sanjana – Page 2 – Constitutional Reforms in Sri Lanka

Chapter 8 | The Right to Information as a Fundamental Right

Gehan Gunatilleke

Introduction

Information is fundamental to the functioning of a modern democracy and is a key element of the “overall global trend towards more open government.”[1] Without information, the scope for the people to exercise power through their elected representatives becomes obviously limited. The ‘right to information’ (RTI) accordingly emerges from the idea that popular sovereignty requires a system of governance that is transparent. Sri Lanka’s Constitution of 1978 unambiguously embraces this notion of sovereignty. Article 3 states “sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.” Yet Sri Lanka’s constitutional experience suggests that the articulation of popular sovereignty in the text of the constitution remains distinct from the fulfilment of this idea in practice. Transparency has scarcely featured in governance, rights jurisprudence, or elections in Sri Lanka. On the contrary, institutions have been designed to deny people information, thereby fostering a culture of secrecy as opposed to transparency.

On 15^th May 2015, Parliament enacted the Nineteenth Amendment to the Constitution. The amendment aimed to restore terms limits on the presidency, restrict – to some extent – the powers of the executive president, and restore institutional independence.[2] Alongside these primary aims, the amendment introduced a new fundamental right on RTI. The introduction of this right was largely welcomed as a step in the right direction, particularly in terms of expanding the gamut of justiciable rights. Yet the value of this expanded framework will ultimately be measured by the fruits of its practical application.

This chapter examines the constitutionalisation of RTI through the Nineteenth Amendment, and discusses its implications with respect to restoring the sovereignty of the people. The chapter is presented in three parts. The first part briefly discusses the philosophy behind RTI and the broad context within which the amendment was enacted. The second analyses the relevant text of the amendment and examines the extent to which RTI is guaranteed under the constitution. The final section discusses the need for further reform with an aim to build on the amendment and elaborate upon this newly recognised fundamental right.

1 Philosophy and Context

Terminology

RTI is often used interchangeably with the terms ‘freedom of information’ (FOI). There is, however, an important distinction in the terminology.[3] ‘FOI’ essentially contemplates a ‘negative’ right. The terminology implies the right of individuals to access information and the duty of the state not to impede such access except under specific, carefully defined circumstances. In this context, the state’s obligations are framed in passive terms – similar to the framing of the state’s obligations with respect to key civil and political rights, such as the freedom from torture, the freedom of speech and expression, and the freedom of association. A classic expression of FOI would be guarantees against censoring the media. It is argued that the people must be afforded the freedom of accessing information disseminated through the media, and that the state must refrain from unduly censoring or restricting such access.

The language of ‘RTI’, by contrast, implies that individuals have a right to receive information, and that the state has a corresponding duty to provide information. The terminology is similar to the ‘positive’ articulation of many socioeconomic rights such as the rights to health, education, and housing.[4] Thus, under RTI, the state’s obligations are framed in active terms; the state is expected to fulfil the right by providing information and actively facilitating access. In India, the semantics of ‘RTI’ have been preferred to ‘FOI’ precisely for this reason.[5] Similarly, in Mexico, the constitution was amended in 1977 to provide that “access to information will be guaranteed by the State” (emphasis added).[6] This conception of the right permits a broader definition of information – not only as an important ingredient for public accountability, but also as a commodity over which the people have proprietary interests. The people elect public officials to represent their interests in matters of governance and public policy, and to run the affairs of state on their behalf. Since the people confer this authority on elected representatives and public officials, the information they deal with remain the property of the people. Therefore, information is not merely of instrumental value. It is seen as ‘belonging’ to the people. As rightful owners of the information held by the state, the people have a right to access such information. Therefore, despite the significant conceptual overlap between RTI and FOI, the two articulations of the right have distinct foundations.[7]

In Sri Lanka, the terminology used has largely depended on the context of the conversation. Early conversations on the subject framed the right as a negative right. For instance, in 1996, the Committee to Advise on the Reform of Laws Affecting Media Freedom and Freedom of Expression[8] recommended the enactment of a ‘Freedom of Information Law’. The several drafts that were produced and discussed during the late 1990s and early 2000s used the terminology of ‘FOI’. In late 2014, the terminology was clearly framed in positive terms, where Maithripala Sirisena, the Common Opposition candidate for the presidential election, pledged to ‘introduce a Right [to] Information Act’.[9] This terminology was retained in the draft RTI Bill that was circulated in early 2015.[10] The Nineteenth Amendment adopts a slightly more conservative terminology, though perhaps retaining the flavour of ‘RTI’ as opposed to ‘FOI’.

The Campaign

By the time the Nineteenth Amendment was enacted in May 2015, several FOI/RTI campaigns had been launched by civil society and media actors in Sri Lanka. These campaigns warrant brief discussion in order to place the amendment in its proper context.

Between 1995 and 2000, there were several attempts to introduce constitutional reform, which included references to FOI. The Draft Constitution Bill of 2000 very specifically recognised FOI. Article 16(1) provided: “Every person shall be entitled to…the freedom to seek, receive and impart information…” (emphasis added).[11] This framing very much echoed the language of Article 19 of the International Covenant on Civil and Political Rights (ICCPR).[12] However, due to the subsequent breakdown in talks between the two main political parties, the Sri Lanka Freedom Party and the United National Party, the Draft Constitution Bill failed upon its introduction in Parliament.

During the Chandrika Kumaratunga-Ranil Wickremesinghe cohabitation government of 2001-2004, civil society groups and media organisations succeeded in negotiating a draft FOI law.[13] This draft was an improvement on a previous Law Commission draft. It included whistle-blower protection and established an Information Commission, although it still fell short of international best practices.[14] A final version of Bill was then prepared by the Legal Draftsman’s Department and was approved by Cabinet in January 2004. However, the collapse of the government and the dissolution of Parliament in 2004 brought an abrupt end to the campaign. The draft Bill was not presented in Parliament as a result.

Following the election of current President Maithripala Sirisena in January 2015, a new campaign to enact an RTI law was launched. The new government appointed a drafting committee comprising government officials and civil society actors and produced a revised version of the 2004 Bill. The Bill was welcomed by most, but was also criticised for including broad restrictions.[15] For instance, the Bill provided that information requests shall be refused if “the disclosure of such information would…harm the commercial interests of any person” – a restriction that was patently overreaching.[16] The new Bill, however, was not tabled in Parliament prior to its dissolution in late June 2015.

It is clear that the RTI campaign in Sri Lanka has had a reasonably long history. Thus the inclusion of the right in the Nineteenth Amendment was welcomed. In this context, the amendment may be considered the first tangible legislative victory for a campaign that had hitherto endured numerous disappointments.

Jurisprudence

Prior to delving into the text of the Nineteenth Amendment, it may be useful to briefly discuss the fundamental rights jurisprudence relevant to RTI. The case law suggests that the Sri Lankan constitution implicitly recognises RTI. Two provisions in the fundamental rights chapter of the constitution are relevant in this regard. Article 10 guarantees to every person – including non-citizens – the freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice. It is possible to argue that unimpeded access to information is implicit in the freedom of thought. Thus every person within the territory of Sri Lanka has an implicit right to the information necessary for the full exercise of other freedoms such as the freedom of thought.

It is appreciated that the argument that all persons have an implicit right to information by virtue of their absolute freedom of thought can appear tenuous. However, there is judicial precedent to suggest that the argument has some merit. In Fernando v. the Sri Lanka Broadcasting Corporation (1996) Justice Mark Fernando observed – albeit obiter – that “information is the staple food of thought, and that the right to information … is a corollary of the freedom of thought guaranteed by Article 10.”[17] He added that under the constitution, “no restrictions are permitted in relation to freedom of thought,”[18] thereby implying that a broad unrestricted conception of RTI was conceivable under the constitution. Unfortunately, the case before the Supreme Court was not specifically under Article 10, and no further pronouncement was possible.

Meanwhile, there is ample jurisprudence which confirms that Article 14(1)(a) of the constitution implicitly guarantees FOI – and to an extent RTI – to Sri Lankan citizens. Article 14(1)(a) guarantees the freedom of speech and expression including publication. It is noted that, unlike Article 10, the rights under Article 14(1)(a) are subject to limitations. These restrictions must be defined by law and must be related to or in the interest of racial and religious harmony, parliamentary privilege, contempt of court, defamation or incitement to an offence, or national security.[19] Nevertheless, the courts have been willing to recognise that the express guarantees under Article 14(1)(a) require implied guarantees pertaining to FOI/RTI.

Early cases adopted a more cautious view of implied guarantees under Article 14(1)(a). In Visuvalingam v. Liyanage (1984), the Supreme Court observed:

“Public discussion is not a one-sided affair. Public discussion needs for its full realisation the recognition, respect and advancement, by all organs of government, of the right of the person who is the recipient of information as well. Otherwise, the freedom of speech and expression will lose much of its value.”[20]

The Court in this case advanced the notion of a negative right, as it recognised the legal standing of newspaper readers to challenge the state’s decision to ban a newspaper called The Saturday Review. Thus the Court was willing to conceive of FOI insofar as the state had a duty not to unduly restrict information. The Court held that the constitution implicitly contained FOI vis-à-vis Article 14(1)(a), although it eventually dismissed the application on its merits.

In the aforementioned case of Fernando v. the Sri Lanka Broadcasting Corporation, the Supreme Court further substantiated the relationship between express and implied guarantees of fundamental rights in the constitution. It held that express guarantees extended to and included implied guarantees necessary to make the express guarantees meaningful.[21] Hence it was held that elements relating to FOI, such as the “right to obtain and record information,” were implied guarantees that made the express guarantee of the freedom of speech and expression meaningful.[22] The Court, however, stopped short of recognising RTI simpliciter as part of the freedom of speech and expression.[23] Thus the judgement is not sufficient to advance the view that Sri Lankan citizens – by virtue of their freedom of speech and expression – also have RTI, which the state is constitutionally bound to fulfil.

In the later case of Environmental Foundation Limited v. Urban Development Authority (2005),[24] also known as the Galle Face Green Case, the Court expanded the scope of the implied right. The case involved the Urban Development Authority’s (UDA) decision to alienate state-owned property to a private company without the knowledge of the public. The Court held that, although there is no explicit reference to RTI in the constitution, the freedom of speech and expression including publication guaranteed by the constitution under Article 14(1)(a) includes the right to receive information on matters of public interest. In his seminal judgment, Chief Justice Sarath N. Silva observed:

“[T]he ‘freedom of speech and expression including publication’ guaranteed by Article 14(1)(a) to be meaningful and effective should carry within its scope an implicit right of a person to secure relevant information from a public authority in respect of a matter that should be in the public domain. It should necessarily be so where the public interest in the matter outweigh[s] the confidentiality that attach to affairs of State and official communication.”[25]

Crucially, the Court was inclined to draw a nexus between the implicit right to secure relevant information and Article 4(d) of the constitution, which articulates “the manner in which the sovereignty of the People shall be exercised in relation to fundamental rights.”[26] The Court, for the first time, acknowledged the nexus between popular sovereignty and RTI, and the necessary obligation of the state to fulfil this right. It held:

“The UDA is an organ of Government and is required by the provisions of Article 4(d) to secure and advance the fundamental rights that are guaranteed by the Constitution. It has an obligation under the Constitution to ensure that a person could effectively exercise the freedom of speech, expression and publication in respect of a matter that should be in the public domain. Therefore a bare denial of access to official information … amounts to an infringement of the Petitioner’s fundamental rights as guaranteed by Article 14(1)(a) of the Constitution.”[27]

Therefore, the Supreme Court recognised RTI simpliciter, to the extent that the information sought was in the public interest. The corresponding obligation of the state was therefore acknowledged as ‘positive’ in that it contemplated a duty to provide the relevant information to the public. The Galle Face Green Case accordingly marks an important departure from the conservative approach previously adopted by the courts. In fact the judgment set the stage for the constitutional recognition of RTI and the process through which RTI could be fulfilled. However, this opportunity was not seized, as the then government under President Mahinda Rajapaksa was instead more interested in plunging the country into a deep and pervasive culture of secrecy.[28] It was not until January 2015 that the campaign for RTI was reignited and the prospects of constitutional and statutory reform became once again plausible.

2 The Text and its Failings

Article 14A

The Nineteenth Amendment introduced Article 14A into the fundamental rights chapter of the Sri Lankan constitution, which provides:

“(1) Every citizen shall have the right of access to any information as provided for by law, being information that is required for the exercise or protection of a citizen’s right held by:-

(a) the State, a Ministry or any Government Department or any statutory body established or created by or under any law;

(b) any Ministry of a Minster of the Board of Ministers of a Province or any Department or any statutory body established or created by a statute of a Provincial Council;

(d) any other person, who is in possession of such information relating to any institution referred to in sub-paragraphs (a) (b) or (c) of this paragraph.”

At the outset, it should be noted that the right envisaged by Article 14A only extends to Sri Lankan citizens. Thus its reach is narrower that that of Articles 10, 11, 12 and 13, which apply to ‘persons.’

A textual reading of Article 14A suggests that it contains three limbs. The first limb suggests that access to information under Article 14A is contingent on a pre-existing process already provided for by law. It may be reasonably assumed that the drafters of the Nineteenth Amendment contemplated a corresponding RTI law that would substantiate the fundamental right and establish a process through which citizens could access information. It was, after all, drafted at a time when an RTI Bill was also in the legislative pipeline. However, as discussed in the preceding section, the RTI Bill was not tabled in Parliament. In the absence of such supporting legislation, this limb – in isolation – is somewhat problematic, as it makes access to information dependent on a pre-existing legislative framework. It may be argued – though from a distinctly textualist standpoint – that the absence of a pre-existing legislative process through which information could be obtained precludes, in itself, such access. For example, the information sought in the Galle Face Green Case could not have been obtained from the UDA, as the UDA Law No. 41 of 1978 does not explicitly provide for the publication of agreements between the Authority and third parties. A citizen could, however, invoke the new Article 14A to obtain a copy of a draft development plan, which under Section 8G of the Law must be made available for public inspection. It is worth noting that a pre-existing statutory duty to provide information can in any event be canvassed through the administrative law remedies available under Article 140 of the constitution.[29] Hence Article 14A only appears to expand the scope of remedies available to a citizen, rather than create a completely new avenue through which RTI could be vindicated.

A more purposive reading of Article 14A suggests that a citizen could invoke the fundamental rights jurisdiction of the Supreme Court to exploit pre-existing legislative frameworks that were hitherto extremely restrictive. One example that springs to mind is the Declaration of Assets and Liabilities Law No.1 of 1975 (as amended by Act No.74 of 1988), which provides a limited opportunity to a person to access a public official’s assets declaration.[30] Section 5(3) of the Law provides:

“Any person shall on payment of a prescribed fee to the appropriate authority have the right to call for and refer to any declaration of assets and liabilities and on payment of a further fee to be prescribed shall have the right to obtain that declaration.”

However, Section 8(1) of the Law imposes a peculiar restriction on any person who obtains information through the process defined under the Law. It provides:

“A person shall preserve and aid in preserving secrecy with regard to all matters relating to the affairs of any person to whom this Law applies, or which may come to his knowledge in the performance of his duties under this Law or in the exercise of his right under subsection (3) of section 5 (emphasis added).”

Thus the Law prevents the disclosure of an assets declaration obtained by virtue of Section 5(3). A person only appears to have a right to obtain the information, and not to share with others or publish such information, even in the public interest. On obtaining the assets declaration, a person can only refer the declaration to the appropriate authority, which could then conduct an investigation or take further action.

With the introduction of Article 14A, it is possible to argue that a citizen[31] has a right to invoke the fundamental rights jurisdiction of the Supreme Court to gain access to the assets declarations of certain public officials. The pre-existing process provided for by law, i.e. the Declaration of Assets and Liabilities Law, arguably qualifies an assets declaration to be included under Article 14A, provided it satisfies limbs two and three discussed below. In this context, it is worthwhile considering whether a citizen could invoke the fundamental rights jurisdiction of the Court without first seeking to obtain the asset declaration via Section 5(3) of the Law. Such an interpretation will certainly require a creative departure from the literal meaning of Article 14A. However, if such an interpretation was upheld, a citizen may no longer be bound by the restrictions of Section 8(1) of the Law, as he did not obtain the declaration by exercising his right under Section 5(3) of the Law in the first place. The citizen may therefore share or publish the assets declaration obtained through a fundamental rights application. This interpretation, though clearly optimistic, clashes neither with Article 14A(2) nor Article 16(1) of the constitution.[32] Article 14A(2) provides:

“No restrictions shall be placed on the right declared and recognized by this Article, other than such restrictions prescribed by law as are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals and of the reputation or the rights of others, privacy, prevention of contempt of court, protection of parliamentary privilege, for preventing the disclosure of information communicated in confidence, or for maintaining the authority and impartiality of the judiciary.”

It could be argued that in the absence of any direct reliance on the Declaration of Assets and Liabilities Law, an assets declaration does not fall within any of the restrictions prescribed by law. The secrecy provisions of the Declaration of Assets and Liabilities Law do not directly refer to any of the prescribed grounds listed in Article 14A. They do, however, by their very definition, qualify as “information communicated in confidence.” Yet if the asset declaration is obtained through the intervention of the Court and not through Article 5(3), it becomes difficult to maintain that the communication was confidential. Thus a petitioner could potentially argue that the Declaration of Assets and Liabilities Law does not restrict the right to access a public official’s asset declaration through a fundamental rights application.

The second limb of Article 14A stipulates that the relevant information is required for the “exercise or protection of a citizen’s right.” It is reasonable to assume that the terms ‘citizen’s right’ relates to the fundamental rights recognised in the constitution. The term ‘right’ is not used in any other context. Thus, for example, a citizen has a right to access a particular piece of information if such information relates to his or her freedom of speech and expression including publication guaranteed by Article 14(1)(a). Similarly, under Article 14A, a citizen could seek to access information required to protect his or her right to equality guaranteed by Article 12(1).

This limb, however, restricts the scope of the right, as it attaches another prerequisite to the exercise of right. For instance, the right to housing is not explicitly recognised under the Sri Lankan constitution. Therefore, a citizen may not ex facie be eligible to access information held by the Ministry of Housing. The citizen concerned will need to establish that the information sought relates to his or her right to equality or some other justiciable right found in the fundamental rights chapter of the constitution in order to invoke the jurisdiction of the Supreme Court. In this context, Article 14A mainly succeeds in making express what the Supreme Court has previously held to be implied. RTI was considered to be an implied right only because it related to Articles 10 and 14(1)(a). By restricting the scope of its application to instances where another right is involved, Article 14A entrenches the principle enunciated by the Supreme Court. To its credit, however, Article 14A expands on the implied right previously recognised by the Court. As one might recall, the Court in the Galle Face Green Case opined that the implied right only extends to information required for the exercise of rights under Article 14(1)(a) in the public interest. Article 14A appears to dispense with the public interest prerequisite and also includes information that is only relevant to the exercise or protection of an individual citizen’s rights.

In the case of assets declarations, it could be argued that information on the assets of a government department head, or a chairperson of a public corporation is relevant to the exercise of a citizen’s freedom of speech and expression including publication. If, for example, a journalist required such information for an article, such information could potentially be sought through a fundamental rights application naming the Secretary to the relevant Ministry as a respondent.[33]

The third and final limb of Article 14A concerns the actor or institution in possession of the information. Article 14A(1) requires that the relevant information be in the possession of certain specified institutions, or ‘any other person’ in possession of information relating to a specified institution. Article 14A(1)(a), however, makes an explicit reference to the ‘state.’ The ‘state’ is not specifically defined in the Sri Lankan constitution. Therefore, such reference must be interpreted to mean ‘agents’ of the state, including all state functionaries and officials.[34] It remains to be seen whether the definition of ‘state’ would be limited to officials exercising executive and administrative action. Regardless of the precise definition of the term, Article 17 provides that a fundamental rights application would lie only if the infringement of Article 14A was by ‘executive or administrative action.’[35] Thus relief could be sought against a private actor in possession of relevant information provided the actor falls within the scope of ‘executive or administrative action.’ It is noted that the jurisprudence of the Court has extended the scope of ‘executive or administrative action’ to include private entities that act as agents of the state.[36] However, Article 14A casts a much wider net, as it applies to anyone in possession of certain types of information. In this context, it would be interesting to discover the Court’s approach to reconciling what appears to be an incongruence between Article 14A and Article 17.

Once again, in the case of assets declarations, the relevant information is bound to be in the possession of a state functionary or official, thereby falling within the ambit of Article 14A. For example, in the case of assets declarations of office-bearers of recognised political parties, the relevant information would be in the possession of the Commissioner of Elections.[37] Thus a citizen could potentially file a fundamental rights application to compel the Commissioner to release an assets declaration, which the citizen argues is required for the exercise or protection of another fundamental right.

Weaknesses in the New Framework

The aforementioned limbs of Article 14A are extremely restrictive. In the absence of existing laws that provide for access, Article 14A would be virtually inapplicable. Even where laws exist – such as the Declaration of Assets and Liabilities Law – a creative interpretation of Article 14A would ultimately be necessary for it to be useful in vindicating RTI. Thus, from a rights perspective, Article 14A appears to be a disappointment. Three key weaknesses in Article 14A may be highlighted.

First, it is worth noting that the original version of Article 14A as per the draft Nineteenth Amendment Bill was far better than the final version that was enacted. Only one of the three aforementioned restrictive limbs was included in the version that was first tabled in Parliament.[38] The original version only included the prerequisite that the relevant information be required for the exercise or protection of a citizen’s right. Yet the original version made no reference to a prerequisite that access must be “as provided for by law.” A citizen would not have been required to first establish that the access he or she sought was already provided for by existing legislation. Thus, in the absence of supporting RTI legislation, Article 14A’s potency appears to be limited. Moreover, the original version did not restrict the terms “any other person” to those who had in their possession information related to a specified institution. Instead, a citizen could seek access to any information held by any person, provided that the information was required for the exercise or protection of a citizen’s rights.

