The Centre for Policy Alternatives (CPA) publishes this collection of essays assessing the changes brought about by the Nineteenth Amendment to the Constitution (2015) in a context in which further constitutional reforms are being contemplated. On 9th March 2016, Parliament unanimously passed a resolution establishing a Constitutional Assembly to consider major constitutional changes including the possibility of a new constitution.[1] The Public Representation Commission (PRC) has travelled the country and obtained public submissions on constitutional reform from December 2015 and is due to report on 31st April 2016.[2] CPA has since its inception contributed to the constitutional reform debate in Sri Lanka through many of its programmes, including a number of policy-oriented or scholarly publications.[3] This volume seeks to continue this contribution to public debate through the articulation of constitutional options and alternatives in a spirit of constructive critique. Given that the constitutional changes under discussion were passed less than a year ago, the insights presented here are necessarily preliminary and sometimes speculative in nature, but it is hoped that the analyses of the various aspects of the Nineteenth Amendment by the authors in this volume would assist constitution-makers as well as the general public as new reforms are presented, debated, and eventually validated in a future constitutional referendum.
Background
The reformist government headed by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe was returned in the Sri Lankan parliamentary elections held on 17th August 2015, consolidating the democratic regime change that occurred at the presidential election of 8th January. The defeat of former President Mahinda Rajapaksa in January was dramatic, and largely unexpected. His authoritarian regime had entrenched itself deeply within Sri Lanka’s political structures through a mixture of authoritarianism, constitutional manipulation, and populist nationalism. But its nepotism and clientelist corruption had also undermined its electoral support base, even if its strident brand of majoritarianism nationalism continues to enjoy substantial support within the Sinhala-Buddhist heartlands of the Sri Lanka.
The Sirisena-Wickremesinghe ‘national government’ brings together Sri Lanka’s two main political parties, respectively the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP), as well as a number of smaller parties in a centrist grand coalition. The common opposition candidacy of Sirisena in the presidential election was predicated on the promise of a series of major constitutional reforms to democratise the state after the Rajapaksa excesses, in particular to cut back the scope of the executive presidency and to strengthen the independence of public services. Wickremesinghe fought the parliamentary election on the promise of further reforms to come, including the vexed question of devolution in settlement of Tamil claims to territorial autonomy in the north and east of the island.
The Nineteenth Amendment was the centrepiece of a ‘100-day programme’ of constitutional and governance reforms offered by the common opposition at the presidential election, which in addition to the reforms to the presidency included other measures such as a Right to Information Act and a reform of the parliamentary committee system. In the event, however, most other measures fell by the wayside given that attention had to be focussed on the enactment of the Nineteenth Amendment against the obstructionist tactics of the opposition parliamentary majority.
The Nineteenth Amendment, even if it did not go far enough, constitutes a welcome start to a badly needed series of constitutional reforms to consolidate democracy and devolution in Sri Lanka. Whether the democratic reawakening registered by the two elections of 2015 fulfils its promise depends on how successfully both President and Prime Minister would work together to complete the process. Overall, however, the elections have created an historic opportunity to drive the country’s constitutional development in a more enlightened direction than it has taken in the past. This is imperative to unleashing and fully realising the Sri Lanka’s tremendous economic, social, and political potential.
The Nineteenth Amendment to the Constitution (2015)
The Sri Lankan Parliament passed the Nineteenth Amendment to the Constitution Act on 28th April 2015 and the process of enactment was completed by the Speaker’s certification two weeks later on 15th May.[4] Since the new government took office on 9th January and began its 100-day reform programme, the process used in drafting the Nineteenth Amendment was chaotic, sometimes fractious, did not meet its own deadlines, and conspicuously failed to meet contemporary benchmarks of transparency and public consultation. But due to the unique configuration of political representation in the executive and the legislature that emerged from the January presidential election, the government was forced to accommodate not only differing views within the ruling coalition but also the opposition which continued to hold the parliamentary majority.
Maithripala Sirisena won the presidency only with the support of the common opposition, after defecting from the Rajapaksa government. After the election he appointed Ranil Wickremesinghe, the then Leader of the Opposition, as his Prime Minister at the head of a minority government. The new President was thus left in the unenviable position of having to persuade his former party colleagues to support his reforms, in a context in which many of them still retained their loyalty to the deposed Mahinda Rajapaksa. The President however showed an admirable commitment to his electoral mandate to reform the presidency in sustaining consultations within his party to the end. Prime Minister Wickremesinghe too showed restraint and understanding of the President’s political constraints, and their co-operation ensured that the necessary two-thirds majority in Parliament was eventually secured.
One of the key concessions they had to make, however, was to introduce electoral reforms demanded by the opposition in conjunction with the presidential reforms. While these were to be embodied in a Twentieth Amendment to the Constitution, the negotiations around the content of the new electoral system broke down, and Parliament was dissolved due to the absence of consensus. Electoral reforms to introduce a new Mixed Member Proportional (MMP) system are high on the agenda in the current process.
