By Prof. Jayadeva Uyangoda

The government has taken steps to draft a new constitution for Sri Lanka, which is likely to replace the existing constitution in toto, including its recently passed 20^th Amendment. Thus, a Third Republican Constitution is underway for Sri Lanka. To what extent the Third Republican Constitution would be different from the Second is not yet clear. President Rajapaksa and constitutional experts in his team have not yet shared with the people any basic ideas which they might have for a new Republic or a new constitution.

However, the 20^th Amendment and the speeches made by some of government’s front runners during the debate on the 20^th Amendment give strong clues to the basic orientation of the forthcoming Third Republic for Sri Lanka. The new constitution is very likely to continue the post-democratic thrust of the 20^th Amendment in its intent as well as content. The new constitution will thus be constructed around the basic framework that the Supreme Court as well as Parliament have already approved.

A minor change that can be expected is about the division of powers between the President and the Prime Minister. The Prime Minister is likely to given a little more power to ensure that whoever gets that position in future would not feel slighted. Two other changes are also quite likely. The first is the alteration of the existing system of Proportional Representation, to bring in some elements of the mixed electoral system. The second is the reduction of the powers of provincial councils as laid down by the 13^th Amendment. A 13 minus – type change is on the cards.

Thus, in its overall outlook, the Constitution of the Third Republic  is not likely to be fundamentally different from the original 1978 Constitution and its 18^th and 20^th Amendments. However, there can be subtle new features with far reaching consequences. Clues to these emerging directions of the Third Republic can be discerned from four sources, namely (a) the arguments that have been made against the 19^th Amendment in Parliament and elsewhere, (b) legal arguments made during the fundamental rights cases on the removal of the Prime Minster and the Cabinet in October 2018 defending President Sirisena’s actions, (c) legal arguments made during the fundamental rights cases on the parliamentary elections in April this year, and (b) the overall political project of the class forces that constitute the social and ideological core of President Gotabaya Rajapaksa’s team.

A new state vision

A new body of legal-political thought had begun to take shape quietly in Sri Lanka during the past couple of years or so, envisioning a new state model. This is a point missed by even alert political observers. The constitution for the new state model would (a) move decisively away from the hybridity of the 19^th Amendment, (b) shed the vestiges of the Westminster-type cabinet-parliamentary government, and (c) establish one, undisputed centre of State power in the Executive headed by the President with a direct popular mandate and being the central repository of people’s sovereignty.

This newly emerged political-constitutional thought seems to have been shared by (a) a section of the political class that was seeking political power, (b) an influential community of lawyers and legal scholars, (c) Sinhalese nationalist leaders, and (d) the newly emerged class of wealthy industrialists, traders and professionals.

The project of ‘State capture’ that had evolved during the period 2015-2019 among these constituencies as an oppositionist coalition required a new vision for the state. That vision seems to have been conceptualized in direct opposition to the ‘liberal democratic’ political ideology of the Yahapalanaya coalition and the liberal constitutionalist assumptions that shaped the basic structure of the 19^th Amendment.

The governance failures of the Yahapalanaya administration, power struggles within the Yahapalanaya coalition government, and the emergence of two competing power centres within the government in 2018-2019 have also been interpreted as direct outcomes of the specific hybrid governance structure established under the 19^th Amendment. One interpretation of the governance crisis highlighted by critics during 2018-2019 is that grafting the Westminster model of Cabinet-parliamentary government to the existing presidential system was the fundamental mistake of the 19^th Amendment.

It was against this backdrop that the post-liberal and post-democratic character of the oppositionist vision of the state and the constitution took a clear ideological shape in 2018-2019. The 20^th Amendment is an interim product of this political shift. The proposed new Constitution would be the logical outcome of the backlash against the failed and half-hearted liberal-democratic experiment of the Yahapalanaya coalition of 2015-2019.

New vision and directions

A few tentative observations one can make on the current directions of Sri Lanka’s political and constitutional change would be as follows:

• A push for greater constitutional entrenchment of executive-presidential authoritarianism originally conceptualized in the 1978 Constitution and later enhanced in the 18^thand 20
• Erasure of the institutional vestiges of the Westminster model of Cabinet-parliamentary government, particularly in relation to the role and function of parliament and the reduction of parliament’s control of public finance.
• Elimination of another residue of Westminster parliamentary democracy, namely institutional checks on the executive.

