Dr. Asanga Welikala

The proposed amendment was long coming. The election of President Gotabaya Rajapaksa in November 2019 marked a new direction of constitutional development in Sri Lanka. The previous governing coalition, which had unexpectedly defeated his brother Mahinda in the presidential election of January 2015, enacted the 19^th Amendment to the Constitution in May 2015. The 19^th  Amendment transformed the 1978 Constitution into a premier-presidential model of semi-presidentialism by strengthening the Prime Minister and Cabinet vis-à-vis the President within the executive, and by strengthening Parliament vis-à-vis the executive as a whole. It also strengthened the fourth pillar institutions by pruning down the scope of presidential discretion regarding key appointments, and entrusting that role to the Constitutional Council.

Failings of semi-presidentialism

Although the Nineteenth Amendment was passed with an overwhelming parliamentary majority far exceeding the required two-thirds at the time, its democratizing aims were never universally understood or accepted – either within the political elite or society at large. When the key relationship in the governing coalition between then President Maithripala Sirisena and then Prime Minister Ranil Wickremesinghe broke down – registered most dramatically in the constitutional crisis of October-December 2018 – the perils of semi-presidentialism were graphically exposed. The Sirisena-Wickremesinghe government’s woeful handling of the Easter Sunday 2019 terrorist attacks served to conclusively discredit the model of executive power-sharing under the 19^th Amendment. Gotabaya Rajapaksa was elected, by a large margin, with an explicit promise to do away with it and restore strong presidential government.

COVID-19 helped the government to reinforce the case for strong presidentialism. The pandemic arrived in the island at a time when Parliament stood dissolved ahead of elections. Instead of recalling Parliament as the Constitution requires in a time of crisis, including for the purpose of approving government funds, the government chose a form of crisis response based entirely on executive diktats, presidential task forces, and the military. Without giving reasons, the Supreme Court denied leave to proceed to several legal challenges against the refusal to recall Parliament, even though the provisions of the Constitution were ostensibly against the government’s approach. With the political opposition in disarray, civil society criticism muted, and the government in control of the information environment, the dominant narrative of a strong government dealing effectively with a global crisis was established. In the public mind, law and constitutionality became less important than the perception of decisive executive action.

A fait accompli?

When legislative elections were eventually held on August 5, the government explicitly sought and obtained an unprecedented (under proportional representation) parliamentary majority for constitutional change. The opposition was decimated, with the United National Party (UNP), which had led the country to independence in 1948 and had until now been the main party of the centre-right, reduced to one seat. Its leader since 1994, Ranil Wickremesinghe, a thrice former prime minister, lost his parliamentary seat for the first time since 1977. After its defeat in the 2019 presidential election, the UNP had split, with the majority of former UNP members forming a new party called the Samagi Jana Balawegaya (SJB). The SJB obtained 54 seats in this election. The Rajapaksas’ Sri Lanka Podujana Peramuna (SLPP) obtained 145 seats outright, although with one member becoming Speaker, the government parliamentary party consists of 144 MPs. There are seven other MPs who for various reasons were not put forward as SLPP candidates but who are for all intents and purposes part of the government parliamentary group. This takes the government past the two-thirds majority required for constitutional amendments, or in other words, beyond 150 of the total of 225 MPs in Sri Lanka’s unicameral Parliament.

In his Statement of Government Policy to the new Parliament on August 20, the president outlined his approach to constitutional change. There would be an immediate amendment to deal with the anomalies of the 19^th Amendment and a longer-term process to introduce a new constitution. Accordingly, a committee of senior lawyers and academics has been appointed to report on proposals for a new constitution, while on September 2 the government gazetted a Twentieth Amendment Bill.