The compromise reflected in the Nineteenth Amendment was achieved without conceding the core elements of the January reform mandate, and without resorting to unilateral options such as a snap general election. This centrist policy rejected both the more extreme Rajapaksa loyalists who wanted the hyper-presidential state to remain untouched, as well as others who wanted an early election to sweep away the Rajapaksa loyalists in Parliament. While no doubt this diluted some of the stronger reforms contemplated at the start of the process, at least notionally, it denotes a broad consensus of all parties that could strengthen the durability of the reforms. It can also be seen as a noticeable demonstration of the return to a more democratic way of conducting constitutional politics, when contrasted with, for example, the authoritarian efficiency with which the Rajapaksa regime passed the ruinous Eighteenth Amendment within ten days in 2010.[5] The final text disappointed many Sri Lankans who would have wanted the abolition of executive presidentialism, or something approximating to that. Yet what is embodied in the Nineteenth Amendment perhaps reflects what was politically possible within the parliamentary balance of power after the presidential election. It was in this context also that the Wickremesinghe government indicated that it would seek a fresh mandate for a new constitution in the parliamentary elections. It has now obtained such a mandate which, coupled with the President’s own mandate in January, provides a strong impetus to continue with the process of reforms in the new Parliament.
The Main Changes Introduced by the Nineteenth Amendment
It cannot be denied that the Nineteenth Amendment introduced a number of very positive reforms that have been long overdue in Sri Lanka. The presidential term is reduced to five years from the previous six, and the two-term limit is restored, although the incumbent can seek re-election after four years in the first term. It is expressly provided that no one twice elected as President is qualified to contest again. Parliament’s term is also reduced to five years, and significantly, the previous presidential power to dissolve Parliament at will has been removed by the provision that, unless it requests so by a resolution of a two-thirds majority, Parliament cannot be dissolved by the President until the expiration of four and a half years of its term. These provisions establish more or less fixed presidential and parliamentary terms, which have the effect of removing the vast presidential discretions of the past, of strengthening the separation of powers, and promoting stability.[6] Presidential immunity from suit has been abridged by extending the jurisdiction of the Supreme Court to entertain fundamental rights applications in respect of official acts of the President. These actions are to be instituted against the Attorney General. This is an improvement, but falls far short of the restriction of legal immunity that is required.
Another positive feature is the repeal of the ‘urgent bill’ procedure. Previously, a Bill endorsed by the Cabinet as being urgent in the national interest could be passed by a fast-tracked process, which attenuated the scope for pre-enactment challenges in the Supreme Court. This procedure has been frequently abused, especially in using it to pass manipulative constitutional amendments. Similarly, a minor improvement is that that all Bills are now required to be gazetted fourteen days (against the previous seven) before being placed on the Order Paper of Parliament, which again should improve the scope for legal challenges.
A constitutional limitation of thirty has been placed on the number of Cabinet Ministers, and there are similar limitations on the number of other Ministers, although it is provided that where there is a national government (defined as where the first and second largest parties represented in Parliament come together to form a government), then the size of the Cabinet could be enlarged through an Act of Parliament. This strengthens Parliament’s independence by limiting the scope for the co-option of MPs through patronage appointments and vote bloc clientelism. This practice was taken to preposterous levels by the Rajapaksa regime, but it has been a major problem of Sri Lankan political culture for much longer. This provision seems likely to be used in the current Parliament in order to secure the support of MPs with wavering loyalties for constitutional reform, which would be disappointing for many given the recent experience of ‘jumbo cabinets’ under Rajapaksa. However, if this tactic provides the stability and crucially the parliamentary votes needed to enact the reforms to come, including in relation to devolution and power-sharing,[7] then arguably it may well be a price worth paying.
A new right to information has been added to the chapter on fundamental rights, making it a judicially enforceable right.[8] Incidentally, the 100-day programme also proposed right to information legislation to elaborate upon and provide the institutional apparatus for the exercise and promotion of the constitutional right to information. While much progress was made in the drafting of a Right to Information Bill, this fell victim to the political exigencies of passing the Nineteenth Amendment that overtook all else in the 100-day programme. The government has assured that this legislation will be enacted in the current Parliament, but this perhaps demonstrates the lack of forethought and realism in the design of the 100-day programme whilst in opposition.
Perhaps the strongest feature of the Nineteenth Amendment is the de-politicisation framework that is established with the Constitutional Council and the independent commissions.[9] This restores much of the Seventeenth Amendment framework that was repealed or weakened by the Eighteenth Amendment, and indeed goes further in strengthening the commissions and adding new ones. The Constitutional Council has two functions: it recommends presidential appointments to the independent commissions, and it approves presidential appointments to high posts such as superior court judges and law officers.[10] It was originally proposed that the Council, which would be chaired by the Speaker and have the Prime Minister and the Leader of the Opposition as members, would have a majority of its membership drawn from independent eminent persons.
