog, Nov. 27, 2019, at: http://www.iconnectblog.com/2019/11/navigating-constitution-building-and-political-transitions-in-sri-lanka/
 Election Commission of Sri Lanka, ‘Result of Presidential Election – 2019’ <https://elections.gov.lk/web/wp-content/uploads/election-results/presidential-elections/PRE_2019_All_Island_Result.pdf>.
 18th Amendment to the 1978 Constitution of the Democratic Socialist Republic of Sri Lanka.
 Asanga Welikala, ‘Sri Lanka: The Nineteenth Amendment to the Constitution – from start to finish’ (Constitutionnet, 26 May 2015) http://constitutionnet.org/news/sri-lanka-nineteenth-amendment-constitution-start-finish.
 This was part of the new Pakatan Harapan (Pact of Hope, or PH) government’s 100-day reform agenda. The pledge was that the government would restore’ Sabah and Sarawak’s status as equal partners in the Federation of Malaysia
 For instance, under the 1963 Malaysia Agreement, English (as opposed to the Malay language) would remain the official language for Sabah and Sarawak; the two states would retain control over immigration (thus allowing them to control entry by Malaysians from other states); and although Islam is constitutionally enshrined as the ‘religion of the Federation’, this would not apply to Sabah and Sarawak.
 Another example is the failure to repeal the draconian Anti-Fake News Act, which was passed under the former Barisan Nasional (BN) government several weeks before the May 2018 elections. The PH government repealed the law in the lower house of Parliament with a simple majority, but it was later defeated in the upper house, where a majority of its members are from the BN coalition.
 The 1978 Constitution originally stated that the Prime Minister may be removed from office “by writing under the hand of the President”. This provision was also removed by the 19th Amendment, and the conditions under which the Prime Minister and his Cabinet would cease to hold office are not explicitly spelled out in the Constitution. See Article 48(2) of the 1978 Constitution.
 These include the National Police Commission, the Elections Commission, the Human Rights Commission, the Public Service Commission, and the Judicial Service Commission. Art 41B of the Constitution.
 Mario Gomez, ‘The Right to Information and Transformative Development Outcomes’ (2019) 12(3) Law and Development Review 837, 840.
 See Asanga Welikala, ‘Sri Lanka’s (un)ending road to a new Constitution: Technical progress, political collapse’ (Constitutionnet, 29 January 2019) <http://constitutionnet.org/news/sri-lankas-unending-road-new-constitution-technical-progress-political-collapse>.
 See Mario Gomez, ‘The Courts Respond to Executive Tyranny in Sri Lanka’ (I-CONnect, 24 January 2019) <http://www.iconnectblog.com/2019/01/the-courts-respond-to-executive-tyranny-in-sri-lanka/>.
 Sandasen Marainghe and Nimal Wijesinghe, ‘An oasis for all communities and religions – President’ (Daily News, 19 November 2019) <https://www.dailynews.lk/2019/11/19/local/203220/oasis-all-communities-and-religions-president>.