Second, the final version of Article 14A included more restrictions on the right. The original version of the Article did not include the prevention of contempt of court and the protection of parliamentary privilege. Therefore, amending provisions to existing laws (or new laws) that specifically restrict RTI on the basis of preventing the contempt of court and protecting parliamentary privilege may be enacted in the future. In the context of the freedom of speech and expression, both these grounds for restriction have been viewed with deep suspicion. For instance, the Law Commission of Sri Lanka observed that “[t]oo harsh a law on contempt can act as a barrier to the development of a healthy and vibrant jurisprudence.”[39] Similarly, the R.K.W. Goonesekere Committee concluded that constitutional provisions that made parliamentary privilege a ground for restricting free speech were “wholly inconsistent with Sri Lanka’s obligations under international law.”[40] It is no doubt reasonable to extend these apprehensions to RTI.

Finally, Article 14A is arguably impracticable, as it places a heavy burden on the Supreme Court to monitor compliance with its orders granting access to information. The Court would not be unaccustomed to its ‘just and equitable’ jurisdiction under Article 126(4) of the constitution. Such a jurisdiction often requires regular compliance monitoring. Yet the Court is still likely to be severely inconvenienced by the prospect of directing respondents to grant access to information and thereafter dealing with complaints on non-compliance. Questions of compliance may be better left to a dedicated body such as an Information Commission with a specific mandate to hear complaints regarding the denial of information requests. The Nineteenth Amendment does not establish such a body, nor does it name such a body as one of the institutions falling within the purview of the re-established Constitutional Council.[41] The Council was specifically re-established under the Nineteenth Amendment to depoliticise public institutions and restore institutional independence. Therefore, even if an Information Commission is later established through appropriate legislation, there are no constitutional guarantees pertaining to its independence.

Conclusion: The Challenge Ahead

The foregoing analysis reveals that the Nineteenth Amendment fails to meaningfully constitutionalise RTI. Three concluding observations may be offered in this respect. These observations may also be useful in terms of setting the agenda for future reform.

First, it is crucial that the Sri Lankan state and citizenry view RTI as a multifaceted right. It is important that the right is viewed both as a negative right and as a positive right. Individuals must be guaranteed both the right to freely access information and the right to easily receive information. In this context, the state has corresponding duties not to unduly restrict access to information and to provide information to individuals. Establishing a culture of transparency will therefore require a conceptualisation of RTI that is holistic; and a holistic conception of the right will need to be reflected in the text of the constitution. In this context, the relevant provisions in the fundamental rights chapter ought to frame the right in the broadest sense possible, with minimal prerequisites and restrictions. For instance, the restrictive language analysed in the preceding discussion would need to be removed from the current text of Article 14A. Additionally, it may be necessary to explicitly recognise the negative aspect of RTI by expanding the scope of Article 14(1)(a). The current language pertaining to the freedom of speech and expression could be expanded to include a right to ‘seek, receive and impart information’ in line with Article 19 of the ICCPR. If these reforms are treated as high on the constitutional reform agenda, and are introduced in the short to mid term, it is possible to conceive of a deeper constitutionalisation of the right.

Second, the constitutionalisation of RTI must be supplemented by legislation that elaborates upon the fundamental right. The current RTI Bill is worth noting in this context. The Bill sets out a reasonably sound process through which a citizen could apply for and access information in the possession of a public authority. The term ‘public authority’ includes private entities or organisations “carrying out a statutory or public function or a statutory or public service … but only to the extent of activities covered by that statutory or public function or that statutory or public service.”[42] Moreover, the Bill contains a prevalence clause. Section 4(1) of the Bill provides:

“The provisions of this Act shall have effect notwithstanding anything to the contrary in any other written law, and accordingly in the event of any inconsistency or conflict between the provisions of this Act and such other written law, the provisions of this Act shall prevail.”

This clause is encouraging, as it sets out the basis on which the future RTI Act could supersede older laws that are designed to restrict access to information. The Act would effectively trump laws such as the Official Secrets Act No.32 of 1955, which exerts considerable pressure on officials to withhold information that may be considered sensitive, and the Sri Lanka Press Council Law No.5 of 1973, which restricts the publication of information that may “adversely affect the economy.”[43] The prevalence clause may also empower public servants constrained by non-disclosure provisions in the Establishments Code.[44]

Third, a process of conscientisation[45] ought to take place to ensure that the people understand the nature and extent of their RTI and acknowledge its inherent relationship to their sovereignty. Constitutional and statutory reform must be followed by a long-term strategy that aims to create a RTI consciousness among the people. The experience in India suggests that such a process may take years, particularly as individuals become more accustomed to the RTI processes in place and begin to understand their use. Moreover, the culture of secrecy entrenched within state institutions will take years to unravel. It will no doubt take several years of trial and error and institutional learning before the state begins to effectively fulfil RTI. In this context, legal reform will by no means be a sufficient indication of progress.

It would appear that the new Sri Lankan government that was installed after the general elections of August 2015 is confronted with a threefold challenge. It must first expand on the constitutional articulation of the right in order to ensure that the constitutionalisation of RTI is meaningful. Moreover, it must meet the public’s expectations of an effective statutory framework that elaborates on the right by enacting an RTI Act sooner rather than later. Finally, it must embark on a programme of action that transforms the culture of secrecy that presently plagues state institutions and actors. It is only through such a holistic approach to RTI that the people’s sovereignty – that constitutional first principle – might find meaningful expression in Sri Lanka.

[1] See T. Mendel (2014) Right to Information: The Recent Spread of RTI Legislation (Washington: World Bank): p.1.

[2] See A. Welikala, ‘The Nineteenth Amendment is a constitutional milestone in Sri Lanka’s ongoing political development’, The UCL Constitution Unit Blog, May 2015: http://constitution-unit.com/2015/05/21/the-nineteenth-amendment-is-a-constitutional-milestone-in-sri-lankas-ongoing-political-development (last accessed 12^th March 2016); G. Gunatilleke & N. de Mel (2015) 19^th Amendment: The Wins, the Losses and the In-betweens (Colombo: Verité Research) for discussions on the contents of the amendment.

[3] Mendel (2014): p.1. The author notes: “Originally often referred to as freedom of information laws (Australia, Norway, United States) and access to information or documents laws (Canada, Colombia, Denmark), a more recent trend (starting with India in 2005) had been to use the title RTI laws, reflecting the recognition of RTI as human right.”

[4] For a useful discussion on positive and negative rights in constitutional law, see D.P. Currie, ‘Positive and Negative Constitutional Rights’ (1986) The University of Chicago Law Review 53(3): pp.864-890. For a broader discussion, see J. Donnelly (2003) Universal Human Rights in Theory and Practice (Ithaca, NY: Cornell University Press): p.30.

[5] See the Right to Information Act 2005 (India). The long title of the Act describes it as “An Act to provide for the setting out of the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.” Also see R. Jenkins & A.M. Goetz, ‘Accounts and Accountability: Theoretical Implications of the Right-to-Information Movement in India’ (1999) Third World Quarterly 20(3): pp.603-622.

[6] Constitution of Mexico (1917): Article 6, as amended.

[7] For a further discussion on comparative experiences, see J.M. Ackerman & I.E. Sandoval-Ballesteros, ‘The Global Explosion of Freedom of Information Laws’ (2006) Administrative Law Review 58(1): pp.85-130.

[8] R.K.W. Goonesekere Committee Report (1996) Report of the Committee to Advise on the Reform of Laws Affecting Media Freedom and Freedom of Expression; also see K. Pinto-Jayawardena & G. Gunatilleke, ‘One Step Forward, Many Steps Back: Media Law Reform Examined’ in W. Crawly, D. Page & K. Pinto-Jayawardena (Eds.) (2015) Embattled Media: Democracy, Governance and Reform in Sri Lanka (London: Institute of Commonwealth Studies): p.188.

[9] Manifesto of the New Democratic Front (2014): p.17.

[10] The long title of the draft Right to Information Bill (L.D.O 4/2015) describes it as “An Act to provide for the right to information; specify grounds on which access may be denied; the establishment of the Right to Information Commission; the appointment of Information Officers; setting out the procedure for obtaining information and for matters connected therewith or incidental thereto.”

[11] Bill (No.372) to repeal and replace the Constitution of the Democratic Social Republic of Sri Lanka (August 2000): Article 16(1).

[12] Article 19(2) of the ICCPR provides: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” See UN General Assembly, International Covenant on Civil and Political Rights, 16^th December 1966, United Nations, Treaty Series, vol. 999, p.171.

[13] Pinto-Jayawardena & Gunatilleke (2015): p.207.

[14] See G. Gunatilleke (2014) The Right to Information: A Guide for Advocates (Colombo: Sri Lanka Press Institute; UNESCO): p.61, for an analysis of both drafts.

[15] See Verité Research (2015) Observations on the Draft Right to Information Bill.

[16] Right to Information Bill (L.D.O. 4/2015): Section 5(1)(d).

[17] (1996) 1 SLR 157: p.171.

[18] Ibid: p.179.

[19] See Constitution of Sri Lanka (1978): Article 15(7), which provides: “The exercise and operation of all the fundamental rights declared and recognized by Articles 12, 13(1), 13(2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society. For the purposes of this paragraph “law” includes regulations made under the law for the time being relating to public security.”

[20] (1984) 2 SLR 123: p.131.

[21] (1996) 1 SLR 157: p.179.

[22] Ibid.

[23] Ibid.

[24] SC (F.R.) Application No. 47/2004, judgment dated 28^th November 2005.

[25] Ibid: p.6.

[26] Ibid.

[27] Ibid: p.7.

[28] See Pinto-Jayawardena & Gunatilleke (2015).

[29] Article 140 of the constitution provides: “Subject to the provisions of the Constitution, the Court of Appeal shall have full power and authority to inspect and examine the records of any Court of First Instance or tribunal or other institution, and grant and issue, according to law, orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo warranto against the judge of any Court of First Instance or tribunal or other institution or any other person.”

[30] According to Section 2 of the Law, the relevant officials include Members of Parliament, Judges, Public Officers appointed by President or Cabinet Ministers, staff officers in Ministries and government departments (i.e. additional secretaries, deputy secretaries, assistant secretaries and heads of departments), chairmen, directors, board members, staff officers of public corporations, elected members and staff officers of local authorities, office bearers of ‘recognised’ political parties, and executives of trade unions.

[31] Article 14A(3) provides: “In this Article, “citizen” includes a body whether incorporated or unincorporated, if not less than three-fourths of the members of such body are citizens.”

[32] Article 16(1) provides: “All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter.” It is noted that the Declaration of Assets and Liabilities Law No.1 of 1975 (as amended) continues to be valid and operative. Article 14A will (if at all) only provide for an alternative channel through which a citizen could obtain an asset declaration of a public official.

[33] See Section 4(d) of the Declaration of Assets and Liabilities Law No.1 of 1975 (as amended).

[34] See Wickremratne v. Jayaratne (2001) 3 SLR 161: p.176. The Court of Appeal observed that the “State … has necessarily to act through its officials or functionaries”. Also see Peter Leo Fernando v. The Attorney General (1985) 2 SLR 341.

[35] Article 17 of the Constitution of Sri Lanka (1978) provides: “Every person shall be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the infringement or imminent infringement, by executive or administrative action, of a fundamental right to which I such person is entitled under the provisions of this Chapter.”

[36] See Leo Samson v. Sri Lankan Airlines (2001) 1 SLR 94; Jayakody v. Sri Lanka Insurance and Robinson Hotel (2001) 1 SLR 365.

[37] Declaration of Assets and Liabilities Law, No.1 of 1975 (as amended): Section 4(Ia).

[38] See Nineteenth Amendment to the Constitution (L.D.O. 20/2015): Section 2.

[39] The Law Commission of Sri Lanka, Draft Contempt of Court Bill proposed by the Law Commission of Sri Lanka (2008), http://lawcom.gov.lk/web/images/stories/reports/draft_contempt_of_court_bill_2008.pdf (last accessed 13^th March 2016): p.5.

[40] Pinto-Jayawardena & Gunatilleke (2015): p.204. Also see R.W.K. Goonesekere Committee Report (1996): pp.13-14.

[41] Article 41B(1) provides: “No person shall be appointed by the President as the Chairman or a member of any of the Commissions specified in the Schedule to this Article, except on a recommendation of the Council.” The Schedule comprises: (a) The Election Commission (b) The Public Service Commission (c) The National Police Commission (d) The Audit Service Commission (e) The Human Rights Commission of Sri Lanka (f) The Commission to Investigate Allegations of Bribery or Corruption (g) The Finance Commission (h) The Delimitation Commission and (i) The National Procurement Commission.

[42] Right to Information Bill (L.D.O. 4/2015): Section 46.

[43] See Sri Lanka Press Council Law No.5 of 1973: Section 16(4). Other laws that restrict access to particular types of information include the Profane Publication Act No.41 of 1958, the Public Performance Ordinance No.7 of 1912, the Obscene Publications Ordinance No.4 of 1927, and the Prevention of Terrorism Act No.48 of 1979.

[44] See Establishments Code of Sri Lanka: Section 3 of Chapter XXX1 of Volume 1 and Section 6 of Chapter XLVII of Volume 2. The Code provides: “No information even when confined to statement of fact should be given where its publication may embarrass the government, as a whole or any government department, or officer. In cases of doubt the Minister concerned should be consulted.”

[45] “Conscientisation” is a concept developed by Brazilian educator Paulo Freire. It is usually defined as “[t]he process of developing a critical awareness of one’s social reality through reflection and action.” See “Concepts used by Paulo Freire”, http://www.freire.org/component/easytagcloud/118-module/conscientization/ (last accessed 12^th March 2016). Also see P. Freire (2000) Pedagogy of the Oppressed: 30^th Anniversary Edition (New York: Continuum).

Chapter 12 | The Nineteenth Amendment in Comparative Context: Classifying the New Regime-Type

Artak Galyan

Introduction

The Nineteenth Amendment to the Constitution, enacted in April 2015, has considerably changed the constitutional framework of Sri Lanka. Some of the most crucial shifts have been in the nature of the executive system, with the change of the powers and the institutional relationships between the president, the cabinet, the prime minister, and the legislature. It is both useful and appropriate to consider the changes wrought by the Nineteenth Amendment through the concept of semi-presidentialism, in particular to see how it has changed the executive branch and the coordination between the executive and legislative powers. The Nineteenth Amendment has turned Sri Lanka from a ‘president-parliamentary’ system with sweeping presidential powers to a ‘premier-presidential’ system with less presidential powers.

In this regard it is important to first discuss the distinctive characteristics of semi-presidential systems, highlight their most frequently discussed problematic features, and juxtapose these to empirical cross-case evidence. Second, it is useful to build the Sri Lanka’s constitutional framework established by the Nineteenth Amendment into a comparative context with other historical and contemporary cases of semi-presidentialism. Finally, it is useful to consider what the theoretical insights and empirical evidence of the existing literature tell us about the future of the new form of semi-presidentialism in Sri Lanka. It is important to note that this chapter only covers the changes introduced by the Nineteenth Amendment that relate to the structure of the executive branch and executive-legislative coordination. Other important changes introduced by the Nineteenth Amendment are consequently out of the scope of this chapter.

The chapter is structured as follows. The first section provides a short background to the concept of semi-presidentialism and its definitions, as well as the distinctiveness of semi-presidential systems from both parliamentary and presidential ones. Section 2 discusses the most commonly raised criticisms of semi-presidentialism and juxtaposes these critical arguments against the findings of the existing cross-case comparative research. This section pays particular attention to the phenomena of cohabitation as well as divided and minority governments. The section ends with the discussion of the factors that determine formation and control of executive power in semi-presidential systems. In section 3 I briefly describe the changes that the Nineteenth Amendment has introduced to the structure of the executive power, as well as its relations with the legislative power. The final section provides a discussion of the constitutional amendment in light of the theoretical arguments and empirical findings in the existing literature.

Semi-presidentialism: Definitions and Constitutive Characteristics

Reflecting on the form of government of the French Fifth Republic, Maurice Duverger was the first to identify semi-presidentialism as a distinct form of government. The early conceptualisation by Duverger, which first emerged in 1970, was further elaborated in his 1980 article. He defined semi-presidentialism as a political system where there is a popularly elected president who possesses quite considerable powers and is faced with a prime minister and a cabinet that have executive power and who stay in power as long as they enjoy the support of the parliament.^{^[1]} At the time Duverger identified seven countries meeting these criteria: Austria, Finland, France, Iceland, Ireland, Portugal, and the historical case of the German Weimar Republic.

Duverger’s definition has been criticised for its combination of institutional and behavioural attributes. The behavioural attribute of ‘possessing quite considerable power’ has been brought up as a source of conceptual ambiguity and empirical confusion.^{^[2]} Overcoming the problems identified with the Duvergerian definition, Robert Elgie has suggested what is currently the most widely accepted definition. According to him semi-presidentialism is a form of government where a directly elected president is facing a prime minster and cabinet who are collectively responsible to the legislature.^{^[3]} Unlike Duverger, Elgie’s definition has no behavioural attribute and is restricted solely to the institutional characteristics of semi-presidentialism.

Elgie’s definition has been crucial in several respects. The first and most important contribution of the purely institutional definition has been the emergence of semi-presidentialism as a distinct form of government, rather than a hybrid system shifting between that of parliamentary and presidential properties. Elgie’s definition has been useful in avoiding a lot of the confusion related to the arbitrary assignment of the label of semi-presidentialism based on the interpretation of behavioural elements of the definition in a number of separate cases. Instead the purely institutional attributes which are easily identified through a country’s constitution leave little room for debate whether a country is semi-presidential or not.

Despite its obvious advantages Elgie’s definition does not address another problem of semi-presidentialism – extreme heterogeneity of formal constitutional powers of actors and the often quite divergent actual behaviour they exhibit in these systems.^{^[4]} This extreme variation poses considerable difficulties for cross-case comparative empirical analysis and causal inference.^{^[5]} Several attempts have been made in accounting for the institutional and behavioural variation within semi-presidential systems through developing metrics of presidential power.^{^[6]} Given such extreme variation of formal powers, what is it then that makes semi-presidentialism a distinct form of government?

The distinctness of semi-presidential systems becomes evident if we think of government systems as chains of delegation of political authority from voters to politicians and state institutions. This view has been elaborated early by Matthew Shugart and John Carey^{^[7]} and further discussed by Shugart,^{^[8]} and Shugart and David Samuels,^{^[9]} as well as research that uses principal agent theory.^{^[10]} Shugart suggested that origin and survival of the executive authority is a useful angle to look from when differentiating authority patterns in semi-presidential systems.^{^[11]} In parliamentary systems both the origins and survival of the chief executive (prime minister) is fused with that of the legislature.^{^[12]} The parliamentary majority is in this case the principal of the cabinet and prime minister, which are its agents.^{^[13]} In presidential systems the origin and survival of the executive are separated from the legislature.^{^[14]} President and legislature are elected separately by the people, and both are independent of each other for their survival. Semi-presidential systems are distinct in that one part of the dual executive, the president has its origin and survival separated from the parliament, while the other component, the prime minister and cabinet have both their origin and survival fused with the parliament.^{^[15]}

Using the differentiation of origin and survival of the executive presidents, cabinets and prime ministers, and legislatures, Shugart and Carey have proposed the most widely used framework for differentiating semi-presidential systems in an analytically useful way.^{^[16]} They identified two basic variations of semi-presidential systems: premier-presidential and president-parliamentary. At the root of this differentiation is the origin and survival, as well as the relative power of the directly elected president vis-à-vis the assembly. The most important differentiation concerns the formation and dissolution of the cabinet and the extent of legislative powers. In the president-parliamentary systems it is the president who forms and dissolves the government at his/her own discretion. Although parliamentary confidence is still required for the survival of the cabinet, it is the sole prerogative of the president to form the cabinet. The cabinet in this case remains accountable to both the president, who can dissolve the cabinet, and to the parliament to which the cabinet is accountable and can be dismissed through a no confidence vote. In premier-presidential systems the prime minister is formally chosen by the president, but the cabinet is solely dependent and accountable to the legislature. Once the president makes the prime ministerial appointment he/she has no control mechanism over the working of the cabinet. The sole right to dissolve the cabinet resides with the legislative majority. In terms of formal constitutional powers, it is the president who assumes control of the executive government in president-parliamentary systems, while in premier-presidential systems it is the prime minister.

Perils of Semi-Presidentialism? Arguments and Comparative Empirical Evidence

The effects and consequences of semi-presidentialism has been a subject of long and heated academic debates. In the context of highlighting the deficiencies of presidentialism for democratisation Juan Linz argued that semi-presidentialism exhibits the same problematic characteristics as presidentialism.^{^[17]} Linz has particularly and recurrently stressed the tendency of presidential systems to introduce a zero-sum element in political competition, to encourage personalisation of politics, and to undermine political parties. Later Linz and Alfred Stepan developed an additional and since than a standard critique of the destabilising effect of cohabitation and intra-executive conflict especially in new and fragile democracies.^{^[18]}

Cindy Skach presented a similar critique, arguing that the combination of shared power between prime minister and executive president and their unequal legitimacy and accountability create tensions in semi-presidential countries.^{^[19]} Arend Lijphart joined the critics of semi-presidentialism by arguing that it offers only a slight improvement over presidentialism and its perils.^{^[20]} The direct election of the president keeps the zero-sum nature of the political competition in place and encourages personalisation of politics along with weakening of institutions and political parties. Moreover, Lijphart argued that depending on the outcome of elections, semi-presidential systems can easily become ‘hyper-presidential’ with the presidents acquiring much more sweeping powers than any president in ‘pure’ presidential systems.