However, this encountered serious disapproval during the parliamentary debate, with the opposition claiming that a majority of civil society members would render the Council democratically unaccountable. The compromise was to allow for a composition of seven MPs (which includes the three ex officio members mentioned above) and three independents. While this weakens the apolitical character of the Council, it is nonetheless a multiparty body and therefore can be expected to be politically non-partisan. Addressing the previous experience under the Seventeenth Amendment where Presidents have refused to follow the Council’s recommendations, it is now provided that if the President has not acted pursuant to recommendations, then such appointments are deemed made by operation of law after fourteen days. Independent commissions to oversee the public service, judiciary, the police, elections, and human rights are all restored. The bribery and corruption commission has been given constitutional standing and its powers have been enhanced. New commissions on audit and procurement have been introduced.
These are all indubitably progressive institutional reforms and innovations, which have moreover been the subject of public demand for years. However, as with all institutional reforms, their success can only be judged in implementation. It remains to be seen whether they are robust enough to overcome inevitable resistance from vested interests, to engender professionalism, independence, and capacity in the public sector, and to reshape a decrepit political culture with a high tolerance for authoritarianism and corruption.[11]
Presidentialism: Reform or Abolish? The Tussle over the ‘Advice Clause’
What eventually became the Nineteenth Amendment went through a number of schemes between January and April. While this is not unusual in any process of constitutional change, as noted above, the process was marked by a lack of transparency and public information, which added to the perception of indiscipline and chaos as the parties within the government tried to resolve their own differences whether to abolish or merely reform the executive presidency.[12] This disagreement and confusion stemmed from a noteworthy – and surprising – ambiguity in the common opposition manifesto itself. While the English version promised to ‘abolish’ the executive presidency, the more authoritative Sinhala version reflected a much more ambivalent statement about ‘changing’ the institution.[13] The explanation for this inconsistency is debatable, although it may not have been a deliberate attempt to mislead the public and is more likely to be the result of carelessness and the absence of attention to detail and precision around a political commitment towards which there were substantially different opinions within the opposition coalition.
Indeed, the process can be characterised as a struggle between the ‘abolitionists’ and the ‘reformists’, with the latter eventually prevailing because their view was more in line with what the opposition parliamentary majority were willing to support. Moreover, given the centrality of the executive presidency to the structure of the 1978 Constitution, the abolitionists were perhaps optimistic in thinking that the deeper changes to the presidency they desired could be made without attracting a referendum, as became evident when the Bill was challenged before the Supreme Court. This central disagreement therefore centred on the ‘advice clause’: if the abolitionists succeeded in establishing the principle that the President always acts on the advice of the Prime Minister, then this would transform the presidential 1978 Constitution into a parliamentary constitution; which was why the reformists were so intent on ensuring that the advice clause was either removed, or so circumscribed in its application as to be innocuous.
The initial scheme of the reforms was embodied in a Discussion Paper, which was never officially published but was leaked in February.[14] This conceptual scheme was also rendered into an unofficial legal draft, again never properly published but also leaked.[15] This underwent further changes before the Nineteenth Amendment to the Constitution Bill was officially gazetted on 13th March. The provisions of the gazetted Bill were challenged before the Supreme Court, which heard the petitioners and the Attorney General over three days in early April.[16] The Court’s determination was then communicated to the Speaker, who informed Parliament of its findings on 9th April.[17] An unusual feature of the judicial proceedings was that the Attorney General had to inform Court, on behalf of the government, of a series of amendments to be further made to the text of the Bill before Court. These amendments had been agreed in Cabinet previously in response to criticisms of the gazetted Bill. The Court therefore had to make its determination on whether or not the Bill required a referendum not only on the basis of the published Bill but also the amendments proposed by the government through the Attorney General. A memorandum containing the list of changes that the government intended moving at the committee stage of the legislative process was, yet again, not officially published but leaked.[18]
The Bill was taken up for debate on 28th April and was passed late in the evening of the same day. It is remarkable that under Sri Lankan parliamentary procedure, it is possible to pass a constitutional amendment within a day of debate, with the committee stage being a Committee of the Whole House. This not only precludes consultation, reflection, and detailed, line-by-line scrutiny (even though a vote is taken on each clause), but encourages the opposite result of grandstanding and point-scoring – or to use the metaphor in its original context, ‘playing to the gallery’ – by MPs on both sides of the House. There are therefore four key stages to this unnecessarily labyrinthine process that require examination: the Discussion Paper, the Gazetted Bill, the Supreme Court determination, and the final text of the Nineteenth Amendment Act.