There is now a short period for the Supreme Court to entertain pre-enactment challenges to the Bill. The Court’s jurisdiction in this respect is to determine if the Bill can be enacted by a two-thirds majority in Parliament alone, or if it impinges on any of the entrenched clauses of the constitution, whether a referendum is also required. It can be expected that individuals, opposition political parties, and civil society groups would challenge the Bill. Nevertheless, the Attorney General has indicated that the amendment does not need a referendum, and it is unclear, given recent indications of prevailing judicial attitudes alluded to above, if the Supreme Court would go out of its way to require a referendum on any aspect of the government’s Bill. If the Bill thus passes judicial muster, given the government’s parliamentary majority, it is unlikely that there would be any changes to the Bill in the legislative stage, unless the government itself introduces committee-stage amendments.

An undivided Executive, a subordinate Legislature

In October-December 2018, President Sirisena attempted to dismiss Prime Minister Wickremesinghe and replace him with former president Mahinda Rajapaksa. This led to a 52-day constitutional crisis when Parliament, the courts, and indeed, protesting citizens, refused to accept the unconstitutional dismissal of Wickremesinghe. Sirisena and Rajapaksa were ultimately forced to retreat, and it appears the Rajapaksas did not forget the humiliation. As they well understood, a large part of the explanation for the outcome of the crisis was institutional: the 19th Amendment had empowered the Prime Minister, Parliament, and indirectly the courts, to counteract the power of the presidency in unprecedented ways under the 1978 Constitution. It was clear that after this episode, the Nineteenth Amendment would not survive a return of the Rajapaksas to power.

The main purpose of the 20^th Amendment Bill therefore is to undo the changes introduced by the 19^th Amendment, save for three (important) aspects. These are: the reduction of the terms of President and Parliament from six to five years, the two-term limit on presidential office, and the inclusion of the right to information in the bill of fundamental rights. These are (for the moment) retained, but every other 19^th Amendment change is to be repealed or amended.

The President will appoint and dismiss the Prime Minister at his discretion, whereas under the 19^th Amendment, the Prime Minister could not be dismissed by the President and could only be removed from office by death, resignation, on ceasing to be an MP, or if the government as a whole lost the confidence of Parliament.  The requirement that Cabinet and other Ministers can be appointed and dismissed by the President only on the advice of the Prime Minister will also be removed. The President will appoint and dismiss the Prime Minister and any other Minister at his discretion. The cap on the number of Ministers is also removed, thereby substantially increasing the scope for presidential control of Parliament through patronage ministerial appointments. Under the 19^th Amendment, the President could not dissolve Parliament on his own discretion until after the expiry of four and a half years of Parliament’s five-year term. The Twentieth Amendment Bill restores the previous framework, whereby the President can dissolve Parliament on his own volition and without any conditions after one year, and this again reduces Parliament’s autonomy from the executive. The changes effectively weaken aspects of semi-presidentialism that check the presidency, while introducing aspects that empower the presidency.

If the political accountability of the President is weakened in the above-mentioned ways, the legal accountability of the President is also weakened by the removal of the 19^th Amendment provision that the President’s official acts are subject to the Supreme Court’s fundamental rights jurisdiction. This must also be seen in the context of the 20^th Amendment Bill’s potential diminishment of judicial independence. Without any consultation or legally established criteria, the President would appoint and remove the two senior judges, other than the ex officio Chief Justice, to the three-member Judicial Services Commission (JSC).

As the JSC overseas the judiciary, this is an open invitation for executive interference in the operation of judicial independence at all levels. Moreover, the pre-enactment jurisdiction of the Supreme Court to determine the constitutionality of draft legislation is restricted by reducing the time from 14 to seven days within which petitions can be entertained by the court.