Other scholars have been more optimistic about the consequences of semi-presidentialism. For Giovanni Sartori, the presence of two independent executives is an advantage as it allows for ‘head shifting’ and greater institutional flexibility.^{^[21]}Considering the record of semi-presidentialism in Western Europe, Gianfranco Pasquino praised semi-presidential systems along similar lines for their supposed greater government capability and institutional flexibility.^{^[22]} Reflecting on the experience of post-communist Central and Eastern Europe and the former Soviet Union, François Frison-Roche comes to a similar conclusion, praising the flexibility of semi-presidentialism, its ability to adapt to various contexts, and as a system that best enables rapid transition from dictatorship to democracy.^{^[23]}

These reflections on the contribution of semi-presidentialism are however based on either single country studies, or are restricted to specific regions with particular historical and political trajectories, which may prevent a fuller assessment of the impact of semi-presidentialism. Large N comparative research on the impact of semi-presidentialism has produced much less categorical conclusions. In the work of Sophia Moestrup, and Jose Antonio Cheibub and Svitlana Chernykh, the comparison of parliamentary, semi-presidential, and presidential systems found no significant difference between semi-presidential and presidential regimes.^{^[24]} Taeko Hiroi and Sawa Omori show on the other hand that semi-presidential systems outperform parliamentary systems in democratic sustenance,^{^[25]} while Milan Svolik and Ko Maeda find that semi-presidential and presidential systems are more prone to regime termination.^{^[26]} These empirical findings show that the arguments about the deadly consequences of semi-presidentialism are somewhat exaggerated, since there is no conclusive evidence on their negative consequences compared to other regime types.

The comparative research has produced much more convincing findings on the varying effects of different types of semi-presidentialism. Elgie and Petra Schleiter show that premier-presidential systems are more conducive to survival than president-parliamentary systems.^{^[27]} Similarly premier-presidential systems exhibit higher democratic performance than president-parliamentary systems.^{^[28]} Moestrup comes to similar conclusions when analysing the regime effects in young democracies.^{^[29]} Her research shows that premier-presidential systems have better record of civil liberties and democratic survival.

Cohabitation and Divided Government

The case against semi-presidentialism usually revolves around two situations that are said to be threatening to democracy: cohabitation and divided or minority government. Cohabitation is the situation when the executive president and the prime minister come from opposing parties, and when the president’s party is not represented in the government.^{^[30]} The fear is that this will lead to intra-executive conflicts and government deadlock until such time as elections give a single party control over both the legislature and executive presidency. Elgie however shows that cohabitation mostly occurs in full democracies and all of the instances of cohabitation in full democracies survive without democracy collapsing.^{^[31]} Cohabitation is on the other hand rather rare in partial democracies. Elgie counts only three such instances Weimar Republic (1923-24; 1927), Sri Lanka (2001-2004)^{^[32]} and Niger (1995).^{^[33]} Out of these three, democracy collapsed only in Niger as a result of cohabitation, which is therefore cited as a classic example of the perils of cohabitation.^{^[34]} Meanwhile, no full democracy ever collapsed because of cohabitation and intra-executive conflicts.

Given the characterisation of cohabitation as a perilous outcome of semi-presidentialism it is important to consider factors that give rise to situations of cohabitation. First, it has been shown that cohabitation is more common in premier-presidential than in president-parliamentary systems.^{^[35]} Elgie and Iain McMenamin show that cohabitation arises mostly following elections and even more commonly, mid-term elections, when the majority in the parliament changes, forcing a cohabitation with the incumbent president and newly formed majority in the parliament.^{^[36]} Cohabitation is likely when there is a split of electoral preferences, either because of non-concurrent legislative and presidential elections, or vote splitting as a result of different electoral logics of parliamentary and presidential elections. In addition to showing that cohabitation on its own has no really empirically founded negative consequences, Elgie also shows that the factors that could give rise to cohabitation do not cause democratic breakdown.^{^[37]} Actors’ anticipation of forthcoming cohabitation does not push them toward unconstitutional means of resolving political conflicts and democracy does not collapse. Overall, cross-case as well as case study research shows that the alleged deadly consequences of cohabitation have been exaggerated.

Minority or divided governments have been brought up as another undesirable consequence of semi-presidentialism. Minority and divided governments emerge when neither the president’s party nor any other party, including those explicitly opposed to the president, can form a government with a sustainable majority in the legislature. The argument goes that these insecure majorities lead to shifting alliances and coalitions in the legislature, with recurring government deadlock and intra-executive conflicts. This in turn leads to the executive president’s frequent use of decree and emergency powers and potentially to more extreme unconstitutional measures. Elgie finds that five out of 17 partial democracies collapsed in the periods of divided or minority government.^{^[38]} Even those that did not collapse experienced increased political tensions, presidents had to frequently resort to their decree powers, and in two of them, Russia and Madagascar, the system moved towards granting more powers to the president. Similar to the case of cohabitation, however, divided and minority government led to democratic breakdown only in partial democracies, and never in full democracies. This might point to an apparent conjunctural relationship. Perils of semi-presidentialism come to the fore in absence of the wider ‘safety net’ that comes with fully democratic regimes, such as an independent judiciary and other independent institutions, strong civil liberties, an independent media and civil society, and so on.

Cabinet Formation and Control

The discussion in the previous sections shows that the allegedly most problematic effects of semi-presidentialism emerge because of the conflicts between presidents and parliaments, most commonly over the formation and control of the cabinet of ministers. Since semi-presidential systems exhibit high diversity in their institutional and behavioural characteristics it is evident that there is no single pattern of government formation and control. In this context it is important to elaborate on which actors – presidents, prime ministers, parliaments or parliamentary parties – have the upper hand in cabinet formation and control. Under what circumstances does this or that actor get advantage over the others? What are the mechanisms of influence that each of these actors possesses and applies?

Several complementing theoretical accounts exist on which actors compete for formation and control over cabinet in semi-presidential systems. For Octavio Amorim Neto and Kaare Strøm cabinet formation is the outcome of a ‘tug of war’ between the prime minister and the executive president.^{^[39]} For Oleh Protsyk on the other hand, cabinet formation and control is an outcome of a bilateral bargaining between the executive president and parliament which (depending on the precise constitutional design) have the powers to nominate, appoint, and/or dismiss the cabinet, the prime minister and individual cabinet members.^{^[40]} Schleiter and Edwards Morgan-Jones offer a more integrative account.^{^[41]} They look at the chain of power delegation in semi-presidential systems from the perspective of a principal-agent theory. Since semi-presidential systems assume a joint control over the government by parliamentary parties (through confidence-investiture procedures) and executive president (through at least one of the three: cabinet appointment, dismissal, legislative powers), the legislative parties and the executive president are the principals of the cabinet, which is their agent.

A long-standing debate in the semi-presidentialism research has been about the relative importance of formal constitutional powers in cabinet formation and control. Several authors have argued that formal constitutional powers have little importance on actual balance of powers in semi-presidential systems.^{^[42]} Contrary to these claims, the analyses of Protsyk, Amorim Neto and Strøm, and Schleiter and Morgan-Jones, of different samples of semi-presidential systems show that formal constitutional powers do play a crucial role in determining the formation and control over executive government.^{^[43]} However, these authors also argue that despite the importance of formal constitutional powers other factors can amend the constitutional power granted to the actors.

Exactly what institutional mechanisms matter in determining cabinet formation and control, once we take for granted the finding that formal constitutional powers are crucial for cabinet formation and control? For Amorim Neto and Strøm and Protsyk it is the power to nominate, confirm and dismiss cabinet members that give one or the other party bargaining advantages.^{^[44]} The power to nominate is a crucial agenda-setting mechanism while the unilateral dismissal power is a powerful tool that structures the entire negotiation process. In addition Protsyk shows that symmetric dismissal powers that give both the president and the parliament the right to dismiss the newly nominated prime minister and cabinet members provide a powerful institutional incentive for compromise and moderation since both the president and parliamentary majority know that their first preference candidates could easily be dismissed.^{^[45]} Schleiter and Morgan-Jones on the other hand argue that government formation and control emerge from both, the formal constitutional structure as well as the results of elections that grant the authority to form and control the government to the parliamentary parties and the president.^{^[46]}

As already mentioned, despite emphasising the role of formal powers these authors also argue that several intervening factors introduce considerable changes to the formal powers. Both Protsyk and Schleiter and Morgan-Jones show that actors’ de facto powers increase when government formation is triggered and takes place immediately after elections.^{^[47]} Recent elections give both parliaments and executive presidents incentives and legitimacy to be proactive in imposing their preferred government composition. These authors show that the ability of executive presidents to influence cabinet formation and exercise control increase with the increase in the fragmentation of the legislature. In fragmented legislatures the bargaining environment is complicated by the number of veto actors. In such circumstance the executive president takes up the role of broker among several parties and can bargain the president’s preferred cabinet composition irrespective of the formal constitutional powers. The Amorim Neto and Strøm study also shows that the electoral volatility of parties in parliament from one election to another increases the executive president’s powers.^{^[48]} On the other hand, these authors show that cabinet’s fragmentation or the size of the governing coalition decrease the executive president’s ability to influence government formation, since the multiple parties in the coalition all demand a share of ministerial positions for themselves, restricting the president’s opportunities to nominate his own or non-partisan members.

Beyond parliament’s and the governing coalition’s fragmentation, the nature of the party system is also a crucial aspect. Protsyk shows that presidents in premier-presidential systems acquire important leverage when the party system has a clientelistic nature and is characterised by frequent factional instability and floor-crossing which give the president more room in manoeuvring and finding a suitable candidate for the PM’s position that would be in her/his interest.^{^[49]} In addition, S.G. Kang shows that the president’s membership in a legislative party is an important factor in the executive-legislative power balance.^{^[50]} The president’s de facto powers considerably increase when she/he is the leader or a member of a strong legislative party.

The Nineteenth Amendment: What Has Changed?

The Nineteenth Amendment introduced considerable changes to the Sri Lankan constitution, particularly the balance of powers between the executive president, prime minister/cabinet and parliament. The president is directly elected by the people for a term of five years. The president is the head of state, the commander-in-chief of the armed forces, and also the head of the executive. The president is elected for a term of five years renewable only once, while individuals who have already served in the post for two terms are ineligible to run for the post again. The Nineteenth Amendment introduced a provision which states that the president is ‘responsible to parliament’ for the exercise of his/her duties and functions, although it is not entirely clear what this ‘responsibility’ entails.^{^[51]} The president can be impeached by parliament by a two-thirds majority.

The president appoints the prime minister from among the members of parliament at his/her own discretion. However, the prime ministerial nominee should be able to command the confidence of the parliament, essentially constraining the president’s discretion with the actual distribution of power in parliament. This is given an additional twist since the term of the parliament is essentially fixed. The president has no power to dissolve parliament unless in the last six months of the lifespan of a parliament and only if two-thirds of MPs vote in favour of the resolution. This means that the president cannot dissolve parliament and call new elections in the hope that new elections will yield a parliamentary majority commensurate with the president’s preferences.

The president’s role in the functioning of the cabinet remains considerable. The president is a member and the head of the cabinet of ministers and consults whenever he/she finds it necessary the prime minister on the determination of the number of ministries, ministers, and the assignment of subjects and functions to such ministries. On the advice of the prime minister the president appoints the ministers and deputy ministers. The cabinet is formally collectively responsible to the parliament, but also de facto to the president who can change its composition, assignments, and functions of the ministers. However, the president cannot dismiss the prime minister, and the entire cabinet. The president can dismiss cabinet ministers only on the advice of the prime minister. The cabinet in its whole can be dissolved only if the parliament passes a no confidence vote or rejects the statement of government policy. As such the president losses the highly powerful leverage of cabinet dismissal as the survival of the cabinet rests only with the parliament. It is here that the collective responsibility of the cabinet to the parliament is exercised. Consequently the command of the majority of the parliament by the prime minister is essential to the survival of the cabinet.

Discussion

Through the changes introduced by the Nineteenth Amendment Sri Lanka has moved from the president-parliamentary to premier–presidential category of semi-presidential systems. The most important change has been in the origin and survival of the cabinet. Before the Nineteenth Amendment the president and legislature had separate origin and survival. The cabinet’s origin was with the president, while its survival was with the executive president, through dissolution power, and the legislature, through confidence vote. However, even in the case of no confidence vote the president had the discretion to reappoint the cabinet as he/she wished. This placed both the actual origin and survival of the cabinet with the president. With the Nineteenth Amendment the origin of the cabinet lies with the president mediated through parliamentary majority. However, and most importantly, the prime minister’s and the cabinet’s collective survival solely rest with the parliament. In terms of principal agent theory cabinet and the prime minister are now the agents of the parliament and through the parliament of legislative parties.

Adopting and measuring the extent of presidential powers based on the Shugart and Carey scale, the current Sri Lanka executive president scores 10 points compared to the 16 points it had in the Shugart and Carey research from 1992.^{^[52]} Table 1 below shows the power of Sri Lanka’s president as measured on Shugart and Carey’s scale before and after Nineteenth Amendment. As compared to semi-presidential systems measured by Shugart and Carey, Sri Lankan president under Nineteenth Amendment has 10 points, which is below the average of 13 points of all semi-presidential regimes including both, president-parliamentary and premier-presidential systems as initially measured by Shugart and Carey. Adopting Steven Roper’s[53] modification of Shugart and Carey’s scale for premier-presidential regimes shows that from the point of view of formal constitutional powers the Sri Lankan president is the second strongest among premier-presidential systems as originally measured by Roper. Only the president of Iceland with 16 aggregate points has more formal powers than the president of Sri Lanka.

Table 1: Powers of the Sri Lankan President before and after Nineteenth Amendment

Compared to the pre-Nineteenth Amendment the president has not gained any additional legislative powers, but retained the crucial right to propose an issue to a referendum – potentially a powerful tool of agenda-setting and a check on the powers of the parliament. Importantly the president’s sweeping non-legislative powers were somewhat constrained. Prior to the Nineteenth Amendment the president had full power to form and dissolve government, as well as the right to dissolve the parliament. With the Nineteenth Amendment the president still retains the nomination of the prime minister, subject to the candidate commanding support of the majority of the legislature. The president also appoints members of cabinet, but only on the advice of the prime minister, and has the right to change the composition of the cabinet, the functions and assignments of the cabinet ministers. These changes though must not alter the continuity of the cabinet and the continuity of its responsibilities to the parliament. On the other hand the president lost the power to dissolve the cabinet of ministers. The president has to an extent retained the right to dissolve the parliament. However, this dissolution power is severely constrained in time. The president can only dissolve the parliament four and a half years after the first sitting of the parliament.

As already discussed an executive president’s actual powers can be considerably different from formal powers depending on a number of factors. Existing research has identified the nature of the party system, electoral volatility, the degree of parliament’s as well as governing coalition’s fragmentation, and the occurrence of minority government, as some of the most important such factors. In this context it is crucial to consider the impact of the electoral system. The extent of fragmentation of the legislature, and the governing coalition(s), the shape of the party system and electoral volatility are all to a great extent influenced by the electoral formula. Additionally, the design of electoral districts, in particular of district magnitude, as well as the overall cleavage structure of the society are all of important consideration in this regard. This goes back to a limited, but important stream of research that has argued of the crucial importance of studying interactive effects of institutions rather than their separate, net effect on any given phenomenon.^{^[54]}

The existing research by Schleiter and Morgan-Jones and Amorim Neto and Strøm shows that fragmented legislatures would increase the president’s role in government formation by giving him/her more space for manoeuvre and nomination of a prime minister closer to his/her preference.^{^[55]} In this context a more permissive electoral system such as proportional representation systems could be expected to fragment the legislature and provide more leverage for the executive president in cabinet formation. Given Sri Lanka’s ethnic diversity, drawing electoral districts along the settlement patterns of ethnic groups will enable majoritarian systems to provide for quite extensive representation of ethnic groups and achieve a degree of fragmentation of the legislature. Legislative fragmentation will likely mean that no single party would be able to command absolute majority. Parties would need to enter into governing coalitions. The larger these coalitions, the more room would the executive president have in the appointment of the prime minister, but also less control over the appointment of ministers and other cabinet members. Legislative fragmentation and inability to form a stable majority by fewer parties could also be expected to lead to situations of minority government, again paving the way for more extensive powers of the executive president.

However, it is important to consider not only the mechanical degree of fragmentation but also the role of the executive president in the party system. As Kang shows in his research given president’s nomination power the executive president’s role will highly increase whenever he/she heads or is a member of a parliamentary party.^{^[56]} Irrespective of the formal power of the president the post is likely to continue to occupy an important role for Sri Lankan political parties. In this sense it is unlikely that the position of the president would become apolitical and solely symbolic.

Subject to the changes of the electoral system, the party system can change considerably from the current mainly two-party structure. The party system could change if the new electoral system is very permissive, encouraging and rewarding possible fragmentation of the two major parties. The party system might also evolve from the traditional two-party system if minorities consolidate around one to two parties and actively engage in electoral politics so that the minority parties’ share of representation in the legislature approximate their share in the population. However, if we assume the party system does not change, then it is very likely that the post of the president will be occupied by one of the two powerful parties holding the parliamentary majority on their own or in coalition with other parties. This suggests that formal presidential powers aside, it is the presidential parties in the legislature that will be a crucial source of power for the presidential executive.

In case the party opposed to the president is holding a majority in the parliament the president’s power can be considerably restricted. In case a party opposed to the president is holding an inconclusive majority in the parliament there is likely to be a cohabitation or minority government. The peculiarity of these two situations in the current Sri Lankan system is that the term of the parliament is essentially fixed. There is no constitutional provision that would allow for dissolution of the parliament unless there is a strong consensus on dissolution within the legislative parties.^{^[57]} On the one hand this locks all parties to four and a half years of tense intra-executive and inter-party relations and unstable government. On the other hand the fixed parliamentary mandate is a powerful incentive for more consensual relations that can incentivise parties to compromise.

^{^[1]} M. Duverger, ‘A New Political System Model: Semi-Presidential Government’ (1980) European Journal of Political Research 8(2): p.166.

^{^[2]} For detailed criticism of Duverger’s original definition see R. Elgie, ‘The Politics of Semi-Presidentialism’ in (Ed.) (1999) Semi-Presidentialism in Europe (Oxford: Oxford University Press): pp. 4-12.

^{^[3]} Ibid: p.12.

^{^[4]} These authors also show that heterogeneity is also high among presumably ‘pure’ parliamentary and presidential systems. See e.g., J.A. Cheibub, Z. Elkins & T. Ginsburg, ‘Beyond Presidentialism and Parliamentarism’ (2014) British Journal of Political Science: pp.1-30.

^{^[5]} Because of this extreme diversity especially in the powers of the executive presidents, Alan Siaroff has expressed doubts whether semi-presidentialism is a distinct and coherent form of government: see A. Siaroff, ‘Comparative presidencies: The inadequacy of the presidential, semi-presidential and parliamentary distinction’ (2003) European Journal of Political Research 42(3): p.307.

^{^[6]} L.K. Metcalf, ‘Measuring Presidential Power’ (2000) Comparative Political Studies 33(5): pp.660-685; Siaroff (2003).

^{^[7]} M.S. Shugart & J. Carey (1992) Presidents and Assemblies: Constitutional Design and Electoral Dynamics (Cambridge: Cambridge University Press).

^{^[8]} M.S. Shugart, ‘Semi-Presidential Systems: Dual Executive And Mixed Authority Patterns’ (2005) French Politics 3(3): pp.323–351.

^{^[9]} Shugart & Samuels (2010).

^{^[10]} P. Schleiter & E. Morgan-Jones, ‘Party government in Europe? Parliamentary and semi-presidential democracies compared’ (2009a) European Journal of Political Research 48:5, 665–693; P. Schleiter & E. Morgan-Jones, ‘Review Article: Citizens, Presidents and Assemblies: The Study of Semi Presidentialism beyond Duverger and Linz’ (2009b) British Journal of Political Science 39:4, 871; P. Schleiter & E. Morgan-Jones, ‘Who’s in Charge? Presidents, Assemblies, and the Political Control of Semipresidential Cabinets’ (2010) Comparative Political Studies 43(11): pp.1415-1441.

^{^[11]} Shugart (1992).

^{^[12]} Ibid: p.325.

^{^[13]} Schleiter & Morgan-Jones (2009b).

^{^[14]} Shugart (2005): p.325.

^{^[15]} Ibid: p.327.

^{^[16]} Shugart & Carey (1992).

^{^[17]} J. Linz, ‘Presidential Versus Parliamentary Democracy: Does It Make a Difference?’ in J. Linz & A. Valenzuela (Eds.) (1994) The Failure of Presidential Democracy (Johns Hopkins University Press); J. Linz, ‘Introduction’ in T. Ray (Ed.) (1997) Postcommunist Presidents (Cambridge University Press).

^{^[18]} J. Linz & A. Stepan (1996) Problems of Democratic Transition and Consolidation (Johns Hopkins University Press): pp.278–279.

^{^[19]} C. Skach (2005) Borrowing Constitutional Designs: Constitutional Law in Weimar Germany and the French Fifth Republic (Princeton University Press).

^{^[20]} A. Lijphart, ‘Constitutional Design for Divided Societies’ (2004) Journal of Democracy 15(2): pp.96-109, also available at: http://muse.jhu.edu/content/crossref/journals/journal_of_democracy/v015/15.2lijphart.html (last accessed 18^th March 2016).

^{^[21]} G. Sartori (1997) Comparative Constitutional Engineering: An Inquiry Into Structures, Incentives, and Outcomes (New York University Press).

^{^[22]} G. Pasquino, ‘Semi-Presidentialism: A Political Model at Work’ (1997) European Journal of Political Research 31: pp.128-137.

^{^[23]} F. Frison-Roche, ‘Semi-Presidentialism in Post-Communist Context’ in R. Elgie & S. Moestrup (Eds.) (2007) Semi-Presidentialism Outside Europe (Abingdon: Routledge): pp. 56-77.