The Discussion Paper outlined an unusual hybrid system of government that would nevertheless be effectively an abolition of executive presidentialism. In this framework, the President would be the head of state but not the head of government, which would revert to the Prime Minister as the head of the Cabinet. Crucially, the President would be required to act on the advice of the Prime Minister (or other Minister authorised by the Prime Minister), except in the appointment of the Prime Minister or other specific acts authorised by the constitution or other law in which he acts in his own discretion. By contrast in the view of the Jathika Hela Urumaya (JHU), reflected in a draft constitutional amendment bill it published in late 2014, the President would have a more substantive role in government, including a special responsibility for defence and ensuring the territorial integrity of the state.[19] The JHU was a small but (disproportionately) influential party of Sinhala-Buddhist nationalists who are part of the current government, having highly effectively supported the common opposition after abandoning Rajapaksa in late 2014. Its Cabinet Minister Champika Ranawaka led the anti-abolition campaign within the government since January. These competing views about the form of government, which reflect much deeper ideological differences on fundamental issues such as the nature of the state and attitudes to the accommodation of minority claims, gave rise to serious and public disagreements between the coalition partners when the contents of the Discussion Paper became known.
The cumulative effect of the reforms outlined in the Discussion Paper was the establishment of what is effectively a parliamentary executive with a titular presidency. However, the holdover from the pre-existing framework was in the mode of election of the President, which was by a state-wide direct election. This was unusual to the extent that titular Presidents are commonly and more appropriately elected by Parliament (and where relevant sub-state legislatures) rather than by direct election. Changing the mode of election was reserved for the next Parliament. The JHU proposal also envisaged a direct election, but at least this was more consistent with the reformed but still presidential system that it sought.
In the next iteration, the Gazetted Bill also involved a significant reduction in the scope of presidential power by proposing that the Prime Minister would be the head of the Cabinet and that the President would act on his advice in the appointment and dismissal of Ministers. However, the language of the draft clauses where couched in much less expansive terms than the Discussion Paper. The provision that the President ‘always’ acts on advice was absent, and instead a more conventionally Gaullist formulation of the President acting on advice on some matters and in his own discretion in others was included. This was therefore a continuation of presidentialism in principle, albeit with the 1978 Constitution’s more egregious features removed. But the proposed dyadic executive assumed the presence of a fairly sophisticated democratic culture of governance – which for example can accommodate ‘cohabitation’ – that has been demonstrably absent in Sri Lanka in the past. However, the JHU found this too to be too radical a diminution of the presidency and consequently the government undertook to further dilute the powers of the Prime Minister when the Bill was taken up by the Supreme Court.
One of the key points in the Supreme Court’s determination was that it disagreed with petitioners who argued that all of the changes proposed in the Bill would be unconstitutional because they would take executive power away from the President, in whom it is solely vested, thereby violating the basic structure of the constitution. On the contrary, the Court noted that executive power was exercised by the President as well as the Cabinet even under the unreformed constitution. Executive power was to be understood as an aspect of the sovereignty of the people, not something that was exclusive and personal to the individual holding the office of President. While therefore executive power may be delegated by the President, or divided between actors in its exercise, the constitution nonetheless required that the President held the ultimate executive authority.[20]
The provisions of the Bill seeking to make the Prime Minister the head of the Cabinet and attendant powers, which would be exercised solely by the Prime Minister without recourse to the President, would therefore be unconstitutional, but only to the extent that the President was excluded from the exercise of these executive powers by the Prime Minister and Cabinet. Presumably then, as long as the President remained the ultimate authority, the exercise of executive power ‘on the advice of’ the Prime Minister or Cabinet would not be unconstitutional. In other words, the implication of the Court’s reasoning seemed to be that even if the President is in effect largely titular in the day-to-day exercise of executive power – because he always acts on the advice of Ministers in the running of the government – that would not be unconstitutional provided that those powers are exercised for and on behalf of the President. This interpretational leeway in the Court’s reasoning to some extent placated the ‘abolitionists’ that, while they could give way to the ‘reformists’ at this stage of the process, once they could obtain a fresh mandate in the parliamentary election for abolition, they would be able to revisit the issue in the new Parliament.[21]
However this naturally meant that the government had to undertake to remove these ‘advice’ provisions if it wished to pass the Nineteenth Amendment without a referendum, which for political reasons the government wished to avoid.[22] These changes (among others) were done at committee stage when the Bill returned to Parliament, where in any case, the opposition majority was willing to concede much less with regard to pruning presidential powers. Consequently, some language from the old constitutional provisions was reintroduced into the text of the Nineteenth Amendment in the final parliamentary stage of the process.
