[Editor’s Note: In light of recent constitutional (or some may say, unconstitutional) developments, I-CONnect is pleased to feature this timely symposium examining constitutional struggles in Asia. This is part I of a five part series, in addition to the Introduction.]
— Mario Gomez, Executive Director, International Centre for Ethnic Studies, Sri Lanka
Sri Lanka once more, entered the fold of constitutional authoritarianism with the passage of the 20th Amendment to the constitution in October 2020. Its democratic spring of 2015 did not endure, as internal squabbles within the previous ruling coalition resulted in ineffective governance, a constitutional crisis, and a serious breach of national security. This resulted in the coalition being voted out of power, first in the Presidential elections of 2019 and then in Parliamentary elections in August 2020, with a new regime taking control of state power. One of the first acts of the new government was to pass the 20th Amendment, which returned the country to a hyper-Presidential system with power centralized in a powerful elected Executive President.
The return to hyper-Presidentialism reflects one of the country’s enduring constitutional questions: what is the appropriate balance of power to be struck between the executive and legislature? Constitutional politics in Sri Lanka has also revolved around two other central questions: how should power be shared between the majority and the minority communities; and what should be the role and place of Buddhism in the constitution? This contribution looks at the impact of the recent 20th Amendment to the constitution on these three constitutional questions and contends that social cohesion and constitutional democracy will require, at a minimum, a reimagination of the first two questions, even if the third, the place of Buddhism, remains untouched.
The Executive Presidency was established first by a constitutional amendment in 1977 and retained when a new constitution was adopted in 1978. The 1978 constitution created a powerful Executive Presidency with very few checks and balances, a constitutional structure that has now been restored by the recent 20th Amendment. The 1978 constitution also introduced proportional representation, precluded judicial review of legislation, and reconstituted the higher courts, dismissing some superior court judges and demoting others.
The political transition of 2015 facilitated a radical transformation of the 1978 constitution by way of the 19th Amendment. The amendment reduced the President’s and Parliament’s term from six to five years; restored the two-term limit on holding Presidential office; and provided that the President cannot dissolve Parliament before four and a half years into its term. The President’s official acts were made subject to the Supreme Court’s fundamental rights jurisdiction, he or she was precluded from holding cabinet portfolios, and the size of cabinet was capped at 30. It also reintroduced the Constitutional Council, which either proposed or vetted appointments to independent commissions and the judiciary. The 19th Amendment was passed within four months of the 2015 Presidential election where a previously highly popular President was deposed by his rival. Of the 225-member legislature, 215 members voted in favour of the amendment across the political spectrum. The political momentum generated by this transition helped build consensus across party lines and facilitated the transformation of the constitution. Had it been postponed to a later stage, the change would not have occurred.
For a brief period, Sri Lanka experienced a vibrant constitutional culture, tolerance of dissent, and the re-emergence of robust institutions. However, poor governance, rifts between the President and Prime Minister, and the Easter bombings of April 2019 stymied progress, and created momentum for a return to a strong Presidential system with a growing perception that the hybrid system was not working.
The 20th Amendment has unraveled the democratic gains of the 19th Amendment. The President has now been given the power to dissolve a democratically elected legislature after half its term, assume any Ministerial post, and has the untrammeled power to make appointments to the judiciary and the independent commissions. A last-minute change saw the size of the Court of Appeal and Supreme Court increased. This resulted in the President appointing half the members of the two most important courts almost immediately.
Power-sharing with the Tamil minority has been the other divisive issue in constitutional reform as Tamils have consistently sought autonomy for the Northern and Eastern provinces. In the Northern-Province, Tamils make up almost 90% of the population and in the Eastern-Province constitute roughly one-third of the population. The Tamil claim for autonomy is rooted in the idea of discrimination: mainly in employment opportunities in the public sector; a denial of language rights and Tamil identity; and access to an equal share of resources. However, the claim of discrimination is contested by many Sinhalese who instead contend that the Tamils were a privileged minority during colonial times and even argue for affirmative action for the Sinhalese to reverse this discrimination.
The constitutional changes in 2015 which reduced the powers of the President were only possible, because the Tamil parties did not press the issue of power-sharing. Prior to independence in 1947, the debate focused on Tamil participation in the central legislature. This was reflected in the Donoughmore Constitution of 1931 that introduced a State Council which consisted of 18 Sinhalese and 19 minority members in a 37-member State Council, a balance aimed at preventing the dominance of the majority. Prior to that, literary critic and colonial administrator Leonard Woolf, SWRD Bandaranaike (who became Prime Minister in 1956), and the Kandyan-Sinhalese had urged a federal model for Sri Lanka. However, it was not till the emergence of the Federal Party in the 1950s, that Tamil political actors began to actively advocate for a federal state and geographical autonomy. Positions hardened after the adoption of the 1972 constitution that explicitly introduced the idea of a unitary state and made Sinhala the official language. This resulted in the ‘Vaddukkodai Resolution’ of 1976 where parts of the Tamil community called for a free, sovereign, and secular separate state.