^{^[24]} S. Moestrup (2007a) ‘Semi-presidentialism in Niger: Gridlock and Democratic Breakdown – Learning from Past Mistakes’ and S. Moestrup (2007b) ‘Semi-presidentialism in Young Democracies: Help or Hindrance?’ in R. Elgie & S. Moestrup (Eds.) (2007) Semi-Presidentialism Outside Europe (Abingdon: Routledge): pp. 105-120 and pp. 30-55; J.A. Cheibub & S. Chernykh ‘Are Semi-Presidential Constitutions Bad for Democratic Performance?’ (2009) Constitutional Political Economy 20(3-4): pp.202-229.

^{^[25]} T. Hiroi & S. Omori, ‘Perils of Parliamentarism? Political Systems and the Stability of Democracy Revisited’ (2009) Democratization 16(3): pp.485-507.

^{^[26]} M. Svolik, ‘Authoritarian Reversals and Democratic Consolidation’ (2008) American Political Science Review 102(2): pp.153-168; K. Maeda, ‘Two Modes of Democratic Breakdown: A Competing Risks Analysis of Democratic Durability’ (2010) The Journal of Politics 72(4): pp.1129-1143.

^{^[27]} R. Elgie & P. Schleiter, ‘Variation in the Durability of Semi- Presidential Democracies’ in R. Elgie, S. Moestrup & Y.S. Wu (Eds.) (2011) Semi-Presidentialism and Democracy (Oxford: Oxford University Press): pp. 42-61; R. Elgie (2011) Semi-Presidentialism Sub-Types and Democratic Performance (Oxford: Oxford University Press): pp.43-49.

^{^[28]} Elgie (2011): pp.69–94.

^{^[29]} Moestrup (2007b).

^{^[30]} R. Elgie & I. McMenamin, ‘Explaining the onset of cohabitation under semi-presidentialism’ (2011) Political Studies 59(3): pp.618-619.

^{^[31]} R. Elgie, ‘The Perils of Semi-Presidentialism. Are They Exaggerated?’ (2008) Democratization 15(1): pp.49-66.

^{^[32]} According to M.S. Shugart & D.J. Samuels (2010) Presidents, Parties, and Prime Ministers: How the Separation of Powers Affects Party Organiztaion and Behavior (Cambridge: Cambridge University Press): pp.45-46, Sri Lanka 2001-2004 is the only case of cohabitation that existed in a president-parliamentary system. All other experiences of cohabitation come from premier-presidential systems.

^{^[33]} Elgie (2008): pp. 49-66.

^{^[34]} L. Kirschke, ‘Semipresidentialism and the Perils of Power-Sharing in Neopatrimonial States’ (2007) Comparative Political Studies 40(11): pp.1372-1394; Moestrup (2007a).

^{^[35]} Elgie (2008); R. Elgie, ‘Semi-presidentialism, Cohabitation and the Collapse of Electoral Democracies, 1990-2008’ (2010) Government and Opposition 45(1): pp.29-49; Elgie & McMenamin (2011).

^{^[36]} Ibid.

^{^[37]} Elgie (2010).

^{^[38]} Elgie (2008).

^{^[39]} O. Amorim Neto & K. Strøm, ‘Breaking the Parliamentary Chain of Delegation: Presidents and Non-partisan Cabinet Members in European Democracies’ (2006) British Journal of Political Science 36(4): p.619.

^{^[40]} O. Protsyk, ‘Prime Ministers’ Identity in Semi-Presidential Regimes’ (2005) European Journal of Political Research 44(5): pp.721-748.

^{^[41]} Schleiter & Morgan-Jones (2010): pp. 1415–1441.

^{^[42]} J.A. Cheibub, ‘Making Presidential and Semi-Presidential Constitutions Work’ (2008) Texas Law Review 87: pp.1375, 1398-1401; Duverger (1980): pp.179-180; Linz & Stepan (1996): p.278; Siaroff (2003): p.303.

^{^[43]} Protsyk (2005); Amorim Neto & Strøm (2006); Schleiter & Morgan-Jones (2009a); Schleiter & Morgan-Jones (2009b); Schleiter & Morgan-Jones (2010).

^{^[44]} AmorimNeto and Strøm(2006); Protsyk (2005).

^{^[45]} Protsyk (2005).

^{^[46]} Schleiter & Morgan-Jones (2010).

^{^[47]} Protsyk (2005); Schleiter & Morgan-Jones (2010).

^{^[48]} Amorim Neto & Strøm(2006).

^{^[49]} Protsyk (2005).

^{^[50]} S.G. Kang, ‘The Influence of Presidential Heads of State on Government Formation in European Democracies: Empirical Evidence’ (2009) European Journal of Political Research 48(4): pp.543-572.

^{^[51]} When outlining the legislature-cabinet relationship the amendment states that the cabinet is “responsible” and “answerable” to the Parliament. The word answerable is omitted form the description of legislature-president coordination.

^{^[52]} For a detailed discussion of the scale see in Shugart and Carey (1992): Ch.8 at pp.148-154.

[53] S. D. Roper, ‘Are All Semi-presidential Regimes the Same? A Comparison of Premier-Presidential Regimes’ (2002) Comparative Politics 34(2): pp.253-272

^{^[54]} T.D. Sisk (1996) Power Sharing and International Mediation in Ethnic Conflicts (United States Institute of Peace); K. Belmont, S. Mainwaring & A. Reynolds, ‘Institutional Design, Conflict Management, and Democracy’ in A. Reynolds (Ed.) (2002) The Architecture of Democracy : Constitutional Design, Conflict Management, and Democracy (Oxford: Oxford University Press).

^{^[55]} Schleiter & Morgan-Jones (2009); Schleiter & Morgan-Jones (2010); Amorim Neto & Strøm (2006).

^{^[56]} Kang (2009).

^{^[57]} The Nineteenth Amendment requires that the resolution on dissolution of the legislature must have the support of two-thirds of MPs including those not present.

Frontispiece

Awantha Artigala on 19A copy

Reproduced with the kind permission of The Daily Mirror and Awantha Artigala.

Foreword

In its two decades in existence, the Centre for Policy Alternatives (CPA) has maintained a robust commitment to constitutional reform as an integral component of democratic governance and as a primary instrument of conflict transformation. This edited work on the Nineteenth Amendment marks CPA’s continuing commitment in this regard and now, at a time when constitutional reform is at the forefront of public affairs. CPA has always reiterated the supremacy of the constitution, the critical importance of checks and balances on the exercise of executive power, the indispensability of meaningful power-sharing for governance, and for an architecture of authority and power that accommodates the aspirations of all the peoples of Sri Lanka and addresses their grievances. This publication, we hope and believe, will highlight the need for further constitutional reform and in shedding light on its uneasy evolution so far, inform and improve the renewed commitment to it in terms of both process and content.

The Nineteenth Amendment did not meet the expectations in full of those who voted for a change of regime in January 2015 and indeed, those amongst them who for decades had argued for a liberal democratic constitutional framework and structure of power for Sri Lanka. In particular, it was a product of the confusion that arose soon after that historic election, as to whether the commitment was to the abolition of the executive presidency – the non-retention of that office in its then current form being the centrepiece of the opposition platform for governance – or as to whether it was to a diminution of the powers of that office. The reform commitment was invariably conditioned by ensuing political dynamics, and the debate over whether the desirable was attainable was obscured by a consensus amounting to a seeming fait accompli, that if the sincerity of the new government’s commitment to reform was to be salvaged, the attainable had to win the day to fight another day, perhaps.

Dissimilar for sure, to the process by which the notorious Eighteenth Amendment was passed by the previous regime, the process by which the Nineteenth Amendment came to be, nevertheless, left room for legitimate criticism from the perspective of governance as a process. These are concerns that should be borne in mind as we proceed with constitutional reform; the best need not be the enemy of the good, and the good not defined as such on an uncritical equation with the possible.

None of the above is meant in any way to detract from the significance of the amendment. Significant it is as it stands and stands it does as a democratising amendment. The pruning of the powers of the presidency it effected, is unprecedented in that it constitutes the first instance of a constitutional amendment in our post-colonial history with such an objective and one that was passed. The concerns, subsequently allayed, that it would create an executive prime minister in place of an executive president, highlighted the pivotal role of the legislature in checking and balancing the executive – greater attention to the separation and balance of powers being of central importance for democratic governance and constitutional reform into the future to secure it. Likewise, the curbing of the powers of the president over the dissolution of the legislature, term limit for the incumbent, and immunity.

In similar vein, the revival of the Constitutional Council as a nominating and recommendatory body for key positions of state and for independent oversight commissions directly involved in the protection and promotion of governance. The partisan politicisation of state institutions has been a cancer on the body politic and the lack of transparency and accountability, the culture of impunity and nepotism, all hallmarks of the state capture by the previous regime, which led to its historic downfall in January 2015. The Constitutional Council that has been provided for under the Nineteenth Amendment fell prey to opposition suspicions of civil society and as a consequence, unlike what was originally proposed, retains a majority of politicians in its composition. Like the provisions on the presidency, those on the Constitutional Council too can be reviewed when the constitutional reform programme begins in earnest in the coming months.

The Nineteenth Amendment illustrates the dimension of political compromise inevitably attached to constitutional reform. It is hoped that as constitutional reform is extended, as it must, the Nineteenth Amendment will be improved upon in process and substance, and the promise of governance so widely subscribed to in January 2015 redeemed in fullest measure. This publication is yet another contribution from CPA to debate, deliberation, and design in this regard.

On behalf of CPA, I wish to thank Dr Welikala and all those who assisted him in underpinning the organisation’s commitment and contribution in this field.

Dr. Paikiasothy Saravanamuttu

Executive Director

Chapter 3 | Cosmopolitanism as a Framework for Understanding Recent Political Change in Sri Lanka

Laksiri Fernando

Introduction

In recent debates on Sri Lanka’s future and required political change, academics and political analysts have extensively discussed constitutional and governance issues,[1] but not so much matters related to ‘political culture’ or ‘electoral behaviour.’ There has been some understanding for some time that the key ideology that influences the political behaviour of political leaders as well as the general public has been ‘nationalism,’ of various varieties and different types,[2] but no particular studies have been conducted to ascertain their influence on electoral behaviour in recent times.[3] Much of the prognosis on the adversarial effects of nationalism/s in the country was related to ‘linguistic nationalism’,[4] ‘ethno-nationalism’[5] or ‘separatist nationalism.’[6] On the normative side, however, except for some efforts to promote ‘civic nationalism’ in contrast to ‘ethno-nationalism’,[7] the prospects or possibilities for the emergence of more sober or grounded politico-psychological changes in the form of ‘cosmopolitanism’ has never been contemplated before.

The dramatic political changes that swept the country at the presidential elections in January, and parliamentary elections in August 2015, to re-establish democracy and good governance, however demonstrate a certain maturity of the electorate that could be interpreted as a small but a definitive move towards cosmopolitanism.[8] This was predominantly within a context of a strong parochial discourse and xenophobic movement on nationalism, called jathika chinthanaya (nationalist thought), which attempted to preserve not only the status quo after the end of the war on terrorism, but also to move beyond on a further ethno-nationalist direction.[9] After the aforesaid electoral breakthroughs in January and August, the newly formed ‘national government’ has demonstrated a programme of action with certain traits of cosmopolitanism particularly in the areas of foreign affairs and economic policy in recognition of certain global realities.

The purpose of the present chapter therefore is twofold. Considering that cosmopolitanism is a new concept in the Sri Lankan context (although with some past roots), the first part of the chapter would be devoted to elucidating the main facets of that concept relevant to Sri Lankan debates and developments. The second part thereafter is devoted to ascertain the emergence of cosmopolitan trends and tendencies, particularly at the two elections with preliminary empirical evidence based on voting patterns and electoral demography.

The Concept and Philosophy of Cosmopolitanism

Historically speaking, the concept of cosmopolitanism does not belong to one writer or school of thought. It has been used widely and diffusedly throughout centuries and only in recent times has a certain crystallisation of the concept emerged both as recognition of ‘globalisation’ and also as a rational critique of it.[10] It is undoubtedly a concept counter to ‘narrow nationalism’ in the internal dimension, which also deviates from crude globalisation on the external frontier.[11] The term, which might still not be very popular or attractive in everyday political parlance, nevertheless is useful as a model of applied theory in visualising or analysing certain political trends and recent changes.

Two Thinkers

It is customary to contrast two thinkers, one ancient and the other modern, Diogenes (404-323 BCE) and Emmanuel Kant (1724-1804), to elucidate the evolution of the concept from an individual notion to a much broader social conception. However, it should be noted that the ancient Stoics advocated a similar idea to Kant during the Greek and Roman periods, although this became somewhat tainted with Cicero’s advocacy of the ‘Empire.’ The Stoic advocacy of the notion was as a ‘cosmic community’, which transcends one’s national boundary especially in terms of justice, peace, and equality. This is the same meaning today.

Diogenes of Sinope, however, is considered the originator of the concept, or the term he used: Kosmopolites (citizens of the world). He was famous for carrying his daytime lamp as if to find the ‘honest man’ in the world. Since then cosmopolitanism has been part of moral philosophy. This Cynic philosopher, Diogenes, used to travel almost everywhere possible in the Mediterranean in his ragged clothes and when he was asked where he came from, he used to answer I am from nowhere, ‘I am a citizen of the world.’ His cosmopolitanism was thus eccentric, rootless, or represented extreme individualism, and might not be good for anyone today. This has been one criticism against cosmopolitanism even thereafter. Jean-Jacque Rousseau once said cosmopolitans argue that ‘they love everyone, in order to have the right to love no one.’[12]

The enlightened modern philosopher, Emmanuel Kant, in the late eighteenth century was different. He turned cosmopolitanism on its feet. Therefore, the modern political conception of cosmopolitanism traces its origins to Kant and not to Diogenes. Kant’s conception of a cosmopolitan is not as the rootless traveller who picks cultural titbits from different countries. It is an enlightened attitude and a ‘world outlook’ towards plurality, tolerance, multiculturalism, and co-existence. As Pauline Kleingeld explained:

“Instead, on Kant’s view, cosmopolitanism is an attitude taken up in action: an attitude of recognition, respect, openness, interest, beneficence and concern towards other human individuals, cultures and peoples as members of one global community.”[13]

Kant was not a person who had travelled much or travelled at all. He lived in his hometown Konigsberg, Germany, most of the time. With its seaport, university, government offices, and international trade, he believed that he could easily connect with different languages, religions, and cultures, broaden his knowledge and be part of a ‘common humanity.’ This does not however deny the merit of travelling for the benefit of experience, knowledge or world outlook. The point is that Kant’s cosmopolitanism was not rootles or unconcern for one’s own culture or upbringing. Even Kant believed that cosmopolitans can or ought to be ‘good patriots.’

The Kantian View

Kant developed cosmopolitanism beyond a mere moral philosophy. In that effort the concept came closer the modern political realities or political realism. It should be noted that he was not the only thinker who advocated cosmopolitanism during his time. Three facets of cosmopolitanism that Kant talked about were political, economic, and cultural. Moreover, he was the first person to develop some clear notions of international institutional arrangements within which cosmopolitanism could exist and thrive. The relevance of these ideas loom large today in the context of international obligations of countries and individuals in respect of universal human rights and international justice. Recent debates and changes in Sri Lanka could also be viewed in this light. According to this view, the fate of individuals particularly in the realm of human rights in a country is beyond the formal jurisdiction of that country and is a concern of the global community at large. The concept of ‘responsibility to protect’ (R2P), recognised by the UN, emerges from that premise.[14]

As in the case of any other philosophy, there are extremes even in the case of cosmopolitanism. The value of the Kantian conceptualisation is the avoidance of these extremes. Taking the Cynic notion of cosmopolitanism, detractors always argued about the seeming contradiction between the notion of ‘world citizen’ and the ‘citizen of a country.’ According to the Kantian view, these are two dimensions of the same citizenship, emerging from common humanity, the correlation of which would be positive given the way both national actors and the international players interact with each other. According to Kant, the ideal of correlation that could happen is not through a ‘world state’ but a voluntary federation or a league of nations. In these views, he undoubtedly presaged the formation of the League of Nations (1920) and later the United Nations (1945). Kant was a defender of the plurality of states and not the other way round.

Although there were traces of a racial theory in Kant’s early writings,[15] these racial hierarchical views became modified or abandoned later in the 1790s, and he was a firm advocate of cultural plurality in the world, colonial parts of the globe included. Kant held a theory of rights and in the same vein he defended a right to cosmopolitanism. It incorporated a ‘right to hospitality’ applied to migrants, refugees, and asylum seekers, or similar groups who need assistance from other states or the international community then or today.

Kant is one who extended cosmopolitanism to embrace international trade. It is often viewed as ‘free-market cosmopolitanism’. However, even during his time, free-market cosmopolitanism fundamentally differed from free-market liberalism or today’s neo-liberalism. He brought the notion of ‘economic justice’ to the notion of free-market cosmopolitanism. It was his view that international trade promotes peace and perpetual peace. He was not advocating unbridled free trade. As Pauline Kleingeld showed,

“… Kant’s legal and political theory (especially his republicanism, his theory of property, and his defence of state-funded poverty relief) implies that trade should first of all be just, and that it can be ‘free’ trade only within the bounds of justice.”[16]

A brief look at Kant’s Perpetual Peace (1795) might be the best way to sum up his views on cosmopolitanism.[17] Although his focus was mainly on world peace, his propositions are equally valid for peace within a country like Sri Lanka. Kant was not talking about any kind of peace or temporary peace but perpetual peace. To him, no peace is everlasting unless underlying causes of war or violence are addressed. Given the human inclination for aggression and violence, he opined, perpetual peace also require strict rules and laws based on justice. In a world context, as he said, unless laws are based on addressing the issues of global citizens and their rights, no peace or stability could be achieved in a perpetual manner. World law (or cosmopolitan law) should not merely be the laws between states, but the laws of or for the global citizens. In this respect, he advocated a new vision for international law. The same goes for the laws within states, whether fundamental (constitutional) law or ordinary law. They should address the needs and aspirations of the citizens. This applies in assessing the constitutional reforms in Sri Lanka including the Nineteenth Amendment and future constitution-making.

Cosmopolitanism Studies

It is customary to consider the period since the French Revolution (1789) as the age of nationalism.[18] Kant was an exception or aberration to this period. Within this wave of strong nationalism, notions of cosmopolitanism became submerged if not completely disappeared at least until the end of the Second World War. Marxism was another philosophy which tried to counter nationalism through internationalism, but its many advocates have succumbed to nationalism through various pretexts.[19] It is only recently that academic Marxism has been in a position to influence the revival of contemporary cosmopolitanism. There were sincere attempts to prophecy the demise of nationalism after the end of the war by academics like Elie Kedourie,[20] but the attempt became submerged thereafter within the euphoria about nationalism, and much worse, ethnonationalism. But ethnonationalism was not even nationalism proper but its decomposition. It was Kedourie’s view that ‘for an academic to offer sympathy for nationalism is virtually impertinent.’ His failure or weakness perhaps was in not looking for alternatives. It is in this context that the value of increased academic interest in cosmopolitanism studies could be appreciated. These studies are not new but old as we have outlined. Therefore it is also independent from recent global studies or globalisation studies. As a normative philosophy, the value of cosmopolitan studies has enlarged nevertheless because of globalisation. As Gerard Delanty has argued, “The world may be becoming more and more globally linked by powerful global forces, but this does not make the world more cosmopolitan.”[21]Therefore, in the broadest meaning of the term, cosmopolitanism is about broadening the moral, social, cultural and political horizons of people, leaders, and organisations beyond their close confines. It also means an attitude of openness as opposed to closure within and outside a country. It is primarily about going beyond the ‘iron cage’ of nationalism, whether the country is socialist or capitalist.

There are two major reasons why the concept and philosophy of cosmopolitanism has become crucially important since the last decade of the twentieth century. First is globalisation, which has created enormous space for cosmopolitanism in whatever variety you speak of the concept. Technological integration of the world has become the infrastructure through which cosmopolitanism is and can be promoted. If cosmopolitanism is not a natural outcome of globalisation, it has become an imperative because of the threats associated with globalisation. Globalisation has even produced ideas rejecting cosmopolitanism or calling for a new form of cosmopolitanism. The call is for global citizens without states.[22] However, the main theorists of cosmopolitanism and more realist academics have held the fort. There is no rejection of the state in contemporary cosmopolitanism. Jurgen Habermas has come with ‘constitutional patriotism’ and Ulrich Beck even with ‘cosmopolitan nationalism.’ Delanty’s conception is ‘critical cosmopolitanism.’[23]

Second is the collapse of communism. Developments in this sphere have been bizarre and contradictory. Considering the nature of socialist and communist ideologies, one could have assumed that these countries were favourable to cosmopolitanism. Unfortunately, that was not the case. In the case of some Eastern European countries, some form of cosmopolitanism was applied, although selectively.[24] However, this was not the case in the Soviet Union, and even now, the countries of the former union have not been able to overcome the situation completely. Particularly during the Stalinist period and even thereafter, those who professed any form of free cosmopolitanism, except a limited form of regime sanctioned ‘international solidarity,’ were considered traitors or ‘enemies of communism.’ This is still the case in North Korea or even the much economically opened up China. Only Cuba shows clear signs of deviating from such a closed situation. Although the collapse of communism opened up space and opportunities for cosmopolitanism, the actual developments have still not taken place in many countries.

There are many other reasons why cosmopolitanism has become important today. Apart from its utility in countering narrow nationalism, cosmopolitanism has become important as a theoretical framework in understanding many social changes in our midst in Sri Lanka or overseas. As this is being written, thousands and thousands of refugees are fleeing the Syrian crisis and are arriving in Europe, crossing difficult borders seeking ‘cosmopolitan hospitality.’ Tracing social changes favourable to cosmopolitanism since the early 1990s, Delanty maintained that they are linked up with the “expansion of democracy and the extension of the space for the political.”[25] Some of the other developments that he traced were the end of Apartheid, Tiananmen Square upheavals, and democracy movements in the Arab world. There are many others with him who have also acknowledged the importance of the two hundredth anniversary of Kant’s 1795 work Perpetual Peace in 1995 as an important landmark in the revival of cosmopolitanism. Delanty also noted the following.