Thus as a result of opposition within the government from the JHU, the opinion of the Supreme Court as to what would and would not require a referendum, and the political opposition of the parliamentary majority, the expansive promise of the initial Discussion Paper was quite substantially cut down. Yet the enhanced role of the Prime Minister after the Nineteenth Amendment in relation to government formation and operation is not insignificant. Rather than transforming a presidential constitution into a parliamentary constitution as initially promised, the Nineteenth Amendment has retained the semi-presidential character of the 1978 Constitution while moving it from a ‘president-parliamentary’ to a ‘premier-presidential’ model.[23]
In terms of the final text of the Nineteenth Amendment, then, the President remains head of state, head of the executive and of the government, and the commander-in-chief. He is a member and the head of the Cabinet, which is in turn responsible and answerable to Parliament for the direction and control of government. The President appoints the Member of Parliament most likely to command the confidence of Parliament as the Prime Minister, and the President determines the number of Cabinet Ministries, the assignment of subjects to Ministers, and the reassignment of such subjects and composition of Cabinet from time to time. In relation to all these powers, the President needs to only consult the Prime Minister where he considers such consultation to be necessary. The advice clause is however retained where the President is required to act on the advice of the Prime Minister in identifying specific Members of Parliament for appointment as Cabinet and other Ministers, and critically, Ministers can only be dismissed by the President on the advice of the Prime Minister. This gives in effect a coequal role for the Prime Minister in government formation and dismissal, and despite the reiterations of the formal (and symbolic) supremacy of the President in the executive, it is difficult to imagine how even the formally exclusive presidential powers in this area can be exercised without the advice, or at least without the acquiescence and certainly without the active opposition, of the Prime Minister.
Assessment of the Process and Substance of the Nineteenth Amendment
It can be concluded therefore that the 1978 Constitution after the Nineteenth Amendment remains semi-presidential. The delicately balanced provisions with regard to the relationship between the President and Prime Minister (and the relationship between the executive and legislature) would largely depend on the co-operation between President and Prime Minister. It is, however, in the other changes and limits placed on presidential power that the Nineteenth Amendment might be regarded as effecting a real constitutional regime change, and that the landmark presidential election of January 2015 was not a mere change of government for the continuation of business as usual. Under the Rajapaksa regime, power was concentrated in a ruling elite through both formal and informal means, and while it was populist in its methods of political mobilisation through the invocation of a majoritarian nationalist ideology, this did not mean access to political power for citizens at large. This regime was voted out in January on the explicit promise by the common opposition to fundamentally change the structures, rules and procedures of the Sri Lankan state. While retaining the presidential character of the constitution and the state, the Nineteenth Amendment has established a more even structural balance between the three organs of government and a thoroughgoing institutional framework for good governance. As noted above, however, the efficacy of the reforms can only be tested in implementation.
This process, and the evolution of the advice clause especially, highlight several characteristic features of the ‘Sri Lankan way’ of undertaking constitutional reform. Constitutional historians would see many path dependent resonances between the Nineteenth (and Twentieth) Amendment process and constitutional reform efforts of the past, especially the elitist nature of the decolonisation process.[24] The modern Ceylonese state was created by a small group of local leaders, constitutional advisors, and colonial officials, and this seems to have determined the path dependency of the Sri Lankan tradition of constitutional change ever since.[25] In this tradition, unlike for example in India, there is little or no space for mass political mobilisation, public deliberation in constituent assemblies, and open negotiation of group interests. While in 2015 the process outlined above involved the accommodation and balancing of competing group interests within Parliament and government to a greater extent than in the 1940s, it nevertheless was an exercise in representative rather than participatory democracy.
The first point to note therefore is the elitist character of the process. Even though the presidential campaign of 2014/5 engendered a remarkable societal discourse on democracy and good governance, public involvement in the process of constitutional reform stopped abruptly on the day of the election.[26] No effort was made even to share evolving documents with the public, let alone put in place a framework of public consultation. Secondly, while a wide political consensus was built for the democracy reforms – helped in no small measure by the excesses of the Rajapaksa regime – the reform consensus is unlikely to extend automatically to the even more fundamental restructuring of the state that is required to address Tamil and other minority demands for devolution and power-sharing. If it is the intention of the government to address these matters in the new constitution that it seeks to promulgate in the current Parliament, then it would seem that a much more rigorous process of consensus-building across ethnic communities will have to be undertaken. Thirdly, the Nineteenth Amendment process underscores how the significance of personalities in Sri Lankan politics extends also to constitutional change. While doubtless there were some deeper philosophical commitments about presidentialism and parliamentarism competing in the debate between abolitionists and reformists on the advice clause, it is very clear that the eventual compromise settlement was decided not so much by principles of constitutional design, but by how Sirisena and Wickremesinghe (and their respective parties) might work together in the foreseeable future. The underlying rationale of the cluster of provisions governing the relationship between the President and the Cabinet emerges with any clarity only if they are looked at this way.
The Nineteenth Amendment represents an incremental step in the right direction in democratising the Sri Lankan state. It would have been desirable to go much further in cutting back presidentialism, but what it achieved was what was politically possible between January and May 2015. It is stronger in establishing a credible framework for de-politicisation but its full potential can only be realised through meaningful implementation. The process of its enactment was messy and lacked public involvement. But in terms of both the substance of the reforms it has instituted, as well as the unruly multi-polarity of political views that characterised and contributed to its creation, the Nineteenth Amendment signifies a reminiscent return of Sri Lankan politics to an older and more familiar mould, after the interlude of the Rajapaksa regime in which populism, nationalism, and authoritarianism retarded Sri Lanka’s constitutional development.