Perhaps the most significant departure from the Nineteenth Amendment is the complete nullification of the fourth pillar framework. The 20^th Amendment Bill replaces the Constitutional Council with the Parliamentary Council. The former is a stronger limitation on presidential power in terms of both composition and powers, whereas the latter is a government-dominated body which may only offer observations on presidential appointments to key offices and bodies. Accordingly, the President, subject only to the requirement of seeking the non-binding observations of the Parliamentary Council, will in future appoint all superior court judges, the Attorney General, the Auditor General, and the independent commissions, including those overseeing elections, the police, human rights, and bribery and corruption. The appointment of the Inspector General of Police is exempted from even this feeble requirement. There are many further changes with the effect of removing or diminishing the constitutional status and powers of independent commissions. In all these respects, therefore, the 20^th Amendment Bill represents a comprehensive rejection of the principle of de-politicization of accountability institutions.

Wither presidential checks and accountability?

The central structural change that the Bill will effect when enacted is that it will switch Sri Lanka’s constitutional regime-type from a premier-presidential back to a president-parliamentary model of semi-presidentialism. That is, the Prime Minister and Cabinet will no longer be responsible solely to Parliament, but jointly to both President and Parliament. The retention of a fixed-term and term-limited presidency, at least formally, will make the constitution less hyper-presidential than what prevailed between 2010 and 2015 under the 18^th Amendment (introduced by Mahinda Rajapaksa’s government). But it will nevertheless be a form of presidentialism that is inadequately balanced by institutional checks, because the Prime Minister and Cabinet now become the President’s subordinates rather than coeval executive actors. Similarly, the return of the presidential power of legislative dissolution, the re-politicization of judicial appointments, the restoration of presidential legal immunity, and especially the devitalization of the fourth pillar institutions, will all centralize unconstrained power in the presidency.

These institutional features will serve to weaken horizontal accountability and the rule of law, exacerbated in the short-term as the government enjoys a two-thirds legislative majority. The freshly re-empowered and directly elected President will become the dominant actor in a monarchical-presidential state. Such a constitutional design will reflect and magnify rather than contain and structure the highly personalist nature of Sri Lankan political leadership. This institutionally reinforced personalism at the apex of the state in turn will percolate downwards in a culture of government that will reject rules-based behaviour in favour of an opaque and impenetrable web of clientelist networks. A culture of government so reliant on patronage networks will undermine critical separations between state, society, economy, and the private sphere.

Imperial presidency meets nationalism

The Rajapaksas, moreover, are the modern standard-bearers of Sinhala-Buddhist nationalism. In the vanguard of their highly successful electoral machine is the Buddhist priesthood. The constitutional goal of this majority nationalism is to make Sri Lanka more of an ethnocracy than it already is; that is, to further intertwine and entrench the majority community’s ethnic, religious, and cultural identity with that of the Sri Lankan state as a whole. In this scheme, ethnic and religious minorities are not accommodated or integrated but encompassed and incorporated within a clear communal hierarchy. Minorities could hope for economic development, but not equality or plural accommodation. Those who resist will unequivocally be met with suppression. The Twentieth Amendment Bill does not touch on any of these issues. But these are presumably matters for the new constitution, which as prominent nationalist intellectuals that support the government have advocated, should be based on a civilization-state model.

As reflected in the results of the presidential and parliamentary elections of 2019 and 2020, the Sri Lankan electorate has clearly formed the view that presidential authoritarianism is a price worth paying for national security and economic development. In any case, in the absence of a referendum, there is unlikely to be any genuine public debate or consultation on the reforms. The Rajapaksa regime may well deliver on all or some of these objectives, depending on the criteria on which success is judged. However, the inevitable consequence of an unconstrained system of government is that it will also engender corruption, nepotism, and poor decision-making, not to mention communal divisions and democratic erosion. Executive overreach may extend from the constriction of democratic freedoms even to routinely violent repression. All this was, after all, the legacy of the previous Rajapaksa government under the Eighteenth Amendment. But this time, the Twentieth Amendment Bill represents only the beginning.

–Dr Asanga Welikala is Lecturer in Public Law at the School of Law, University of Edinburgh, and the Director of the Edinburgh Centre for Constitutional Law and this article was originally featured on constitutionnet.org