“The 1990s were marked not only by such major political events of global significance, but in addition by the arrival of the internet and an epochal revolution in communication technologies which led not only to the transformation of everyday life and politics but capitalism too. The sense of epochal change was enhanced with a sense of a new millennium.”[26]

It is on the basis of the above theoretical and conceptual premises, although not comprehensive by any means, that an attempt would be made in the next part of this chapter to understand the recent political changes in Sri Lanka in terms of cosmopolitanism and/or moving away from narrow nationalism.

Understanding the Challenges of Change

The interpretation of political change at the two recent elections, in January and August 2015, is the main focus of this second part of the chapter from the point of view of cosmopolitanism that I have outlined above. The dramatic character of this change was signified by the ousting of the leader, the former President Mahinda Rajapaksa, who in fact won the war against ‘separatism and terrorism’ just six years back in 2009,[27] and therefore the change could safely be interpreted as a – small nevertheless significant – move away from strong ethnonationalism towards a desirable form of cosmopolitanism. The reason or the justification to interpret the election results as a move away from strong ethnonationalism is the fact that the former President Rajapaksa contested both the presidential elections in January and the parliamentary elections in August primarily on the basis of an ethnonationalist election platform.

As far as I am aware, so far, there are no empirical studies conducted on the correlation between the emergence of cosmopolitan trends and electoral or regime change in countries where previously politics were dominated by parochial regimes and narrow nationalism. However, recently Miyase Christensen and André Jansson noted, “Iranian national elections of 2009, the Occupy Movement and the Arab Spring, taken together, have opened up a cosmopolitan space of global debates through popular communication networks.”[28] Their focus in discussing the cosmopolitan trends is in relation to the media. It is on the same vein that Lilie Chouliaraki discussed two case studies, the Haiti earthquake and the Egyptian uprising.[29] Of course the role of the new media or more particularly social media was conspicuous in electoral change, generating cosmopolitan orientations among the voters in Sri Lanka.[30] However, the present interpretation goes beyond this and analyses some important glimpses of voter behaviour and changing electoral demography in Sri Lanka in analysing electoral change and the emergence of cosmopolitan trends.

In addition to the electoral change, accompanied by majority-minority alliances, civil society activities and movements of professional groups, there have emerged certain notions, propositions, and policies that could be associated with some form cosmopolitanism. A major issue at the presidential elections in January for example was ‘good governance’ or ‘compassionate government’ (maithri palanayak). This was contrasted to the then prevailing rule, which was criticised as authoritarian, corrupt, and nepotistic. The abolition or a fundamental modification of the executive presidential system was promised and it was put into practice, whatever the weaknesses or deficiencies, through the Nineteenth Amendment to the Constitution under the new minority government in April 2015. A most important aspect of the Nineteenth Amendment was the reinstatement of the Constitutional Council and the independent commissions which could give a cosmopolitan orientation to the state administration and structures, drawing the best talent from all communities in society.

At the parliamentary elections in August, the leading coalition, the United National Front for Good Governance (UNFGG), declared a policy of ‘Social Market Economy’ for the first time in the country. If this is implemented properly, it would be a major boost to cosmopolitanism. Most importantly, the foreign policy orientation has shifted significantly from an anti-Western and anti-UN posture to cooperation and constructive collaboration. This has become very clear from the current government’s position at the UN Human Rights Council (2015) in contrast to the previous postures of the previous government. There are many other policy shifts that could be considered conducive to future cosmopolitanism, but all cannot be discussed within the scope of this section.

Cosmopolitan Electoral Change

The January presidential elections might prove to be a watershed in Sri Lankan political history in recent times. It is called a ‘silent revolution’ or a ‘democratic revolution.’ It was ‘silent’ because it eventuated through the ballot box unlike the Arab Spring. It was a ‘democratic revolution’ because it managed to oust the incumbent President who was authoritarian and at least undemocratic. He was contesting for an unprecedented third term, after changing the constitution to that effect through dubious means. If he managed to win the elections, the form of Sri Lankan politics would have taken a disastrous path.

At the presidential elections in January when he was defeated, Rajapaksa received only 47.6 per cent of the national vote, whereas his vote at the previous presidential elections in 2010 was 57.9 per cent. This was a 10 per cent swing in percentage terms within less than five years. In contrast, the common opposition candidate and the present President, Maithripala Sirisena, received 51.3 per cent for a comfortable victory whereas the previous opposition candidate in 2010, Sarath Fonseka, received only 40.1 per cent of the national vote. The increase was approximately 11.2 per cent.

More significant was the swing of votes at the parliamentary elections in August from the presidential elections in January. At the parliamentary elections, Rajapaksa contested again as a kind of unofficial prime ministerial candidate. However, his party, the United Peoples Freedom Front (UPFA), with considerable sections now opposing his politics, received only 42.3 per cent of the votes. This was a decrease of 5.3 per cent within seven months. The pre-January 2015 opposition and the interim government (UNFGG) between January and August 2015 received 45.7 per cent. This was also a decrease of 5.7 per cent, as two main constitutive parties of the common opposition in the presidential election, the Tamil National Alliance (TNA) (4.6 per cent) and the Janatha Vimukthi Peramuna (JVP) (4.8 per cent), as well as other smaller parties, contested the parliamentary elections separately. However, when taken together, it was an improvement of 3.8 per cent within seven months.

It is on record that Mahinda Rajapaksa attributed his defeat at the presidential elections to the Tamil vote and was hopeful of winning the parliamentary elections on the basis of the Sinhalese vote in the South. That was the case if only judged by the attendance at his public rallies. But that did not happen. As Nirupama Subramanian reported in The Indian Express (19^th August 2015), after the last campaign meeting, Rajapaksa had predicted the following:

“In almost every district in southern Sri Lanka, I won the presidential election. Sirisena won only because he got the minority votes from Tamils in the North. But this is not a presidential election. This is different. We will win all those districts in this election again and get a majority.”

It is true that the Tamil vote particularly in the North and the East was decisive at the last presidential elections. They overwhelmingly voted for the moderate common candidate Maithripala Sirisena. It is interesting to note the voting behaviour of those Tamil voters as shown in Table 1 in the last three presidential elections: 2005, 2010 and 2015. The table gives percentages of votes in five Northern and Eastern districts for the seemingly moderate Sinhala candidates, Ranil Wickremesinghe, Sarath Fonseka, and Maithripala Sirisena respectively at the three elections. In all these elections, Rajapaksa contested. The candidates are denoted by their initials as MR (Rajapaksa), RW (Wickremesinghe), SF (Fonseka), and MS (Sirisena).

Table 1: Voter Behaviour at Presidential Elections in North and East (Districts)

Screen Shot 2016-03-24 at 12.07.01 PM

Source: Department of Elections, Sri Lanka

As the above table shows those voters have preferred a moderate candidate (WR, SF or MS) at all three elections. That is what the percentages show for RW (2005), SF (2010) and MS (2015). At the last elections, MS won 74.42, 78.47, and 81.62 per cent of vote in the three districts of Jaffna, Vanni, and Batticaloa respectively. Even MR could not win such a percentage in his home turf, Hambantota in the South, even at the 2010 elections, which was 67.21 per cent in 2010 and 63.02 per cent at the last elections. The most important factor is the voter turnouts at these elections, in respect of voting for the moderate candidates.

At 2005 elections, there was extreme polarisation between the two communities or the North and the South. There was a pronounced boycott in the North (particularly in Jaffna and Vanni) engineered by the Liberation Tigers of Tamil Eelam (LTTE). The overwhelming demand at that time was a ‘separate state’ and not ethnic accommodation. The voter turnout was extremely low: mere 1.21 per cent in Jaffna and 34.30 per cent in Vanni. It is true that the voters were prevented by coercion. However, even at the 2010 elections, the voter turnouts were 25.66 and 40.33 per cent in the respective two districts. What this voter behaviour shows is moderation, and an increasing ‘cosmopolitan’ disposition moving away from the extremism that was evident in 2005. Judging by these election results, there has been a clear desire and willingness on the part of the Northern Tamils in the country for ethnic accommodation at the last elections, both presidential and parliamentary, which have brought political change to the country.

Other Factors in Cosmopolitanism

The electoral behaviour of the other minorities, particularly the Muslims and the Hill Country Tamils, has been different. Judging by the positions of the Sri Lanka Muslim Congress (SLMC) and the Ceylon Workers Congress (CWC), two main parties of the two communities respectively, what could be seen until lately is the willingness for political accommodation with the Sinhalese majority or the ruling party UPFA. Although both parties supported the moderate candidate, Wickremesinghe, at the 2005 presidential elections, both parties were willing to work with Rajapaksa after his victory in 2005, even at the risk of losing rank and file support. This was one reason for various splits and splinters from both parties. However, the situation was unviable particularly for the SLMC and the Muslim community by the time of the 2015 elections. There had been major attacks on religious places of the Muslim community since 2013. Similarly, there were attacks on evangelical Christian places of congregation during the same period. Therefore, apart from the Tamils concentrated in the Northern and some parts of the Eastern Province, the other dispersed sections of the Tamils (originally Northern or Hill country), the Muslims, and even the Christians were catalysts in bringing about electoral change both at the presidential and parliamentary elections.

There are other researchers who have employed regression analysis to examine voter behaviour between 2010 and 2015 presidential elections[31]. They have examined factors that contributed to the dramatic change in the ‘Mahinda Rajapaksa Margin’ (MRM) between the two elections and found that inter-district differences in the ‘share of all minorities’ played a key role, other than what we have discussed in Table 1 for the Northern and the Eastern districts. They have shown that the ‘share of all ethnic minorities’ combined with the ‘share of urban population’ in an electoral district/province have affected the MRM to drop.[32] Two other relevant variables, which the authors could have included in this regression analysis, are the ‘religious minorities’ (i.e. Christians) and the ‘share of youth’ in the electoral demography.

By the general elections in August, however, it became clear that even where the ‘share of all minorities’ has been absent or low, the MRM has dropped (i.e. Polonnaruwa or even Moneragala). This may be due to the ‘youth element’ or leadership factors. This is also where the cosmopolitan effect has emerged in the case of the Sinhala majority districts. It has been my conviction that urbanisation and modern youth play a major role in cosmopolitanism in any country and particularly in Sri Lanka. This is without a distinction as to ethnicity or religion. They are the people who are largely influenced by the ‘new news media’ discussed in Chouliaraki and Blaagaard (2014).[33] They are equipped with the ‘social media’ devices that Nalaka Gunawardene talked about in Sri Lanka this year.[34] Between 2010 and 2015, there has been nearly a million newly registered voters, all youth. The percentage of population and thus probably the percentage of voters between 18 years and 25 is nearly 15 per cent with a decisive say in an election. They may remain dormant without leadership particularly in rural areas. But when they are given leadership or opportunity they become activated. That is what was demonstrated in the August general elections. Table 2 shows the voter shift between the 2010 and 2015 parliamentary elections in respect of the two main contending parties/coalitions on a percentage basis in districts other than in the North and East. This is in a way the cosmopolitan shift.

Table 2: Voter Behaviour at Parliamentary Elections in Districts (Other than North and East)

UNP/UNFGG/UPFA

Source: Department of Elections and Wikipedia. Note that figures under ‘National’ include North and East.

As this table shows, the overall shift towards the UNP/UNFGG has been +23.85 per cent and the drop of MRM -23.11 per cent. The most significant shifts have taken place in districts where the ‘share of minorities’ or the ‘multicultural dimension’ is high. The Central Province, and its three districts – Nuwara Eliya (+22.62), Matale (+21.37) and Kandy (+21.09) – stand prominent. In this province, taken as an example, the share of the Muslims and the Hill Country Tamils stands high, but without a major shift among the Sinhalese, the above result could not have been possible.[35]

Another significant factor in the cosmopolitan shift in elections is the ‘share of urbanisation.’ The count of urbanisation in Sri Lanka is not very sophisticated. The urban population is still considered 18.4 per cent, counted on the basis of the population in municipal and urban council areas. Even if this methodology is acceptable, it has been an extremely slow and cumbersome process to upgrade divisional (rural) councils to urban councils or municipal councils. There are 23 municipal councils and 41 urban councils at present. If we take the municipal council areas as an example, all cannot be considered congruent with old electorates although names are the same.[36] For example, the Colombo Municipal Council area covers several electorates. However, it is interesting to note that out of 23 municipal council areas, the voting in 14 areas went significantly in favour of the UNFGG, and the UPFA could win only 6 areas at the last general elections in August. When it came to the urban council areas, the congruence between a parliamentary electorate and a local government area is complicated. However, most of the urban council areas out of 41 were located within the districts, which were won by the UNFGG.

Having said the above, the ‘cosmopolitanism’ of rural voters should not be underestimated. After all, Sri Lanka is a small country with high connectivity. As the above table shows, the highest drop of the MRM was in Polonnaruwa (-25.59) and then came Moneragala (-23.11), although the latter district could not be won by the UNFGG. What this shift signifies is the leadership factor, and at elections, the campaign factor countering parochial nationalism.

There were other cosmopolitan trends discernible at the parliamentary elections. For example, the extremist political parties could not get much of a foothold whether in the South or the North. The political party of the infamous Bodu Bala Sena (Buddhist Force Army), the Bodu Jana Peramuna (BJP), contested 16 districts but obtained only 20,377 votes, mere 0.18 per cent of the total polled. The fate of the Tamil National People’s Front (TNPF) was very much similar, obtaining only 18,644 votes in Jaffna and 0.17 per cent altogether. The UNFGG managed to win one seat each in Jaffna and Vanni districts showing also a trend of cosmopolitanism among the overwhelmingly Tamil voters, some of whom favouring national parties who assure minority rights.

Conclusion

There were two purposes to the present chapter, one theoretical and the other empirical or practical. The first part of the chapter outlined cosmopolitanism as a concept and a social philosophy, or one might even say an ideology, which could supply a viable alternative to narrow nationalism or ethnonationalism in the case of Sri Lanka or any other country. The second part of the chapter was based on the observation that cosmopolitanism is also a social phenomenon that might appear or disappear, like any other phenomenon, and that it has appeared at the last two elections in January and August in bringing desirable political change and democracy to the country. There have been emerging synergies between cosmopolitanism, democracy, and good governance. The empirical evidence related to the two elections were analysed to ascertain this cosmopolitan trend within the limits of this short chapter.

When cosmopolitanism is understood in that twin manner, it is an obvious conclusion to say that cosmopolitanism can be promoted both as a social philosophy or a public policy on the one hand, and as a political culture (with values and attitudes) through education with desirable social or electoral behaviour on the other hand. It is also evident that the social foundations of cosmopolitanism could be further expanded and strengthened through measures such as urbanisation, promotion of cultural integration of different communities, and technological advancements in communication. It is important to note that what appeared as an urban phenomenon with minority input at the presidential elections expanded into the rural areas at the general elections. Political leadership (i.e., President Sirisena, Prime Minister Wickremesinghe and former President Kumaratunga) and organisational factors (i.e., the UNFGG) in promoting cosmopolitanism might be the most decisive factors in this link at present and in the future. The modern youth equipped with information technology undoubtedly played (and would play) a decisive role in this transition both in the urban and rural areas.

*Many thanks to Prema-chandra Athukorala (Australian National University) for his clarifications on P. Athukorala & S. Jayasuriya, ‘Victory in War and Defeat in Peace: Politics and Economics of Post-Conflict Sri Lanka’ (2015) Asian Economic Papers 14(3): pp.22-54.

[1] J. Wickramaratne (2014) Towards Democratic Governance in Sri Lanka: A Constitutional Miscellany (Colombo: Institute for Constitutional Studies); A. Welikala (Ed.) (2015) Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects (Colombo: Centre for Policy Alternatives).

[2] K.M. De Silva (1986) Religion, Nationalism, and the State in Modern Sri Lanka (Florida: University of South Florida); A.J. Wilson (2000) Sri Lankan Tamil Nationalism (London: Hurst).

[3] Much earlier analyses were by H. Wriggins (1960) Ceylon: Dilemmas of a New Nation (Princeton: Princeton University Press) on linguistic nationalism at the 1956 elections, and R.N. Kearney (1967) Communalism and Language in the Politics of Ceylon (Durham: Duke University Press) on communalism in general.

[4] Kearney (1967).

[5] N. DeVotta (2014) From Civil War to Soft Authoritarianism: Ethnonationalism and Democratic Regression in Sri Lanka (New York: Routledge).

[6] A. Bandarage (2009) The Separatist Conflict in Sri Lanka: Terrorism, Ethnicity, Political Economy (New York: Routledge).

[7][7] L. Fernando, ‘Sri Lanka’s Predicament: Ethno-Nationalism versus Civic-Nationalism’, Asian Tribune, 25^th June 2007; L. Fernando, ‘Sri Lanka: On the Question of Nationalism’, Colombo Telegraph, 13^th May 2013.

[8] L. Fernando, ‘A Victory for ‘Cosmopolitanism’ over Narrow Nationalism’, Sri Lanka Guardian, 29^th August 2015.

[9] The pioneer advocate of jathika chinthanaya was Gunadasa Amarasekara, a popular fictionist. Later the main ideology became developed by Nalin de Silva (a professor) whose pioneer sketch of this ideology was in Mage Lokaya (My World) in 1986. See also, K. Senaratne, ‘Jathika Chinthanaya and the Executive Presidency’ in Welikala (2015): Ch.16.

[10] S. Vertovec & R. Cohen (Eds.) (2002) Conceiving Cosmopolitanism: Theory, Context, and Practice (Oxford: Oxford University Press); G. Delanty (2009) The Cosmopolitan Imagination: The Renewal of Critical Social Theory (Cambridge: Cambridge University Press); D. Held (Ed.) (2010) Cosmopolitanism: Ideals, Realities & Deficits (Cambridge: Polity Press); G. Delanty (Ed.) (2012) Routledge Handbook of Cosmopolitanism Studies (New York: Routledge).

[11] G. Delanty, ‘Nationalism and Cosmopolitanism: The Paradox of Modernity’ in G. Delanty & K. Kumar (Eds.) (2006) The Sage Handbook of Nations and Nationalism (London: Sage).

[12]Although Rousseau criticised cosmopolitanism of Diogenes’ type, he was an advocate of ‘civic patriotism’ and not ‘ethnic patriotism.’

[13] P. Kleingeld (2012) Kant and Cosmopolitanism: The Philosophical Ideal of World Citizenship (Cambridge: Cambridge University Press): p. 1.

[14] G. Evans (2008) Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington: Brookings Institution Press).

[15] Kleingeld (2012).

[16] Ibid: 8.

[17] See J. Bohman & M. Lutz-Bachmann (Eds.) (1997) Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (Massachusetts: MIT Press).

[18] H. Kohn (1944) The Idea of Nationalism: The Study of Its Origins and Background (New York: The Macmillan Publishers); E.J. Hobsbawm (1990) Nations and Nationalism since 1780: Programme, Myth, Reality (Cambridge: Cambridge University Press).

[19]Apart from Marx’s famous but often mistaken dictum that ‘workers have no nationality,’ his main thesis was arguing against Friedrich List’s narrow analysis of the ‘national system of political’ economy: G. Achcar (2013) Marxism, Orientalism, Cosmopolitanism (London: Saqi Books). Marx advocated a world outlook and analysis.

[20] E. Kedourie (1960) Nationalism (London: Hutchinson).

[21] Delanty (2012): p. 2.

[22] L. Trepanier & K. Habib (Eds.) (2011) Cosmopolitanism in the Age of Globalization: Citizens without States (Kentucky: The University Press of Kentucky).

[23] Delanty (2012): pp. 38-46.

[24] U. Ziemer & S. Roberts (Eds.) (2013) Eastern European Diasporas, Migration and Cosmopolitanism (New York: Routledge): p.7.

[25] Delanty (2012): p. 3.

[26] Ibid.

[27] C.A. Chandraprema (2012) Gota’s War (Colombo: Ranjan Wijeratne Foundation).

[28] M. Christensen & A. Jansson (2015) Cosmopolitanism and the Media: Cartographies of Change (New York: Palgrave): p.5.

[29] L. Chouliaraki & B. Blaagaard (Eds.) (2014) Cosmopolitanism and the New News Media (New York: Routledge): Ch.8. It is interesting to note the emergence of a formative type of cosmopolitan solidarity in Sri Lanka during the Asian Tsunami in December 2004. Facing natural calamity, people, transcending ethnic and other barriers, got together. However, this trend did not last long. But the experiences seem to be absorbed by the youth.

[30] One important study in this direction is by N. Gunawardene, ‘Sri Lankan Parliamentary Election 2015: How Did Social Media Make A Difference?’, Groundviews, 3^rd September 2015.

[31] Athukorala & Jayasuriya (2015).

[32] It may also be useful to undertake this analysis at the electorate level where the variations in these variables would be more conspicuous.

[33] Chouliaraki & Blaagaard (2014).

[34] Gunawardene (2015).

[35]This chapter does not attempt to analyse all the important figures in the table for want of space.

[36]The municipal council areas are: Colombo, Dehiwala-Mt. Lavinia, Kotte, Kaduwela, Moratuwa, Negombo, Gampaha, Kurunegala, Kandy, Matale, Dambulla, Nuwara Eliya, Badulla, Bandarawela, Galle, Matara, Hambantota, Ratnapura, Anuradhapura, Jaffna, Batticaloa, Kalmunai, and Akkairapattu.