The August 2015 Parliamentary Election and the Prospect of Further Reforms
The successful enactment of the Nineteenth Amendment provided the basis for the dissolution of Parliament and for the minority government to go to the country seeking its endorsement and the promise of further reforms. While former President Rajapaksa and his loyalists attempted a strong comeback, in the event, the coalition called the United National Front for Good Governance (UNFGG) led by the UNP of Prime Minister Wickremesinghe emerged as the single largest party in the Parliament elected on 17th August with 106 seats. This fell short of an overall majority of 113 seats in the 225-member legislature. The United People’s Freedom Alliance (UPFA) led notionally by President Sirisena but effectively by Rajapaksa gained 95 seats. It is important to recall that large disparities in parliamentary representation are unusual under Sri Lanka’s system of proportional representation and that the UPFA vote share fell significantly from January to August. Since the last general election in 2010, the UNP increased its representation by 46 seats, whereas the UPFA’s strength declined by 49 seats. This result can therefore be seen as an ample validation of the government’s record by the electorate, even though some may have hoped for an overall majority for the UNFGG for the sake of stability and clarity.
In the Tamil majority areas of the north and east, the Tamil National Alliance (TNA) emerged as the dominant political force, with 16 seats. The moderates in the TNA successfully withstood a strong challenge from hard-line nationalists, especially in Jaffna where Tamil politics has become the most pluralistic and competitive in decades, with the relative relaxation of the repressive atmosphere created first by the long dominance of the Liberation Tigers of Tamil Eelam (LTTE) and then by the militarised post-war administration of the Rajapaksa regime. The TNA has therefore solidly delivered its constituency for the reform platform in both elections of 2015 and would have legitimate expectations to have its constitutional claims to greater devolution addressed by the new government in the next Parliament.
The wins for the UNFGG in the south, and indeed for the TNA in the north, then, strongly imply that the process of constitutional and governance reforms will have to be sustained in the new Parliament. As noted before, a substantial part of the 100-day programme remains to be enacted and implemented, and these as well as a number of other proposals for change featured prominently in the UNFGG manifesto. The sections on institutional reforms in the manifesto are set out only in rudimentary terms, but they outline an ambitious programme. A new constitution is promised that will uphold principles of good governance, strengthen representation, and fortify the principle of equality between individuals and communities. The ‘advice clause’ returns subject to a sunset on President Sirisena’s powers, i.e., the executive in the future constitution would be in line with the formulation in the Discussion Paper discussed above. The Nineteenth Amendment made some special provisions for President Sirisena, including the right to hold certain Ministries, and this is to continue, subject to the solemn undertaking given by the incumbent that he would only serve one term.
A mixed electoral system (MMP) combining elements of first-past-the-post and proportional representation is promised, although there is no detail as to the design of the system. Legal provision will be made to ensure that 25% of the nominations of political parties for parliamentary elections would be women candidates. Resurrecting another idea from the Discussion Paper, the Constitutional Council is to be reconstituted as a Council of State, which would include a large component of civil society representation in addition to the Speaker, the Prime Minister, and the Leader of the Opposition. The Council of State and the strengthened independent commissions ensuring good governance are to be regarded as the fourth branch of the state. The parliamentary committee system is to be overhauled so as to strengthen its oversight role, and Freedom of Information and Nation Audit Acts are to be introduced. The manifesto promises a new bill of fundamental rights and the establishment of a Constitutional Court vested with the power to determine all constitutional questions.
Finally, the UNP manifest undertakes ‘To take measures to devolve powers to the maximum extent under the unitary state.’ The reaffirmation of the commitment to the unitary state will disappoint the TNA and other Sri Lankan liberals who would like a federal-type devolution of powers. However, the explicit mention of the unitary state clearly had a strategic purpose in protecting a vulnerable flank in the election campaign. If not for its presence, the Rajapaksa camp would have capitalised on Sinhala fears about federalism, and perhaps even have converted the entire general election into a referendum on the issue. Now that that threat has been averted, it is to be hoped that the government will approach devolution issues with flexibility and a decentralising spirit. Sri Lanka’s long war ended in 2009 with the military defeat of the LTTE, but there was no prospect of a constitutional settlement with regard to the Tamils under the Rajapaksa regime. Without such a settlement, and one that the TNA can plausibly defend to its constituency, the long-term stability of the Sri Lankan state would not be guaranteed. And it would constitute a betrayal of the hopes of the Tamils and other minorities who voted solidly for reform and ensured the particular outcomes of the two elections of 2015.
In all these respects therefore the ‘constitutional moment’ created by the presidential election and extended by the parliamentary election would continue into the foreseeable future, with the focus now moving to the deliberations of the Constitutional Assembly. The challenges of constitutional reform cannot be underestimated, not only in terms of their inherent complexities – a settlement of the Tamil claim to self-government has completely eluded Sri Lanka for its entire post-history – but also because of the economic context. The Rajapaksa regime left behind an indebted and bloated state that requires a major retrench: an inherently difficult task in a society addicted to state provision of subsidies and employment. Whether the new national government is robust enough to undertake tough political reforms while also dealing with unpopular economic decisions remains to be seen. However, as evidenced in the results of the elections, most Sri Lankans have entrusted the combination of President Sirisena and Prime Minister Wickremesinghe to steer them through these perilous waters.