In this scenario, Sri Lanka’s Third Republican Constitution, which emerges as a direct negationist response to the crisis of the 19^th Amendment, is likely to assume a distinct identity, different from the semi-Presidential model established under the Second Republic of 1978. Two new features that the framers of the new Constitution might even consider are:

(a) bringing of the legislative sovereignty of parliament under some form of executive limitation, as in the US, and,

(b) enabling the President to appoint to the cabinet individuals who are not members of the legislature, as in France.

Clues to these possibilities emerged in President Rajapaksa’s Corona crisis management strategy. There was also a very subtle argument developed after March this year that President’s mandate from the people should take primacy over the mandate of the legislature. In that argument, as strange as it may sound though, parliament’s popular mandate is divided among 250 individuals whereas the Presidential mandate is for just one person.

Questions about constitutional hybridity

During the parliamentary debate on the 20^th Amendment, the government’s line of attack on the 19^thAmendment re-articulated a point that President Sirisena and many others occasionally highlighted by words and deeds. It is the refusal by many Sri Lanka’s politicians today to accept that democratic governance, with its built in checks and balances and mechanisms for accountability, is a slow process of governance that requires an ethic of compromise through bargaining and negotiation between different centres of power within the state structure. The unusually hybrid nature of the 19^th Amendment and its model of governance could work optimally only if the politicians of the ruling coalition, despite their so-called mandates, had a commitment to that inter-personal and inter-institutional ethic of working through negotiation, bargaining and compromise as well as constitutionally laid down checks and balances.

Indeed, the hybrid model of the 19^th Amendment that combined features of both presidential and cabinet-parliamentary government, had several anomalies and ambiguities. The reason was that the 19^th Amendment was a product of a series of political compromises, compromises made to meet the agendas of different stakeholder constituencies within the coalition. Therefore, the proper working of the 19th Amendment required, as in the case of most hybrid constitutional models, either a high degree of democratic accommodation, based on the ethic of compromise, among diverse centres of power within the government, or one autocratic centre of power that substituted autocracy for democratic accommodation.

President J. R. Jayewardene recognized this anomaly in the hybrid system he himself created in the original 1978 Constitution. (Lest we forget, the First Republican Constitution of 1972 was also a hybrid one, combining features of Westminster, Republican and Socialist constitutions!). Jayewardene resolved the anomaly he faced by means of autocratic centralization of decision-making into his own hands. The fact that he obtained and kept in his vault undated letters of resignation from all the ruling party MPs, including those of his very powerful Prime Minister and equally assertive Cabinet Ministers, is only a footnote to that story.

Interestingly, one point that became quite clear during the parliamentary debate on the 20^th Amendment is that the leaders of the present administration are quite averse to governance anomalies caused by constitutional hybridity. They seem to think that bargaining, negotiation, and accommodation retards efficient, effective, result-oriented, direct, and out-of-the box practices of governance that Sri Lanka is in need of in the current historical moment. These are the kind of traces of the post-democratic constitutional ideology that has slowly matured in Sri Lankan society during the crucial two years of 2018 -2019.

The point then is that the government of President Gotabaya Rajapaksa has embarked on a very serious state reform project through a new constitution, with an ideology which is still articulated in a somewhat subdued manner. However, its political goals are quite clear, that is, setting up of a strong executive-presidential Republic. To achieve that goal, the government is likely to promulgate a new constitution that will (a) incorporate the 20^th Amendment as its core, (b) remove any ambiguities concerning President’s powers as the supreme repository of people’s sovereignty vis a vis the Cabinet and the Parliament, and (c) make the Third Republic of Sri Lanka more presidential than what it has been under the 1978 Constitution.

Options for democrats

With its secured two-thirds majority in Parliament, as demonstrated during the voting on the 20^th Amendment, the government is well set to get its new constitution too passed, after another unexciting parliamentary debate. What can the opposition do to stop the government’s constitutional juggernaut? Nothing immediately. Yet, the public discussion on the new constitution that might spread over a period of at least six months is something that the all opposition groups and democratic forces must make use of, with a long-term political vision in mind.