Chapter 13 | The Need for a New Constitution for Sri Lanka

Rohan Edrisinha

If Sri Lanka is to consolidate the democratic gains of 2015, it is vital that President Sirisena’s Sri Lanka Freedom Party (SLFP) and Prime Minister Wickremesinghe’s United National Party (UNP), overcome their differences, rivalries and ideological differences and jointly provide leadership to introduce a Third Republican Constitution. A new constitution that learns from the mistakes of the 1972 and 1978 Constitutions, adapts features from international best practice and which is compatible with basic principles of constitutionalism, is vital for the introduction of good governance, the protection of human rights, and national reconciliation and unity.

Why do we need a new Constitution?

The first two republican constitutions were partisan, were not supreme, and suffered from the same basic flaws: they were designed to promote the political vision and ideology of the party in power; they entrenched, rather than countered, majoritarianism; and they were designed with the convenience of the executive, rather than the empowerment of the People, as their primary motivation or rationale.

The First Republican Constitution of 1972 was essentially a United Front Constitution which introduced what Neelan Tiruchelvam has called the ‘instrumental’ use of constitutions by governments to further their own political agendas. The Second Republican Constitution of 1978 was instrumental in introducing what its most credible critic, Chanaka Amaratunga, described as the authoritarian and realpolitik vision of its principal architect, J.R. Jayewardene. Both constitutions were introduced by governments that possessed two-thirds majorities in Parliament, thereby removing the need for consensus across the political and ethnic divide. Both constitutions concentrated power in a single institution (the National State Assembly under the 1972 Constitution and the office of the Executive President under the 1978 Constitution). Both were drafted and adopted with little meaningful public participation. Despite the fundamental flaws being the same, the most vocal critics of one were the principal architects of the other.

If Sri Lanka is serious about consolidating the democratic achievements of 2015, and preventing a return of the authoritarianism of a kind experienced in the country since 1982, it must introduce a new constitution that divides power, promotes effective checks and balances, and empowers the people so that their elected politicians remain accountable to them between elections. A new constitution that is a non-partisan, consensus document is essential for responsive and accountable governance.

The Criteria for Evaluating a Constitution

A constitution is meant to protect the people from those who exercise political power and empower the people vis-à-vis the rulers. Friedrich Hayek in his seminal work, The Constitution of Liberty, highlighted this fundamental objective as follows:

“The formula that all power derives from the people referred not so much to the recurrent election of representatives as to the fact that the people, organised as a constitution-making body, had the exclusive right to determine the powers of the representative legislature. The constitution was thus conceived as a protection of the people against all arbitrary action, on the part of the legislative as well as the other branches of government.”[1]

If a constitution is to achieve such an objective, the people have to be actively engaged and involved in the constitution-making process. The pro-ruler and pro-executive convenience biases of the 1972 and 1978 Constitutions, which undermined their people empowerment features, existed because these constitutions were designed by the government, for the government, and of the government. It is vital that the same mistake is not repeated in 2016. The theory of constitutionalism highlights what the objectives of a constitution should be.

It should provide a political frame for society or the institutional architecture for the governance of the country.
It should protect the freedom and autonomy of the individual and the rights of minorities – all minorities, not just ethnic and religious minorities.
It should enshrine values and principles by which the society should be governed.

A constitution is assessed on the basis of how it achieves these three objectives. In Sri Lanka the constitutional reform debate has tended to focus almost exclusively on the first objective: the debate on whether the executive should be presidential or parliamentary; the electoral system for electing members to the legislature, should it be first-past-the-post or based on proportional representation etc. While these are significant issues, it is important to recognise the significance of the other two objectives.

Why do we need a constitution? If one looks to constitutional history one sees that the raison d’être for a constitution was to act as a check on majoritarianism. While it was recognised that in a democracy, decision-making by determining what the majority desired was an important working principle, it was also recognised that in relation to some matters, particularly those dealing with human rights, majoritarian decision-making was not appropriate as it would result in what John Stuart Mill called ‘the tyranny of the majority.’ It was decided that such issues should then be taken outside the scope of the majoritarian decision-making power of the legislature, removed from the jurisdiction of the elected Parliament and placed within the scope of a supreme constitution. An example would be inserting a bill of rights into the constitution to protect basic fundamental rights even from the reach of the elected representatives of the people. A constitution was therefore conceived to protect certain important matters from the reach of the legislative and executive branches of government. It was conceived in the words of Eugene Rostow, a former Dean of Harvard Law School, as a ‘counter majoritarian document.’

In recent years, the norm-setting aspect of a constitution – its values and principles – has been highlighted. The 1996 Constitution of South Africa, which is still seen as one of the most progressive constitutions in the world, offers an excellent example. Article 1 of the constitution declares that ‘South Africa is a republic founded on the following values’ and then lists a series of them. These include human dignity. non-racialism, non sexism, the rule of law; multi-party democracy, accountability, openness, and responsiveness. Article 2 declares ‘The Constitution is supreme. All law inconsistent with it is void.’ The contrast between the first two articles of the South African constitution and the Sri Lankan constitution is striking. The former highlights values and principles and their supremacy. The latter is obsessed about power and who exercises power.

The Constitution must really be Supreme

A constitution is the supreme law of the land. But even this basic and to many obvious first principle has been rejected by the drafters of Sri Lanka’s autochthonous constitutions. The 1978 Constitution contains three provisions that not only undermine the supremacy of the constitution, but are unparalleled in constitutional democracies. These are Articles 16, 80(3) and 84 of the constitution. Article 16 basically states the opposite of Article 2 of the South African constitution. It declares that all existing law, written and unwritten, is valid even if it is inconsistent with the supreme law, the constitution. Article 80(3) prevents the people from challenging provisions in laws that have been enacted by the legislature on the ground that the legislature has enacted an unconstitutional law. This is a right that the people in India, Nepal, Bangladesh, Pakistan, South Africa, the USA, Canada, and all constitutional democracies have, and is a vital safeguard for the people in protecting their rights and upholding the supremacy of their constitution. This right, which existed under the Soulbury Constitution, was done away with by the framers of the 1972 Constitution and continued under the present constitution. Article 84, believe it or not, instructs Parliament how it can introduce unconstitutional laws.

These three provisions are instructive in demonstrating the (lack of) commitment of Sri Lanka’s constitutional framers to the principle of the supremacy of the constitution. If the new constitution is to be compatible with international best practice and basic principles of constitutionalism, and promote good governance and accountability, these three provisions should not be part of the new constitution.

It is not surprising that the main political parties have demonstrated little if any interest in the important issues highlighted above. These issues strengthen the powers of the people at the expense of the politicians and impose constitutionally mandated qualifications on how governmental power is exercised. The manner in which the Nineteenth Amendment to the Constitution was adopted in 2015 reminds us of the importance of continuous public engagement in the constitution-making process. The composition of the Constitutional Council under the Nineteenth Amendment is worse than under the Seventeenth Amendment. Various clauses such as those on dual citizenship were inserted without any public consultation and were politically motivated. The Members of Parliament, both from government and opposition, engaged in a process of closed door political wheeler-dealing without any sense of shame or guilt that in so doing they were violating first principles of constitution-making. Can this same Parliament be trusted with the task of leading the Third Republican Constitution making process?

Some Observations on Current Constitutional Issues

The Executive

An important lesson from the experience of the Second Republican Constitution is that a person elected by the whole country tends to have an exaggerated notion of his/her own importance, legitimacy, and authority. This was foreseen by Dudley Senanayake who opposed presidentialism when it was discussed in the early 1970s:

“The Presidential system has worked in the United States where it was the result of a special historic situation. It works in France for similar reasons. But for Ceylon it would be disastrous. It would create a tradition of Caesarism. It would concentrate power in a leader and undermine Parliament and the structure of political parties.”[2]

As predicted, the executive presidency has, since its introduction, fostered authoritarianism, undermined other democratic institutions such as the Cabinet of Ministers, Parliament, and the judiciary, and through the device of the referendum – as was seen in 1982 – even elections and multiparty democracy. The locus of power shifted from Parliament, which, with all its shortcomings, was at least relatively open and transparent, to a closed Presidential Secretariat with unelected and powerful presidential advisors and officials. Presidential advisors who were often more powerful than Cabinet Ministers (especially during the Premadasa Presidency), were not accountable to the public.

An ‘overmighty’ nationally elected President also subverts coalition government and power-sharing as was seen in the brief period of co-habitation between Chandrika Kumaratunga and Ranil Wickremesinghe.[3] J.R. Jayewardene and his admirers often defended the presidential system as promoting stability. In the Sri Lankan context, stability could mean a government consisting of several political parties across the ideological and ethnic divide, rather than the concentration of power in a single individual. There needs to be a more nuanced understanding of the meaning of stability in the context of Sri Lanka’s political culture, for, as was seen since 1982, there is a fine line between a simplistic definition of stability and authoritarianism.

It is a matter of concern that some elements in the government are promoting the idea of a nationally elected Prime Minister who will sit in Parliament. The Prime Minister can be defeated on a vote of confidence in Parliament, but this will in turn, cause Parliament to be dissolved. This ill-conceived idea which retains the basic flaws of concentrating an unacceptable degree of power in a single person was tried unsuccessfully in Israel in the mid 1990s and subsequently abandoned.

The Electoral System

There was a consensus at the elections in 1994 that Sri Lanka should opt for a genuinely mixed system (Mixed Member Proportional or MMP) similar to that practiced in Germany, New Zealand, and now Scotland. Such a system combines the best features of the simple plurality system (first-past-the-post) and the cardinal principle of proportional representation that representation in Parliament should be in proportion to the votes received by parties rather than the ‘winner takes all’ principle that creates a mismatch between votes received by parties and the seats allocated in Parliament.[4]

The mixed system is also easy for the people to understand, easy to administer, can include mechanisms to ensure inclusion and women’s representation (an important consideration given that the Sri Lankan legislature has the lowest women’s representation in South Asia), and can be designed to prevent floor-crossing while ensuring that Members of Parliament also possess a degree of independence from their party leadership.

The Twentieth Amendment proposed but eventually aborted in 2015 was flawed in all these respects and should be completely discarded. It was incomprehensible even to lawyers, was designed to favour larger political parties to the disadvantage of smaller parties, and failed to provide an appropriate mix between the simple plurality system and proportional representation as it favoured the former at the expense of the latter.

The Bill of Rights

Sri Lanka’s bill of rights falls short of international norms and standards. The basic flaws are with respect to the rights enumerated, the restriction/limitation clause that makes it too easy for the political branches to curtail such rights, and with respect to their scope and enforcement.[5] The following improvements must be made in designing the bill of rights of a Third Republican Constitution:

The rights and their scope need to at least be compatible with the international covenants on human rights.
The restriction or limitation clause (Article 15) is drafted in a manner that makes it possible for the executive and legislature to impose restrictions with no criteria of objectivity and proportionality. This weakness has been highlighted for many years including during the deliberations of the All Party Conference convened by President Premadasa in the early 1990s.
The First and Second Republican Constitutions both contained provisions that validated laws even though they were inconsistent with the bill of rights and the constitution (Article 16 of the present constitution). This anomalous feature that is inconsistent with first principles of constitutionalism should be removed.
The provision that requires a fundamental rights application for violations by executive and administrative action be filed in the Supreme Court (Article 126) is inconsistent with principles of access to justice and the rule of law. Persons living outside Colombo find it difficult to invoke the jurisdiction of the court and this provision undermines the role of the Supreme Court as the final appellate court of the country which is expected to deal with questions of law rather than fact. It also creates the anomaly of providing for no appeal in an important area of jurisprudence which could amount to a violation of the rule of law. Allowing fundamental rights applications to be made in Provincial High Courts will not only address such weaknesses but also help to mainstream human rights among the judiciary and the legal community at a broader level.

The Independence of the Judiciary and Other Legal Institutions

The present constitutional provisions protecting the independence of the judiciary should be strengthened particularly with respect to the disciplinary control and removal of appellate court judges. However, the damage done to this important institution over the past twenty years in particular means that it will need more than constitutional reform to restore the institution’s integrity and credibility.

Another institution that lacks credibility is the Attorney General’s Department. It has proved particularly incompetent in its role as a reviewer of the constitutionality of draft legislation and advising the state on the constitutional propriety of its actions. Indeed it is seen as an institution that defends and seeks to justify unconstitutional laws and actions. The reintroduction of constitutional review of legislation by the courts through the initiative of the public will not only protect the supremacy of the constitution but also serve as an incentive for the Attorney General’s Department to improve its performance in this area.

Devolution of Power in a Unitary State

The devolution of power to the provinces under the Thirteenth Amendment to the Constitution is weak, fragile, and therefore can be undermined by the centre. Significant provisions of the amendment remain unimplemented nearly 30 years after its introduction, which again raises the question of whether our constitution is supreme. There is something fundamentally wrong with a constitution that enables the executive to disregard constitutional provisions it views as inconvenient, and which provides no remedy for the people to ensure constitutional compliance. The shortcomings of the Thirteenth Amendment have been experienced by Provincial Councils, Chief Ministers, and Boards of Ministers throughout the country.[6] With respect to the subjects that are to be devolved, it is vital that the Provincial Councils have the power to exercise such powers without the centre undermining or reclaiming such powers as it has often done since 1987. The powers of the centre to respond effectively to any threats to the unity and territorial integrity of the country, which in my view, already exist in the constitution, should be retained.

It is vital that following the defeat of the LTTE that the roots causes of the conflict are addressed, and power-sharing and genuine devolution of power are important components of such a response. It is important to recognise that the Tamil people voted for moderation at the January and August 2015 elections, rejected Tamil hard-line nationalist parties and groups, and that a failure to respond adequately to reasonable demands for devolution and equality will ultimately strengthen the forces of Tamil extremism. Addressing the reasonable demands for genuine and secure devolution of power to the provinces by overcoming the weaknesses in the Thirteenth Amendment is the best way to generate trust and goodwill among the Sinhalese, Tamils, Muslims, and other communities in the country. Creating such inclusivity and national reconciliation through genuine power-sharing is the best guarantee against threats to the unity and territorial integrity of the country.

The most difficult challenge for the framers of the Third Republican Constitution is how to deal with the provision entrenched in the constitution that declares Sri Lanka to be a unitary state. Is it possible to grant enhanced and effective devolved power to the provinces within the framework of a unitary state? It is important to remember that when the Thirteenth Amendment was introduced in 1987, several petitioners challenged the Bill on the grounds that the devolution to Provincial Councils envisaged under the amendment violated the unitary character of the constitution. The Supreme Court in a 5-4 split decision held that it did not, with the majority referring to the various provisions in the amendment that effectively ensured the dominance of the centre over the provinces.[7] The minority held that the powers devolved to the provinces were sufficient to undermine the unitary principle. Given the divided opinion on the court, it is possible to argue that what was introduced under the Thirteenth Amendment amounted to ‘maximum devolution within a unitary state.’ How then does one strengthen devolution, introduce ‘Thirteenth Amendment Plus’ that has been the minimum demand of the Tamil political leadership as well as minority groups in general, since 1995, that was proposed by the All Party Representative Committee (APRC)[8] and supported at various times both by the Rajapaksa regime and the present one, within the confines of the unitary state?

There are three reasons why, in my view, the term ‘unitary’ should be removed from the Third Republican Constitution. They are: (1) Historical; (2) Conceptual; and (3) Jurisprudential.

Historical Reasons

The political context in which the unitary label was introduced in the First Republican Constitution cannot be ignored. The Federal Party which had since the early 1950s emerged as the main representative of the Tamil people had on two occasions negotiated with Prime Ministers of Ceylon and agreed to political arrangements that fell short of a federal model.[9] On both occasions, the Prime Ministers had to renege on their commitments due to pressure from within their own parties and from the main opposition political party at the time. At the time of the 1970 general election, some individuals and groups had begun to question the moderate, democratic, and Gandhian approach of the leader of the Federal Party, S.J.V. Chelvanayakam, which had produced few results, and contested the Federal Party on a separatist platform. Chelvanayakam’s response was to call upon the Tamil people to reject separation while affirming his and the party’s commitment to a federal and united Ceylon. The Federal Party was swept to power and the separatist candidates fared so badly that they lost their deposits.[10]

When the United Front government established a Constituent Assembly to draft and adopt a new, autochthonous, republican constitution through a process that was extra-constitutional, the Federal Party agreed to support the process and participate in the assembly. However, then followed a decision that certainly with the benefit of hindsight, must be the most insensitive, short-sighted decision that had the most adverse long-term consequences for national reconciliation and unity in post independence Ceylon/Sri Lanka. The United Front government and its Minister of Constitutional Affairs, Colvin R. de Silva proposed in Basic Resolution No.2 that the new constitution should contain a clause that declared that ‘Sri Lanka is a unitary state.’ This was a move that was completely unnecessary as the Soulbury Constitution contained no such provision but was undoubtedly unitary in character.[11] Viewed in the context of the politics of the time and the general election result in particular, the initiative was both provocative and humiliating for the Federal Party. Several Federal Party leaders appealed to the Minister to withdraw the proposal, but given that the United Front government possessed a two-thirds majority in Parliament due to the distortions created by the simple plurality electoral system that existed at the time, Minister de Silva and his colleagues saw no reason to compromise. It should be noted also that the process leading to the adoption of the First Republican Constitution began the trend of governments in power drafting constitutions to enshrine and facilitate their political and ideological agendas and also to suit the convenience of the executive. However, for purposes of this chapter, it is clear that the introduction of the unitary label in the constitution was a particular affront to the moderate Tamil political leadership and the Tamil people who had overwhelmingly endorsed them at the recent elections. This historical context cannot be ignored.[12]

Conceptual Reasons

The term ‘unitary’ is traditionally defined as the habitual exercise of political power by one, central authority. Its Latin root unus – one – is significant. Power may be decentralised or devolved within a unitary constitution, but this is granted or given by the central authority and therefore can be taken back by that authority unilaterally (Note the root unus, again.) The power granted to the decentralised authority is therefore relatively insecure. As C.F. Strong has observed, “It does not mean the absence of subsidiary law making bodies, but it does mean that they exist and can be abolished at the discretion of the central authority.”[13]

Given the traditional definition of the term unitary outlined above, the question that arises is whether power that is secure, guaranteed, and effective can be devolved within the framework of a unitary state. The practice or implementation of the Thirteenth Amendment or maximum devolution within a unitary state supports the argument that devolution is vulnerable in such a context.[14]

Jurisprudential Reasons

The recent jurisprudence of the Si Lankan Supreme Court has provided a clear answer to the question posed above. The most unequivocal of its decisions is the case of Solaimuthu Rasu v Superintendent, Stafford Estate, Ragala (2013)[15] where all three judges of the court, Mohan Peiris CJ, Sripavan J, and Eva Wanasundera J, wrote separate concurring opinions, a rather uncommon practice in the Sri Lankan Supreme Court.[16] The case dealt with the interpretation of the provisions of the Thirteenth Amendment dealing with land, one of the contentious issues when the Thirteenth Amendment was negotiated and drafted with Indian facilitation. The Supreme Court had to decide whether the Court of Appeal had erred in holding that the Provincial High Court had jurisdiction to hear cases dealing with the dispossession or alienation of state lands. The Court held that the alienation of state land remained a central government responsibility. Peiris CJ used controversial and unconvincing approaches to interpretation to justify his position that the intention of the framers of the Thirteenth Amendment was to retain central control over state land. In In re the Thirteenth Amendment (1987) Wanasundera J cited a famous quotation from Lord Denning warning against a literal approach to interpretation and justifying filling in the gaps in the text to make sense of the enactment rather than “opening it up to destructive analysis,” and then made the startling observation that “as such” the Thirteenth Amendment should be interpreted to “never pave way (sic) to destruction of any sort.” Both judges adopted questionable approaches to interpretation and the citation of authority to support their view that under the Thirteenth Amendment, institutions of the centre retained overriding control over the subject of land.

Both judges, however, buttressed these arguments by referring to the term ‘unitary’ and its traditional definition, which had been cited by Sharvananda CJ in the majority decision in the Thirteenth Amendment judgment. Peiris CJ referred in this context to the power structure and power relationships under the Thirteenth Amendment. He stated that the term unitary implied the dominance of the centre and the subsidiary nature of the provincial councils. Wanasundera J took the view that there could be no conflict between the centre and the provinces under a unitary constitution, as the centre would always prevail in such situations.

In many of the constitutional cases dealing with the Thirteenth Amendment in the first ten years after its adoption, the Supreme Court displayed some sensitivity to the concept of devolution of power and the text of the amendment to ensure that the Provincial Councils and their representatives possessed a reasonable degree of power and autonomy. There was hardly any reference to the term ‘unitary’ and references instead to the linkages between provincial institutions and democracy, accountability, and participatory democracy. In the past ten years, however, the Supreme Court has displayed a lack of empathy for such values and the attitude of the court in the Solaimuthu Rasu Case is a culmination of a process of increasing support for the political branches’ attempts to undermine the devolution of power to the provinces. While this may be part of a larger trend of the judiciary under pliant Chief Justices being willingly co-opted by the executive, the jurisprudence of the Court which follows the traditional conceptual understanding of the term ‘unitary’ supports the argument that there can be no effective devolution of power within the framework of a unitary state as traditionally defined.

This will therefore be the most difficult challenge faced by the Constitutional Assembly. The term unitary should never have been introduced into the constitution and must be removed in order to ensure ‘Thirteenth Amendment Plus’ or meaningful devolution of power. This however will only be possible if the opposition adopts a responsible approach to the constitution-making project, and allows a rational debate on the pros and cons of retaining the unitary label in the new constitution. There are problems relating to myths and misconceptions about the term, accentuated by issues of language and translation. Since the Sinhala terms for ‘united’ (eksath) and ‘unitary’ (ekeeya) are often used interchangeably, many Sinhalese believe that for a country to be united it has to be ‘ekeeya.’ If these issues can be discussed reasonably openly and an informed debate takes place on the limitations in the Thirteenth Amendment (led ideally by the Chief Ministers of all provinces and from all political backgrounds who have experienced the frustrations of trying to implement the amendment), and on the meaning of the term unitary and why deleting it from the constitution does not necessarily have any implications for the unity and territorial integrity of the country and indeed could promote unity by facilitating a durable political and constitutional settlement, then there is a chance that the Third Republican constitution will lay the foundation for a new social contract that promotes equality, dignity, and responsive governance.