The Structure of the Book
The essays in this volume are broadly organised into three parts, dealing, respectively, with the process and politics of constitutional change in 2015, the substantive changes introduced by the Nineteenth Amendment, and a couple of essays on some future prospects. Chapter 1 by Paikiasothy Saravanamuttu provides an analysis of the political backdrop in 2015, the historic nature of the elections and of the Nineteenth Amendment, and discusses the challenges that remain to be addressed in Sri Lanka’s on-going process of democratisation. In Chapter 2, Aruni Jayakody provides a detailed account of the development of proposals from January to May which eventuated in the final version of constitutional changes embodied in the Nineteenth Amendment. In Chapter 3, Kalana Senaratne explores the political dynamics that were at play between competing forces within the common opposition to Rajapaksa, and provides an insightful analysis of the politics and the constitutional visions within those Sinhala nationalist forces that formed an important part of the common opposition. Developing thoughts first articulated in his prolific opinion pieces to the Sri Lankan online media, in Chapter 4 Laksiri Fernando reflects on whether the Sri Lankan electorate has taken a cosmopolitan turn in 2015, and if so, as he suggests is the case, the implications of that change. In Chapter 5, Asanga Welikala discusses the normative content of the idea of ‘yahapalanaya’ or ‘good governance’ that so vividly captured the public imagination in the presidential election campaign, and argues that some of these aspirations denote a deepening of Sri Lanka’s republican democracy.
The next eight chapters deal with various aspects of the most important substantive reforms brought about by the Nineteenth Amendment, commencing with a review of the Supreme Court’s Special Determination on the Nineteenth Amendment Bill by Shehara Athukorala in Chapter 6. Reeza Hameed critically discusses the new relationship between Parliament and government in Chapter 7, and highlights a number of constitutional problems that are likely to emerge in the future. Dinesha Samararatne engages in a detailed and comprehensive analysis of the most important changes (re)introduced by the Nineteenth Amendment, viz., the Constitutional Council and the independent commissions, in Chapter 8. In Chapter 9 Gehan Gunatilleke provides a similarly detailed and comprehensive treatment of the new fundamental right to information and its scope and limits. In Chapters 10 and 11, respectively, C. Narayansuwami and Hejaaz Hizbullah discuss the civil service and the administration of justice, how these vital public institutions have been affected by the Nineteenth Amendment, and what further improvements are necessary. Devolution was a major constitutional concern that was deliberately excluded from both the common opposition campaign as well as the Nineteenth Amendment, but in Chapter 12 Niran Anketell points out those areas in which it has inevitably impacted on the existing framework of devolution under the Thirteenth Amendment. Chapter 13 by Artak Galyan is an absorbing study of the Nineteenth Amendment as a framework of semi-presidential government, placed in a comparative politics and theoretical context, which is a framework of analysis that is an unusual and unique approach to our understanding of the Nineteenth Amendment as well as the 1978 Constitution. Galyan’s findings would be interesting for many Sri Lankan readers accustomed to the notion of an ‘over-mighty executive presidency.[27] The last two essays deal with constitutional reform issues that may well arise in the near future. The option of replacing executive presidentialism with the unusual innovation of a directly elected Prime Minister is critically discussed by Asanga Welikala in Chapter 14, and in Chapter 15, Rohan Edrisinha provides closing reflections on the broader constitutional reform issues that require to be addressed as the Constitutional Assembly commences its work.
Acknowledgements
I wish to thank Paikiasothy Saravanamuttu, Shehara Athukorala, Sanjana Hattotuwa, and Rebecca David at CPA for their assistance and support in relation to the research, coordination, and production of this book. CPA’s publishing model makes this book available to the public for free (or for the cost of shipping overseas) and this requires external production funds. I thank the Government of Canada for providing the funds for this purpose. I am especially grateful for the support and cooperation of my colleagues at Edinburgh Law School and the Edinburgh Centre for Constitutional Law that enables this work in support of the Sri Lankan constitutional process to continue.