The state’s decisive military victory over the Tamil Tigers in 2009 resulted in power-sharing and federalism slipping off the reform agenda. Although there has been a plethora of proposals to share power since the 1950s, these have all been scuttled through pressure from Sinhala-Buddhist forces, including the clergy. In 1987, under pressure from India, the state agreed to a system of provincial councils with limited autonomy for the nine provinces – a system that has not worked well in practice. Powers relating to the control of land, policing, and the merger of the North and East remain contentious.
Buddhism and the Constitution
The third constitutional struggle has been waged around the place of Buddhism. Many Buddhist groups advocated for the protection of Buddhism in the country’s first post-independence constitution. This did not occur and instead the constitution included Section 29, which prohibited discrimination on the basis of ethnicity or religion.
The 1972 constitution for the first time gave ‘foremost’ place to Buddhism. For one of the architects of the constitution, this clause on Buddhism was a compromise, between those who advocated that Buddhism be made the state religion, and those who favoured a secular state. The 1978 constitution has retained this provision on Buddhism.
Given the ethno-religious politics and violence of the past 40 years, it is unlikely that the place of Buddhism in the constitution could be dethroned. Tamil political actors have privately expressed the view that they could coexist with the favoured position for Buddhism, so long as there exist guarantees on freedom of religion and belief, and they can extract concessions on power-sharing.
Reimagining the State
Despite periods of constitutional manipulation and authoritarianism, the electorate has enabled peaceful transitions of political power from one regime to another in 1994 and 2015. This is partly explicable through the country’s long experience with universal franchise, going back to 1931.
Sri Lanka requires power-sharing for at least two reasons. First, democratic constitutional government requires a sharing of power among the four organs of government: the judiciary, independent fourth-branch institutions, and a legislature that can act as a check on the executive. Secondly, the country’s ethnic politics has for over a century struggled to ensure that the majority community does not dominate the minorities. Power-sharing based on geographical autonomy, whether it be symmetrical or asymmetrical, would be one way of preventing majority dominance. The 20th Amendment, by concentrating power in a powerful executive, forecloses both these options: balanced constitutional government and geographical-based autonomy.
In a plural society, constitution-making should seek to build consensus and social cohesion. Constitution-making that is partisan and privileges one ethno-religious group over the other is unlikely to create social cohesion. Sri Lanka’s 26-year war with the Tamil-Tigers was a consequence of the failure of a majoritarian state to reimagine constitutional government in the country.
A replacement of the constitution will require a special Parliamentary majority and approval at a referendum. This is unlikely in the foreseeable future. Incremental constitutional reform is a more practical option. A return to constitutional democracy will be aided by incremental reforms that seek to re-introduce a more balanced form of government among the four organs of government; develop pockets of autonomy for the North and the East of the country that respond to Tamil and Muslim aspirations for self-governance; as well as reintroduce the idea of constitutional supremacy and permit judicial review of legislation.
As David Landau and Miguel Schor recently observe, democracies are fragile and entail hard work. The country has previously shown democratic resilience after periods of authoritarianism. However, resilience alone may not suffice; civil society and the state may need to show constitutional imagination too if democracy and constitutional government are to return to the country and thrive.
[Note: An earlier version of this post was presented at a Webinar on Constitutional Struggles in Asia (1 – 3 December 2020). The event was part of a larger research project in collaboration with the Centre for Asian Legal Studies, National University of Singapore, the College of Law, Australian National University, and the Federal Law Review.]
 See Mario Gomez, The Courts Respond to Executive Tyranny in Sri Lanka’, Int’l J. Const. L. Blog, Jan. 24, 2019, at: http://www.iconnectblog.com/2019/01/the-courts-respond-to-executive-tyranny-in-sri-lanka
 Neelan Tiruchelvam, ‘The Politics of Federalism and Diversity in Sri Lanka’. In Yash Ghai (Ed.) ‘Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States’, (Cambridge University Press, 2000) pp 197 – 218.
 Rohan Edrisinha, Mario Gomez, V T Thamilmaran, and Asanga Welikala, Power-Sharing in Sri Lanka: Constitutional and Political Documents, 1926-2008 (Berghof Foundation for Peace Support, 2008) pp 25 – 103.
 See Dian AH Shah, Constitutions, Religions and Politics in Asia: Indonesia, Malaysia and Sri Lanka (Cambridge University Press, 2017)for a discussion of the constitutional drafting process in relation to the inclusion of the Buddhism clause in the 1972 and 1978 constitutions.
Suggested citation: Mario Gomez, Drifting Between Democracy and Despotism in Sri Lanka, Int’l J. Const. L. Blog, Feb. 20, 2021, at: http://www.iconnectblog.com/2021/02/symposium-constitutional-struggles-in-asia–part-i–drifting-between-democracy-and-despotism-in-sri-lanka/