How should a new Constitution be adopted? Challenges of Process

The resolution requiring Parliament to sit as a Constitutional Assembly to deliberate on the new constitution was finally adopted unanimously after a long delay.[17] The delay was unnecessary and was caused by the opposition trying to insert into a resolution that was essentially about process, matters relating to substance. Another strange feature of the debate on the resolution was that several opposition leaders who took the lead in criticising the 1978 Constitution at the time of its adoption and subsequently, became the main opponents of the process to adopt a ‘new’ constitution.[18]

From the outset, the government made it absolutely clear that it intended to follow the procedure for constitutional reform spelled out in the existing constitution (Articles 82 and 83). Parliament would have to pass the new constitution with a two-thirds majority vote and thereafter the constitution would have to be approved by the people at a national referendum.

Given the rationale for a constitution outlined above, it is far from ideal for Parliament or a Select Committee of Parliament to draft and adopt a constitution. Parliament is a creature of the constitution and subordinate to the constitution, which is expected to reflect the will of the sovereign people and protect and empower the people from the politicians. A committee of Parliament designing a constitution without active and effective public engagement will involve a serious conflict of interest. In some countries which have been mindful of the need for a broader and more inclusive approach to constitution-making such as South Africa and Nepal, special measures, such as the election of an inclusive Constituent Assembly to draft and adopt a new constitution, were adopted to ensure that the sui generis character of constitution-making was recognised. A Constituent Assembly has constitutive powers to draft and adopt a new constitution. Such an option was not available in Sri Lanka as there was no mandate sought from the people to support such an extra-constitutional process. Furthermore, notwithstanding the theoretical anomalies with respect to parliamentarians drafting constitutions, practical considerations and political realities require that Parliament, which consists of the elected representatives of the people, provide leadership in the constitution-making process. One can only hope that they recognise the special responsibilities involved in constitution-making as opposed to their normal legislative functions.

The draft resolution therefore outlined a process that sought to provide for effective public engagement in the constitution-making process, ensure that Members of Parliament recognised their special responsibility when participating in the constitution-making process, while also following the amendment and repeal procedures in the existing constitution. It provided that Parliament should sit as a Constitutional Assembly (not a Constituent Assembly) to focus exclusively on deliberation on the substance of a new constitution in a manner that facilitates maximum public scrutiny and engagement. The fact that the deliberations of the Constitutional Assembly will be recorded in Hansard and therefore made available to the public will help to overcome a basic flaw in the 1995-2000 constitution-making process where the deliberations of the Select Committee of Parliament were shielded from public scrutiny.[19]

The Constitutional Assembly will then present the draft constitution to Parliament so that Parliament can adopt the constitution with a two-thirds majority vote. If this is done then the draft constitution will be presented to the people for their approval in a national referendum. In the circumstances, the process proposed in the resolution was fair.

The argument made by some opposition leaders and commentators that the basic features doctrine developed by the Indian Supreme Court to protect core constitutional values and principles is applicable in Sri Lanka is ludicrous. The Indian constitution was adopted after an inclusive and democratic process of constitution-making by a Constituent Assembly soon after independence. The Indian constitution was not a partisan document designed to serve the party in power at the time. It stands above party politics, is supreme, and remains broadly a consensus document. It was in such a context that the Indian Supreme Court developed the basic structure doctrine to protect the people and their constitution from their politicians. Applying the basic structure doctrine to a partisan, fundamentally flawed constitution that reflected the interests of J.R. Jayewardene’s United National Party, would be utterly inappropriate and demonstrates a lack of appreciation of the fundamental rationale for the doctrine on the part of its Sri Lankan proponents.

It is also vital that the lessons of the Nineteenth Amendment be learned. The manner in which the amendment was finally adopted was unacceptable. The final version that was passed was very different from what was initially proposed to the public. Various backroom deals were negotiated by politicians in Parliament without public engagement and participation. It was not surprising therefore that the provisions relating to the composition, powers, and functions of the Constitutional Council, or the provisions relating to a ‘national government,’ reflected the interests of the politicians rather than the people. One can only hope that the procedure adopted by the resolution will prevent such a process from being repeated and ensure a culture of justification and accountability on the part of the members of the Constitutional Assembly and Parliament.

Conclusion

A new constitution that is compatible with first principles of constitutionalism and which includes the values, principles, and substantive features outlined above can only be adopted if the President, the Prime Minister, and the Leader of the Opposition work together, and also harness the support of other sections of the opposition, minority parties, and the Janatha Vimukthi Peramuna (JVP). These parties and forces will inevitably have differences and rivalries in the next few months. They must resolve, however, to transcend such divisions with respect to the vital responsibility of providing leadership to the constitution-making process. This must coincide with a process of public education and engagement to ensure that the new constitution is not just a political deal of convenience, but rather, a genuine attempt to learn the lessons of the past, consolidate constitutionalism and democracy, and forge a new social contact that has a broad consensus among the various political, ethnic, and religious groups in the country. The process of constitutional change that commenced in 2015 and will continue in 2016 must not suffer the same fate as the process of 1995-2000 when the then opposition UNP behaved irresponsibly and effectively sabotaged the reform process. Our politicians must stop ‘monkeying’ with the Constitution. Sri Lanka deserves a new constitution that is truly a non-partisan, consensus, supreme law that protects and empowers its people: a constitution drafted by ‘reason and choice’ rather than ‘accident and force.’[20]

[1] F.A. Hayek, (1972) The Constitution of Liberty (Chicago: Chicago University Press): p.178.

[2] Dudley Senanayake and Colvin R. de Silva were the two most persuasive critics of the presidential system when it was discussed in the early 1970s in Ceylon. See also for academic critiques essays by Amaratunga and Chandra R. de Silva in C. Amaratunga (1989) Ideas for Constitutional Reform (Colombo: Council for Liberal Democracy).

[3] C.R. de Silva, ‘The Overnighty Executive? A Liberal Viewpoint’ in Amaratunga (1989): pp.313-326; C.R. de Silva, ‘The Overmighty Executive Reconsidered’ in A. Welikala (Ed.) (2015) Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects, Vols. 1 & 2 (Colombo: Centre for Policy Alternatives): Ch.26.

[4] See R. Edrisinha & A. Welikala (Eds.) (2008) The Electoral Reform Debate in Sri Lanka (Colombo: Centre for Policy Alternatives).

[5] See Centre for Policy Alternatives (2008) GSP+ and Sri Lanka: Economic, Labour, and Human Rights Issues (Colombo: Centre for Policy Alternatives).

[6] See R. Edrisinha & A. Welikala (Eds.) (2008) Essays on Federalism in Sri Lanka (Colombo: Centre for Policy Alternatives).

[7] See In Re the Thirteenth Amendment to the Constitution (1987) 2 SLR 312.

[8] Rohan Edrisinha, Mario Gomez, V.T. Thamilmaran & Asanga Welikala (Eds.) (2009) Power Sharing in Sri Lanka: Political and Constitutional Documents 1926 – 2008 (Colombo & Berlin: Centre for Policy Alternatives): Ch.37.

[9] Ibid: Chs.9, 10.

[10] A.J. Wilson (1988) The Break-Up of Sri Lanka: The Sinhalese-Tamil Conflict (London: Hurst): Ch.5.

[11] N. Jayawickrama, ‘Reflections on the Making and Content of the 1972 Constitution: An Insider’s Perspective’ in A. Welikala (Ed.) (2012) The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice (Colombo: Centre for Policy Alternatives): Ch.1.

[12] See Edrisinha et al (2008) for more information on the history of the conflict in Ceylon/Sri Lanka and attempts to resolve the conflict through political and constitutional means.

[13] C.F. Strong (1963) A History of Modern Political Constitutions (New York: Puttnam’s).

[14] Cf. N. Walker, ‘Beyond the Unitary Conception of the United Kingdom Constitution’ in Welikala (2012): Ch.11; A. Welikala, ‘The Sri Lankan Conception of the Unitary State: Theory, Practice and History’ in A. Amarasingham & D. Bass (Eds.) (2016) Sri Lanka: The Struggle for Peace in the Aftermath of War (London: Hurst).

[15] S.C. Appeal 21/2013, Supreme Court Minutes 26^th September 2013. Judgment of Peiris CJ available at: https://www.colombotelegraph.com/wp-content/uploads/2013/09/Supreme-Court-29-09.pdf. Judgment of Sripavan J available at: http://www.supremecourt.lk/images/documents/sc_appeal_21_13sc.pdf. Judgment of Wanasundera J available at: http://www.supremecourt.lk/images/documents/sc_appeal_21_13w.pdf (all last accessed 21st March 2016).

[16] The difference in approach and emphasis among the three opinions is striking and revealing.

[17] Resolution of Parliament, 9^th March 2015, available at: http://www.parliament.lk/en/news-en/view/1160 (last accessed 14^th March 2015)

[18] Dinesh Gunewardena and Vasudeva Nanayakkara are 2 MPs who were leading and persuasive critics of the Second Republican Constitution of 1978 who were part of the Opposition group that were reluctant to support a resolution calling for the adoption of a new Constitution.

[19] Draft Resolution, Prime Minister’ s Office, available at: http://www.pmoffice.gov.lk/download/Constitutional%20Reform%20-%20Resolution%20E%2020151117.pdf (last accessed 21^st March 2016).

[20] A. Hamilton, Federalist No.1 in C. Rossiter & C.R. Kesler (Eds.) (1999) The Federalist Papers (New York: Mentor).

Editor’s Introduction

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 9^th 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 31^st 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 17^th August 2015, consolidating the democratic regime change that occurred at the presidential election of 8^th 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 28^th April 2015 and the process of enactment was completed by the Speaker’s certification two weeks later on 15^th May.[4] Since the new government took office on 9^th 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 13^th 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 9^th 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 28^th 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 17^th 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

8^th April 2016

[1] Resolution of Parliament, 9^th March 2015, available at: http://www.parliament.lk/en/news-en/view/1160 (last accessed 14^th March 2015)

[2] CPA’s preliminary submission to the PRC, 23^rd 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 14^th 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 14^th 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, 9^th February 2015, available at: https://www.colombotelegraph.com/index.php/maithri-proposals-on-constitutional-reforms-full-text/ (last accessed 14^th March 2015).

[15] Colombo Telegraph, 7^th March 2015, available at: https://www.colombotelegraph.com/wp-content/uploads/2015/03/Exclusive-19th-Amendment-draft-.pdf (last accessed 14^th March 2015).

[16] Colombo Telegraph, 17^th March 2015, available at: https://www.colombotelegraph.com/wp-content/uploads/2015/03/19th-Amendment-English-Gazetted-Bill.pdf (last accessed 14^th March 2015).

[17] Colombo Telegraph, 6^th April 2015, available at: https://www.colombotelegraph.com/wp-content/uploads/2015/04/SC-SD-4-to-19-of-2015.pdf (last accessed 14^th March 2015).

[18] Colombo Telegraph, 26^th 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 14^th 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, 13^th 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 14^th March 2016)

[22] A. Welikala, ‘From Presidential to Parliamentary State? A Midterm Look at Sri Lanka’s Constitutional Reform Process’, ConstitutionNet, 31^st 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 14^th 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 14^th 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.

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Chapter 5 | The Supreme Court’s Determination on the Nineteenth Amendment Bill

Shehara Athukorala

Once the Nineteenth Amendment Bill was placed on the Order Paper of Parliament on 24^th March 2015, it became susceptible to pre-enactment challenge within the terms of Article 121(1) of the constitution, read with Articles 120(a) and Article 123. The Supreme Court enjoys sole and exclusive jurisdiction in determining the constitutionality of Bills. In relation to Bills described in the long title as being for an amendment to the constitution, the constitutional review jurisdiction of the Supreme Court may be invoked by the President by a written reference addressed to the Chief Justice, or by any citizen by a petition in writing addressed to the Court. Such reference or petition must be filed within one week of the Bill being placed on the Order Paper of Parliament, and a copy of the reference or petition must at the same time be delivered to the Speaker, so that parliamentary proceedings can be stayed until the Court provides its determination. In relation to this category of constitutional amendment Bills, the only question which the Court is empowered to determine is whether the Bill as a whole or any of its provisions require to be passed not only by the usual two-thirds legislative majority in Parliament but also by a referendum. A referendum would be needed if the Court decides that the provisions of the Bill impinge on any entrenched provision of the constitution specified in Article 83. The Court is also empowered to specify in its determination the nature of the amendments that would make the Bill consistent with the constitution, or in other words, to avoid a referendum.

A number of petitions were presented in relation to the Nineteenth Amendment Bill, and a bench comprising Chief Justice K. Sripavan, Justice Chandra Ekanayake, and Justice Priyasath Dep PC heard oral submissions from the Attorney General, petitioners, and intervenient counsel on 1^st, 2^ndand 6^th April 2015.[1] The Speaker announced the findings of the Court in Parliament on 9^th April 2016 and a copy of the determination is reproduced in Hansard.[2]

The observations of the Court with regard to what was proposed in the Nineteenth Amendment Bill was politically significant inasmuch as the government would have to comply with the determination unless it was ready to override it by an appeal to the people. As with every previous amendment to the 1978 Constitution, however, the government was intent on avoiding a referendum on this occasion also, and during the judicial proceedings as well as subsequently in Parliament, the government made major amendments to its original proposals, thereby significantly diluting especially the extent of the changes to the executive presidency. A noteworthy 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 memorandum presented by the Attorney General containing the list of changes that the government intended moving at committee stage in Parliament.[3]

At the beginning of the determination, the Court itself enumerated a list of sixteen matters as being the principal changes contemplated by the Nineteenth Amendment, including the introduction of a right to information, a reduction of the term of office of the President from six to five years, the introduction of a two-term limit on the number of terms a person can hold office as President, the imposition of additional duties on the President and changes to presidential immunity making the President’s actions subject to the fundamental rights jurisdiction of the Supreme Court, the reintroduction of the Constitutional Council, the reduction of the term of Parliament from six to five years and amendments relating to the prorogation of Parliament, amendments relating to election laws,[4] changes made to Chapter VIII on Executive and the Cabinet of Ministers,[5] changes to the jurisdiction of the Supreme Court relating to disciplinary actions against Members of Parliament, the removal of the provisions relating to urgent Bills, provisions on the independent commissions, and special provisions applicable to the incumbent President. However, the substantive determination only deals with some of these matters (discussed below), and it must be assumed that the Court found all other proposed changes susceptible to amendment through a two-thirds majority and without a referendum.

Proposed Changes to the Executive Presidency

The thrust of most petitions in relation to the powers and functions of the executive presidency was that the proposed changes would alter the basic structure of the constitution by reducing the scope and finality of the President’s executive discretion and authority. In one submission, it was argued that changing the manner in which executive power was to be exercised, as set out in Article 4, would be a violation of the sovereignty of the people declared and entrenched by Article 3.[6] The Supreme Court however disagreed that any or every change to Article 4 would amount to a violation of Article 3, given that the constitution had not entrenched Article 4 in the same manner as Article 3. More substantively, the essence of the Court’s reasoning in this regard can be summarised as follows: that while under the framework of the 1978 Constitution, the President must remain the supreme executive authority (and any alienation of executive power that removed such final authority from the President would be unconstitutional), this neither meant that the President enjoyed any personal power divorced from the sovereignty of the people, nor did it mean that the President was the sole and unfettered repository of executive powers, because under the constitution not only are a number of other institutions recognised as exercising certain executive powers, but also because the exercise of the President’s powers are subject to checks and balances.[7] The Court elaborated on these points in the following way.

It observed that the President’s responsibility to Parliament for the exercise of executive power is established in Article 42,[8] and that Article 4(b) must be read in the light of Article 42. It is apparent to the Court from these provisions that the constitution did not intend the President to function as an unfettered repository of executive power unconstrained by the other organs of government. Similarly, Article 43 provided for a Cabinet of Ministers, of which the President was both a member and head, charged collectively with the direction and control of the government, and collectively responsible and answerable to Parliament. This again establishes that the President is not the sole repository of executive power, and that the responsibility of the executive to Parliament was reinforced by the provision that the President must appoint as Prime Minister the Member of Parliament who is most likely to command the confidence of Parliament. Thus, the constitution recognises that executive power is exercised by the President and the Cabinet of Ministers, and both are responsible to Parliament in the exercise of such powers. In addition to this institutional arrangement whereby executive powers is exercised together by the President and the Cabinet, the Court also noted that certain powers relating to the public service are vested in the Public Service Commission and Cabinet of Ministers and not concentrated on the President (Article 54 and 55).

The Court observed that sovereignty is in the people and they have made the President the head of the executive. Article 30 of the constitution entrusts the President with the exercise of executive power, and these powers must be either exercised by the President, or by someone to whom such power is delegated by the President. The transfer, relinquishment, or removal of a power conferred on one organ of government to another organ would be inconsistent with Article 3 read with Article 4, and in relation to executive functions, the authority and responsibility for ultimate acts or decision must be retained and exercised by the President. As long as the President is the head of the executive, the exercise of his powers remain supreme and others to whom such power is given must derive from the President, or exercise the President’s executive power, as a delegate of the President. The President must be in a position to monitor and give directions to others with such delegated authority in relation to the exercise of his powers. The Court then considered the constitutionality of Clause 11 of the Nineteenth Amendment Bill in the light of these observations. Clause 11 sought to repeal and replace Chapter VIII of the constitution on ‘The Executive: The Cabinet of Ministers’ with a range of far-reaching changes to reduce the President’s executive powers and simultaneously strengthen the Cabinet of Ministers and the Prime Minister in particular. The Court identified the following propositions in Clause 11 as being potentially inconsistent with the entrenched provisions:

Proposed Article 42(3): That the Prime Minister shall be the head of the Cabinet of Ministers
Proposed Article 43(1): That the Prime Minister shall determine the number of Ministers to the Cabinet, and the Ministries, assignment of subject and functions to such Ministers
Proposed Article 43(3): That the Prime Minister may at any time change the assignment of subjects and functions and recommend to the President changes in the composition of the Cabinet. Such changes shall not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament
Proposed Article 44(2): That the Prime Minister shall determine the subjects and functions which are to be assigned to Ministers appointed under paragraph (1) of this Article, and the Ministries, if any, which are to be in charge of, such Ministers
Proposed Article 44(3): That the Prime Minister may at any time change any assignment made under paragraph (2)
Proposed Article 44(5): That at the request of the Prime Minister, any Minister of the Cabinet may by Notification published in the Gazette, delegate to any Minister who is not a member of the Cabinet, any power or duty pertaining to any subject or function assigned to such Cabinet Minister, or any power or duty conferred or imposed on him or her by any written law, and it shall be lawful for such other Minister to exercise and perform any power or duty delegated notwithstanding anything to the contrary in the written law by which that power or duty is conferred or imposed on such Minister of the Cabinet.

In relation all these aspects, the Court noted that in the absence of any delegated authority from the President, if the Prime Minister were to exercise the powers referred to in Clause 11, then the Prime Minister would be directly exercising powers that are reposed by the people only on the President. Within the framework of the 1978 Constitution, the President cannot handover his executive power and permit it to be exercised by another body or person without his express permission or delegated authority. This would violate Article 3. Consequently, the Court concluded that such a change could not be made without the approval of the people at a referendum, or in other words, if the government wished to proceed without a referendum, then these aspects of Clause 11 must be struck down from the Nineteenth Amendment Bill. One of the most noteworthy aspects of this part of the determination was that the Court did not find the various other aspects of Clause 11, which introduced a requirement that the President has to act on the advice of the Prime Minister, as being an unconstitutional alienation of executive power by the President. These requirements of acting on advice quite substantially curtails the President’s discretion in appointing and dismissing Ministers in particular, but presumably in the Court’s view this does not affect the President’s ultimate authority.

The Right to Information

Counsel for one of the petitioners argued that Clause 2 of the Bill,[9] which sought to introduce a new right to information as Article 14A of the chapter on fundamental rights, would enable even foreigners to become beneficiaries of the right to information by virtue of the definition of a citizen given in Clause 2. However, the Court noted that the definition given to a ‘citizen’ is identical to the definition given in Article 121(1) of the constitution. The Attorney General also informed Court of the proposed the amendments the government undertook to bring at committee-stage. These amendments constricted the new right to information by restricting the application of the right from any information held by public authorities to covering only ‘information that is required for the exercise or protection of the citizens’ rights’ held by such authorities, and by adding contempt of court and parliamentary privilege as grounds of permissible limitations of the new right. In the Court’s view, Clause 2 was not inconsistent with any of the entrenched provisions of the constitution.

The Symbol of National Unity

Submissions were made with regard to Clause 5 of the Bill, in which proposed Article 33(1) provided that the President shall be the symbol of national unity. Counsel brought to the notice of Court that the origin of the national flag is based on a report of the National Flag Committee. The code for the use of the national flag, prepared by a Cabinet Subcommittee, states that when ‘each of us have to think more deeply of the National Flag and when we see our National Flag automatically our shoulders will strengthen, our hearts lift and our thoughts go to our motherland.’ The Court agreed that ‘the National Flag is the symbol of the unity of our People’ in that light determined that proposed Articled 33(1) in Clause 5 be deleted.