A constitution-making time is like an election time. It generates a huge public interest in fundamental political issues and makes citizens participants in engaged political conversations. In a time of the retreat of democracy, this is the moment to revive the citizens’ interest in real issues of politics such as the fate of their precious heritage of freedom and democracy. it will also open up space for the opposition to seize the opportunity to set the terms of public debate on the new constitution and its draft. But, the opposition, instead of just reacting to the government’s constitutional proposals, should begin to ask, along with the people of the country, some fundamental questions too that can re-direct the terms of the country’s political conversation and eventually directions of political change as well. Thinking along with the people for a more democratic Third Republic, built on the lessons of the past, is better political option for the opposition and civil society movements.

Indeed, the opposition parties will be faced with an inescapable dilemma again within a few months in challenging the new constitutional draft before the Supreme Court as well as in Parliament. Courts are unlikely to block a major policy decision by a government, unless there is a massive public outcry. And the government has the parliamentary majority necessary to get its constitutional draft passed into law. In such a situation, what the opposition can do is what Mrs. Sirimavo Bandaranaike and a very weak SLFP did in 1978, namely, to launch a spirited and vigorous defence of democracy and democratic constitutionalism, of course with powerful new ideas and arguments that can ignite the people’s political imagination for a better Republic, a Third Republic.

In today’s context, such an intervention requires bringing to the center of the debate a few important issues that have been missing in the debate on the 20^th Amendment.  The following are a few examples of such key issues that can arouse public interest as well as imagination, formulated in the form of questions:

• What kind of a new constitution do the citizens of Sri Lanka, independent of any party agenda, would want to see being promulgated to replace the 1978 constitution?
• Should the constitution serve the political agenda of the ruling party, or the welfare of the people along with the interests of the political community which the people constitute as a whole?
• How would such a constitution that reflects the interests of the political community be imagined in concrete terms for a multi-ethnic, multi-cultural and plural society?
• What are the fundamental constitutional values that should guide and be enshrined in the new constitution as immutable principles of law making and governance?
• What democratic, socialist and republican principles, as the official name of Sri Lanka enunciates, that be incorporated into the new constitution?
• What type of a constitution that can command the trust and loyalty of all sections of citizens against the backdrop of the country’s unresolved ethnic conflict and conflict-prone majority-minority relations?
• Why shouldn’t political power given to governments and rulers by people have limits and why constitutions with such limits to power are better than ones without?

Deepening the debate

Deepening the political conversation on questions such as the above is extremely important for one reason that unfortunately remain unacknowledged in Sri Lanka. That is that some of the most significant political and constitutional ideas that can be legitimately viewed as Sri Lanka’s indigenous body of modern political thought have emerged in the public discussions on the Soulbury, First Republican and Second Republican constitutions.

The concepts such as group rights, welfare democracy, social citizenship, non-discrimination, limits to political power, popular sovereignty, people’s role as king makers, sanctity of voting rights, rejection of the abuse of power, and immutability of citizens’ freedom – all these are ingrained in the society’s modern political consciousness. There is nothing Western or liberal in them. Rather, they are key elements of a popular democratic political theory and philosophy.

Such ideas also point to people’s notions of better constitutional orders and political arrangements for their political community. They have in fact been shaped against the negative experience of governments and rulers who have been repressive, tyrannical, and corrupt. Meanwhile, we must not forget that people also have a tendency to occasionally suspend their capacity for rational political judgement and make bad choices; but they bounce back to sanity and reason as soon as they realize the gravity of their folly.

Sri Lankan society actually has a people’s political discourse on constitutions that has more affinity with democracy than authoritarianism. The relentless social media humour as well as everyday critical conversations about the 20^th Amendment as well as the government’s questionable handling of the Covid-19 pandemic through the military are indications of a new fact in Sri Lanka’s politics: people have begun to move away from the authoritarian project of the government they have brought into power by means of their own free choice only several months ago.

And these are the citizen constituencies that the opposition parties and civil society should address in the coming months with a substantive, principled critique, and spirited rejection, of any attempt to make a hard authoritarian Third Republic in Sri Lanka. That critique needs to be anchored in a vision for a post-authoritarian Third Republic for Sri Lanka, which should be more democratic, more socialist and more Republican than the previous two.

The opposition and democratic forces in Sri Lanka have now got a new opportunity to rebuild the country’s democratic public as well as the Republic. The impending debate on the new Constitution opens an enormous political space for that intervention.

“Imagining a more democratic Third Republic for Sri Lanka” can very well be the theme that can even bring to a shared platform Sri Lanka’s divided democratic forces.

-This article was originally featured on groundviews.org