Dr Asanga Welikala
Colombo
8th April 2016
[1] Resolution of Parliament, 9th March 2015, available at: http://www.parliament.lk/en/news-en/view/1160 (last accessed 14th March 2015)
[2] CPA’s preliminary submission to the PRC, 23rd January 2016, is available at: http://www.cpalanka.org/preliminary-submission-by-the-centre-for-policy-alternatives-cpa-to-the-public-representation-commission/ (last accessed 14th March 2015)
[3] More recent publications in this vein include: H. Kumarasingham (Ed.) (2015) The Road to Temple Trees – Sir Ivor Jennings and the Constitutional Development of Ceylon: Selected Writings (Colombo: Centre for Policy Alternatives); A. Welikala (Ed.) (2015) Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects, Vols. 1 & 2 (Colombo: Centre for Policy Alternatives); L. Ganeshanathan & M. Mendis (2015) Devolution in the Northern Province: September 2013-February 2015 (Colombo: Centre for Policy Alternatives); A. Welikala (Ed.) (2012) The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice, Vols. 1 & 2 (Colombo: Centre for Policy Alternatives); R. Edrisinha & A. Jayakody (Eds.) (2011) The Eighteenth Amendment to the Constitution: Substance and Process (Colombo: Centre for Policy Alternatives); Centre for Policy Alternatives (2010) Devolution in the Eastern Province: Implementation of the Thirteenth Amendment and Public Perceptions, 2008-2010 (Colombo: Centre for Policy Alternatives); R. Edrisinha, M. Gomez, V.T. Thamilmaran & A. Welikala (Eds.) (2009) Power Sharing in Sri Lanka: Political and Constitutional Documents 1926 – 2008 (Colombo: Centre for Policy Alternatives); A. Welikala (2008) A State of Permanent Crisis: Constitutional Government, Fundamental Rights, and States of Emergency in Sri Lanka (Colombo: Centre for Policy Alternatives); R. Edrisinha & A. Welikala (Eds.) (2008) Essays on Federalism in Sri Lanka (Colombo: Centre for Policy Alternatives); R. Edrisinha & A. Welikala (Eds.) (2008) The Electoral Reform Debate in Sri Lanka (Colombo: Centre for Policy Alternatives).
[4] The final text of the Nineteenth Amendment Act is available at: http://www.parliament.lk/files/pdf/constitution/19th-amendment-act.pdf (last accessed 14th March 2015).
[5] See Edrisinha & Jayakody (2011).
[6] See chapters by Reeza Hameed and Artak Galyan in this volume.
[7] See chapter by Niran Anketell in this volume.
[8] See chapter by Gehan Gunatilleke in this volume.
[9] See chapter by Dinesha Samararatne in this volume.
[10] See chapter by Hejaaz Hizbullah in this volume.
[11] See chapter by C. Narayanasuwami in this volume.
[12] See chapter by Aruni Jayakody in this volume.
[13] See chapter by Kalana Senaratne in this volume.
[14] Colombo Telegraph, 9th February 2015, available at: https://www.colombotelegraph.com/index.php/maithri-proposals-on-constitutional-reforms-full-text/ (last accessed 14th March 2015).
[15] Colombo Telegraph, 7th March 2015, available at: https://www.colombotelegraph.com/wp-content/uploads/2015/03/Exclusive-19th-Amendment-draft-.pdf (last accessed 14th March 2015).
[16] Colombo Telegraph, 17th March 2015, available at: https://www.colombotelegraph.com/wp-content/uploads/2015/03/19th-Amendment-English-Gazetted-Bill.pdf (last accessed 14th March 2015).
[17] Colombo Telegraph, 6th April 2015, available at: https://www.colombotelegraph.com/wp-content/uploads/2015/04/SC-SD-4-to-19-of-2015.pdf (last accessed 14th March 2015).
[18] Colombo Telegraph, 26th March 2015, available at: https://www.colombotelegraph.com/wp-content/uploads/2015/03/Amendments-proposed-to-the-19th-Amendment-to-the-Constitution-Bill-26.03.2015-Clean-copy-2.pdf
[19] Pivithuru Hetak National Movement (n.d.), available at: http://www.sadahamsevana.org/New folder/A.pdf (last accessed 14th March 2015).
[20] See chapter by Shehara Athukorala in this volume.
[21] See e.g., J. Wickramaratne, ‘SC Decision On 19A Clears Way For Ultimate Abolition Sans Referendum’, Colombo Telegraph, 13th April 2015, available at: https://www.colombotelegraph.com/index.php/sc-decision-on-19a-clears-way-for-ultimate-abolition-sans-referendum-dr-jayampathy-wickramaratne/ (last accessed 14th March 2016)
[22] A. Welikala, ‘From Presidential to Parliamentary State? A Midterm Look at Sri Lanka’s Constitutional Reform Process’, ConstitutionNet, 31st March 2015, available at: http://www.constitutionnet.org/news/presidential-parliamentary-state-midterm-look-sri-lankas-constitutional-reform-process?utm_source=newsletter&utm_medium=email (last accessed 14th March 2015).
[23] See chapter by Artak Galyan in this volume.
[24] H. Kumarasingham, ‘‘The Jewel of the East yet has its Flaws’ The Deceptive Tranquillity Surrounding Sri Lankan Independence’, Heidelburg Papers in Comparative and South Asian Politics 72, available at: http://archiv.ub.uni-heidelberg.de/volltextserver/15148/ (last accessed 14th March 2015).
[25] Kumarasingham (2015).
[26] See chapters by Laksiri Fernando and Asanga Welikala in this volume.
[27] See e.g., C.R. de Silva, ‘The Overmighty Executive Reconsidered’ in Welikala (2015): Ch.26.