The Constitutional Council

Petitioners’ argument in respect of the proposal to re-establish the Constitutional Council pertained to both its compositions and functions. It was contended that the Constitutional Council with the proposed composition would impinge on the sovereignty of the people and that it would not be representative of the people. In terms of Clause 10, the Council would consist of the Prime Minister, the Speaker, the Leader of the Opposition, one person appointed by the President, five persons appointed by the President on the nomination of the Prime Minister and the Leader of the Opposition, and one person nominated by agreement of the majority of the Members of Parliament belonging to political parties other than to which the Prime Minister and the Leader of the Opposition belong. The President appoints the members who are not ex officio from among persons of eminence and integrity who have distinguished themselves in public or professional life, and are non-members of any political party. The Court noted that it had held In Re the Seventeenth Amendment to the Constitution[10] that the establishment of the Constitutional Council would not impinge on Article 3 or 4. Even though as the Court noted there is a restriction by the introduction of the Council in the exercise of the discretion vested in the President with regard to high appointments and the independent commissions, it held that such restrictions would not be an erosion of the executive power of the President in violation of Article 3 read with Article 4(b). Although the Court therefore found this proposed composition of the Constitutional Council to be constitutional, due to political hostility in Parliament to civil society members who would presumably be called upon to serve in the Council, the composition of the Council was changed at committee-stage of the Bill to reflect a political rather than a civil society majority. This potentially affects the depoliticising aims of the Nineteenth Amendment.[11]

The Court observed that the objective of the Constitutional Council is to impose safeguards in respect of the exercise of the President’s discretion and to ensure appointments to important offices in the executive, the judiciary, and the independent commissions are made correctly. It sets out a framework for which the President will exercise his duties pertaining to appointments. The President continues to be empowered to make the appointments of chairmen and members of the independent commissions. However, such appointments are to be made on the recommendation of the Council, which is to recommend fit and proper persons to such offices. Similarly, the President makes the appointments to key offices including the judges of superior courts, but in these cases, prior to the appointments his recommendations would have to be approved by the Council. It was also noted that the Constitutional Council would obtain the views of the Chief Justice, the Minister of Justice, the Attorney General, and the President of the Bar Association of Sri Lanka, in the discharge of its functions relating to the appointment of the judges of the Supreme Court and of the Court of Appeal. The Court stated that such a consultative process can ‘in no way be offensive to the exercise of the powers of appointment,’ but on the contrary would ‘enhance the quality of the appointments.’[12] For these reasons, provisions contained in Clause 10 were held not to violate any of the entrenched provisions. Again at committee-stage, however, political hostility to such a consultative process and especially the role of the Bar Association ensured that these provisions were removed from the Nineteenth Amendment.

Political Broadcasts

Clause 26 of the Bill sought to empower the new Election Commission significantly in respect of political broadcasts during election periods, including to issue guidelines to public and private broadcasters, and crucially, to enforce those guidelines and directions through the appointment of a Competent Authority to takeover the management of such political broadcasts.[13] Two private broadcasting companies challenged these provisions, and their counsel argued that the Election Commission should not be vested with such broad power to takeover a private broadcasting and telecasting station on the basis of various subjective factors. The state taking over its own media institutions may be permitted, but if it is extended to private media institutions, it was submitted that balanced and multi-perspective news and views would be prejudiced. Moreover, the clause did not set out the qualifications and the post that a person holds in order to be appointed as a Competent Authority and this would severely affect the rights of the citizens and rights of media institutions who may well be supervised and managed by persons not eligible for such an appointment.

The Court agreed with these submissions, holding that the Election Commission has been vested with unlimited power. The eligibility of its members and in particular the Competent Authority would be of paramount consideration in the public interest. The Court noted that there was no mechanism where an aggrieved citizen could challenge an appointment of a Competent Authority, and took the view that the functions of the Competent Authority would directly affect the franchise of the people, and the process of selecting representatives of the people, which in turn would directly concern the exercise of sovereignty. Accordingly, the Court stated Clause 26 violates Article 3 and has to be approved by at a referendum.

Audit Service Commission

The Supreme Court noted that proposed Article 153C in Clause 40 of the Bill did not permit the rules framed by the proposed Audit Service Commission to be placed before Parliament. The failure to do so would undermine the parliamentary control over the rule-making powers of the Commission. The Court suggested that this paragraph be amended to enable the Commission to place its rules before the Parliament for approval.

Order

Except for the matters discussed above, the Court was of the opinion no other aspect of the Bill required consideration in relation to their effect on the entrenched provisions of the constitution. Accordingly, the Supreme Court concluded that the Nineteenth Amendment Bill complied with the provisions of Article 82(1) (procedural requirements). Except for proposed Articles 42(3), 43(1), 43(3), 44(2), 44(3), and 44(5) in Clause 11 and proposed Article 104B(5)(c) in Clause 26, which were held to require a referendum in terms of Article 83, the Court held that the rest of the Nineteenth Amendment Bill could be passed by a two-thirds majority in Parliament (Article 82(5).

[1] The determination, reproduced in Annex VI of this volume, states at p.1 that thirteen petitions were presented, whereas only twelve applications are mentioned in the determination, as follows: S.D.No.04/2015 (Dayasiri, Petitioner), S.D.No.05/2015 (Perera, Petitioner), S.D.No.06/2015 (Gammanpila, Petitioner), S.D.No.07/2015 (Weerasekera, Petitioner), S.D.No.08/2015 (Ven. Bengamuwe Nalaka Thero, Petitioner), S.D.No.09/2015 (Wanigasekera, Petitioner), S.D.No.10/2015 (Ven. Matara Ananda Sagara Thero, Petitioner), S.D.No.14/2015 (Chandrasiri, Petitioner), S.D.No.15/2015 (Warnasinghe, Petitioner), S.D.No.16/2015 (MTV Chanel (Pvt.) Ltd, Petitioner), S.D.No.17/2015 (MBC Networks (Pvt.) Ltd, Petitioner), and S.D.No.19/2015 (Jayakodi, Petitioner).

[2] Parliamentary Debates 234(3), 9^th April 2015: Cols.261-284.

[3] See observations on these issues in the chapters by Niran Anketell and Aruni Jayakody and in the Editor’s Introduction to this volume.

[4] Relating to the time period within which an election shall be held if an election is determined to be void.

[5] With regard to matters concerning the executive, the Cabinet of Ministers, the appointment of Ministers and the ceiling on the number of Ministers.

[6] The Constitution of Sri Lanka (1978): Article 3: “In the Republic of Sri Lanka sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.”

Article 4 states: “The Sovereignty of the People shall be exercised and enjoyed in the following manner:

(a) Legislative power of the People shall be exercised by parliament, consisting of elected representatives of the people and by the people at a Referendum;

(b) Executive power of the People, including the defence shall be exercised by the President of the Republic elected by the people;

(c) Judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions established or recognised by the Constitution or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members wherein the judicial power of the people may be exercised directly by parliament according to law;

(d) Fundamental rights declared and recognised in the Constitution shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied; and

(e) Franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament, and at every Referendum by every citizen who has attained the age of eighteen years and who is qualified to be an elector provided his name is entered in the register of electors.”

[7] Dicta in In Re Nineteenth Amendment to the Constitution Bill (2002) SCSD 11/02-40/02 per Silva CJ and In Re the Thirteen Thirteenth Amendment to the Constitution Bill (1987) 2 SLR 312 at 341 per Wanasundera J cited with approval.

[8] “The President shall be responsible to Parliament for the exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security”

[9]14A(1): Every citizen shall have the right of access to any information held by:- (a) the State a Ministry or any Government Department or any statutory body established or created by or under any law; (b) any Ministry of a Province or any Government Department or any statutory body established or created by a statute of the Provincial Council; (c ) any local authority; and (d) any other person, being information that is required for the exercise or protection of the citizens’ rights.

(2) No restrictions shall be placed on the right declared and recognized by this Article, other than such restrictions prescribed by law as are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for prevention of disorder or crime, for the protection of health or morals and of the reputation or the rights of others, privacy, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the of the judiciary.

(3) In this Article, “citizen” includes a body whether incorporated or unincorporated, if not less than three – fourths of the members of such body are citizens.

[10] S.C. Determination 6/2001.

[11] See chapter by Dinesha Samararatne in this volume.

[12] Silva v Bandaranayake (1997) 1 SLR 93 at 95 per Mark Fernando J cited with approval.

[13] 104 B (5)(c) – Where the Sri Lanka Broadcasting Corporation (SLBC), Sri Lanka Rupavahini Corporation (SRC) or Independent Television Network (ITN) or any other broadcasting or telecasting enterprise owned or controlled by the State or the enterprise of every private broadcasting or telecasting operator, contravenes any guidelines issued by the Commission under sub-paragraph (a), Commission may appoint a Competent Authority by name or by office, who shall, with effect from the date of such appointment, take over the management of such SLBC, SRC or ITN or other broadcasting or telecasting enterprise owned or controlled by the State or the enterprise of such private broadcasting or telecasting operator, insofar as such management relates to all political broadcasts or any other broadcast, which in the opinion of the Commission impinge on the election, until the conclusion of the election, and the SLBC, SRC or ITN or other broadcasting or telecasting enterprise owned or controlled by the State or the enterprise of such private broadcasting or telecasting operator, shall not, during such period, discharge any function relating to such management which is taken over by the Competent Authority.

Chapter 11 | Executive Power after the Nineteenth Amendment: The Centre and the Provinces

Niran Anketell

The Nineteenth Amendment to the Constitution, eventually certified into law on 15^th May 2015, was in line with President Sirisena and the common opposition’s general campaign theme of promoting good governance and the rule of law. What was notable about that campaign was that it skirted the vexed question of the devolution of powers, choosing instead to maintain silence on the issue. The 100-day programme did not envisage any direct attempt to address devolution either. Even the Tamil National Alliance (TNA) found this strategy agreeable, on condition that a second slew of constitutional reform efforts once the 100-day programme was over would revert to providing due attention to the ‘national question.’ It was in this context that the Nineteenth Amendment was drafted. This essay considers whether, despite this contrived lack of interest in questions of devolution and autonomy, the Nineteenth Amendment – its text, the jurisprudence of the Supreme Court in the Court’s assessment of it, and its implementation – have any implications for devolution and power-sharing, particularly in respect of executive power. The tiered relationship between the President, the Governor, and the Chief Minister (with the Board of Ministers) characterises the constitutional scheme in respect of executive power at the provincial level. In this context, does the Nineteenth Amendment impact in any way on the nature of these interrelationships? Moreover, does the Supreme Court’s treatment, or non-treatment, of the ‘advice clauses’ in the draft Nineteenth Amendment, as well as the text of the Nineteenth Amendment, have any relevance for the ‘advice clause’ found in the Thirteenth Amendment? How may presidential decision-making power be constrained at the provincial level in the same manner as it is now constrained at the central level?

It is not the object of this essay to engage in a detailed study of the provisions of the Nineteenth Amendment concerning executive power. The final text has the effect of constraining presidential power by way of re-introducing the term limit; restricting the ability of the President to dissolve Parliament at will; reintroducing the Constitutional Council; limiting the scope of presidential immunity; and importantly, stipulating that the President’s choice in identifying Members of Parliament to sit on the Cabinet of Ministers is to be exercised on ‘the advice of the Prime Minister.’ These changes do not appear to affect the scheme and functioning of devolution in any direct way. The increased power vested in the Prime Minister over the Cabinet of Ministers by the Nineteenth Amendment would mean that provincial executive functionaries such as the Chief Minister would be forced to interact more directly with the Prime Minister and Cabinet, rather than merely with the President. But these are largely mediated by politics, and text of the amendment by itself certainly does not appear to influence centre and province relations in any material way.

The second, and far more interesting, question is whether the Supreme Court’s determination on the Nineteenth Amendment Bill as well as the final Nineteenth Amendment Act itself, have any implications – direct or otherwise – on the devolution of power. Before embarking on such an analysis, it is important to note that the final text of the amendment that found passage through Parliament was significantly different to the text initially gazetted. Further, the Attorney General informed the Supreme Court ahead of the commencement of hearings on the first day fixed for hearing challenges to the Nineteenth Amendment Bill that the government would move a number of substantive amendments to the Bill on the floor of the house of Parliament. The Court was invited to consider whether these amendments also involve any inconsistency with an entrenched provision. These amendments presented by the Attorney General included proposed Article 33A (2) and (3) which stipulated that, except with respect to the appointment of the Prime Minister ‘or as otherwise required by the Constitution’, the President shall act on the advice of the Prime Minister, and that while he may require the Prime Minister to reconsider his advice, he was ultimately bound by the decisions of Parliament or the Prime Minister as the case may be. These provisions would later be excluded from the Bill that eventually found passage through Parliament.

With respect to devolution, however, it is notable that the Thirteenth Amendment to the Constitution also contains two key advice clauses, in Article 154F(1) where the Governor is mandated to act on the advice of the Board of Ministers and Chief Minister, and in Item 1:3 in Appendix II of Schedule 9 of the Constitution relating to the disposition of state land.

A few introductory notes are warranted. First, the advice clause in proposed Article 33A(2) of the Bill was introduced through the set of revisions forwarded to the Court by the Attorney General, and did not feature in the gazetted Bill. Second, the Supreme Court determination does not make any specific reference to the advice clause in proposed Article 33A(2). Thus, some may claim that the Supreme Court only properly had before it the text of the gazetted version of the Bill, in which the advice clause from proposed Article 33A(2) of the Bill was absent, and that this means the Supreme Court never had opportunity to consider that advice clause. This, I argue, is untenable. What is not in dispute is that the Attorney General did bring to the notice of court a number of proposed revisions including the advice clause in proposed Article 33A(2) of the Bill. In terms of the practice of the Supreme Court when hearing Bill determinations, this was not irregular. In many such cases, suggested revisions and amendments are proposed, discussed, and considered by the Court. In fact, the Court’s determination alludes to some of these revisions pertaining to the right to information.[1] Further, the determination ends with the note that the judges have “considered the remaining provisions of the Bill” and that they “do not see any other matters that would require consideration by this court in terms of Article 83 of the Constitution.”[2] Thus, I claim that it reasonable to assume that, notwithstanding the absence of any specific treatment of the advice clause, the Supreme Court found that this particular advice was compatible with the entrenched clauses of the constitution.

The most notable advice clause found in the Sri Lankan constitution has continued to be that contained in Article 154F (1), introduced by the Thirteenth Amendment, which reads:

“[t]here shall be a Board of Ministers with the Chief Minister at the head and not more than four other Ministers to aid and advise the Governor of a Province in the exercise of his functions. The Governor shall, in the exercise of his functions, act in accordance with such advice, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.”

Notwithstanding this clause, which on its face appears to place real executive decision-making power in the Board of Ministers and Chief Minister, Chief Justice Sharvananda’s opinion in the Thirteenth Amendment Bill determination sought to limit the scope of the devolved powers. Reading into this provision the ultimate presidential control over decision-making at the provincial level, which would supersede the advice of the Board of Ministers, he wrote:

“[U]nder the Constitution the Governor as a representative of the President is required to act in his discretion in accordance with the instructions and directions of the President. Article 154F(2) mandates that the Governor’s discretion shall be on the President’s directions and that the decision of the Governor as to what is in his discretion shall be final and not be called in question in any court on the ground that he ought or ought not to have acted on his discretion. So long as the President retains, the power to give directions to the Governor regarding the exercise of his executive functions, and the Governor is bound by such directions superseding the advice of the Board of Ministers and where the failure of the Governor or Provincial Council to comply with or give effect to any directions given to the Governor or such Council by the President under Chapter XVII of the Constitution will entitle the President to hold that a situation has arisen in which the administration of the Province cannot be carried on in accordance with the provisions of the Constitution and take over the functions and powers of the Provincial Council (Article 154K and 154L), there can be no gainsaying the fact that the President remains supreme or sovereign in the executive field and the Provincial Council is only a body subordinate to him.”[3]

Thus, Chief Justice Sharvananda appears to rely on the supposed ouster clause in Article 154F(2).[4] Notably however, Justice Wanasundera, in his main dissenting judgment, disagreed with the Chief Justice’s reading of the advice clause, stating:

[I]n regard to the substantive Executive powers falling to the lot of the governor, these constitute decisions of the Board of Ministers which he is bound in law to accept and sanction. He has no choice and is given no discretion in the matter. The Chief Minister and the other Ministers are no doubt also appointed by him as even in this instance Article 154F(4) shows that where the party system operates and a party obtains a majority in the Provincial Council elections, the governor has no option but to appoint the leader of that political party as the Chief Minister and his nominees as the other Ministers. These appointments are in fact non-governmental appointments and the Governor merely sanctions what the law has provided for. The Legislature cannot exercise the Executive power either. So in reality, the substantive Executive power exercised in a Provincial Council emanates and is created from below and does not in fact constitute a devolution of power coming from above from the President.”[5]

From a simple textual reading, the effect of Article 154F (2) appears to be that while the situations in which the Governor is not bound by the advice of the Board of Ministers is limited to those in which the constitution requires him to exercise his discretion, the Governor’s discretion in determining whether the constitution requires him to exercise his own discretion is final and cannot be questioned in a court of law. Thus the power of the Board of Ministers to bind the Governor through their advice is not justiciable as against the Governor. Because Article 154F(2) requires the Governor to exercise his discretion on the President’s directions, Chief Justice Sharvananda was led to the conclusion that the President’s directions to the Governor which superseded the advice of the Board of Ministers would be legally binding, hence warranting action in terms of Article 154 (K) and (L) if the provincial administration did not comply with the President’s directions. Justice Wanasundera’s view, however, appears to have been that the text of Article 154F(1) required the Governor to act on the advice of the Board of Ministers, regardless of whether or not the Governor’s decisions could be challenged in a court of law.

To date – unsurprisingly, because of the ouster clause in Article 154F(2) – the Supreme Court has not clarified the position with respect to the advice clause. Is the Governor legally bound to give effect to the advice of the Board of Ministers, or is he in all circumstances bound by the directions of the President?

The Supreme Court’s Nineteenth Amendment Bill determination is of use in interpreting the Thirteenth Amendment’s ouster clause, because it relates to the question of whether or not the vesting of actual executive power in the Prime Minister through the advice clause in the Nineteenth Amendment involved any alienation of executive powers vested with the President. If this were not the case, and the advice clause in Article 33A (2) and (3) were to be assumed legal – as it must, given the Nineteenth Amendment determination – then presumably there would no bar to the genuine divestiture of real executive power from the President to the Board of Ministers of the Province. In short, if the retention of nominal decision-making authority in the President or Governor, as the case may be, saves an advice clause from incompatibility with a constitutional bar to alienation of power, then neither Article 4(b) read with Article 3, nor Article 2, could stand in the way of the transfer of power from the President or his agent the Governor to the Prime Minister and Board of Ministers, respectively, through advice clauses binding the President or Governor. This is why the question of whether or not the Supreme Court considered and cleared the advice clause in proposed Article 33A (2) and (3) is of such vital importance.

There is yet another way, in this case the text of the Nineteenth Amendment Act, could affect the practice of devolution. As I have discussed earlier, the Governor’s discretion in determining the limits of his own discretion – his compétence de la competence – is the subject of an ouster clause. However, his discretion is always to be exercised on the President’s directions. Thus, the effective decision-maker in respect of the Governor’s discretion is the President and not the Governor. Nevertheless, the President is not covered by the ouster clause in Article 154F(2). Thus, presidential directions to the Governor are not beyond judicial review. Despite this, the ouster clause in Article 35 of the constitution preventing the initiation of suits against the President closed the door to direct challenge of such presidential directions.[6] That was until the passage of the Nineteenth Amendment. The proviso to Article 35(1) introduced by the Nineteenth Amendment now permits the initiation of fundamental rights petitions to the Supreme Court against the President. As such, there is no reason as to why presidential directions to the Governor – either to exercise his discretion on a certain subject notwithstanding the advice of the Board of Ministers, or to exercise his discretion in some other manner – cannot be subjected to judicial review. Such a challenge would not attract the ouster clause in Article 154F(2) because the decision-maker being challenged is the President and not the Governor.

The resulting position in view of this analysis is that the Nineteenth Amendment determination by the Supreme Court, as well as the restrictions on the scope of presidential immunity in the Nineteenth Amendment, appear to have some implications for the law concerning the devolution of power in Sri Lanka under the Thirteenth Amendment. The Nineteenth Amendment process – perhaps entirely unwittingly – has altered the way in which the Thirteenth Amendment scheme could be implemented. While these observations may well become academic in light of the plans for a new constitution, or at least major constitutional amendments, that would as promised embody a new devolution settlement that goes beyond the Thirteenth Amendment, the Nineteenth Amendment also highlights the critical importance of such modifications.

The Nineteenth Amendment’s imposition of procedural and substantive limitations on presidential power in respect of powers reserved to the centre was supported unanimously in Parliament and has come to be viewed as essential to strengthening Sri Lanka’s democracy. The current constitutional reform process is also expected to further weaken, if not abolish outright, the presidential system of government. Despite this, and barring the implications on devolution discussed in this essay, the constitution does not constrain presidential and gubernatorial decision-making powers in the Province in the same way. The result is an imbalance in the system, due to the constriction of presidential powers at the centre while simultaneously perpetuating presidential power over the provincial government. This situation is clearly anomalous and must swiftly be addressed. Devolution of powers in the context of Sri Lanka is warranted both as tool through which to accommodate the aspiration of the Tamil and Muslim people to a greater share of state power than they now enjoy, and to deepen Sri Lanka’s democracy by diffusing decision-making power more evenly throughout the country. A stronger central executive at the provincial level than there is at the central level is therefore untenable and perverse.

[1] See In Re Nineteenth Amendment to the Constitution, SC SD 04/2015-19/2015, SC Minutes 9^th April 2015: pp.13-14.

[2] Ibid: p.17.

[3] In re the Thirteenth Amendment to the Constitution and the Provincial Councils Bill (1987) 2 SLR 312: p.322.

[4] Article 154F(2) reads: “If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question in any Court on the ground that he ought or ought not have acted on his discretion. The exercise of the Governor’s discretion shall be on the President’s directions.”

[5] In re the Thirteenth Amendment to the Constitution and the Provincial Councils Bill (1987) 2 SLR 312: p.359.

[6] The Supreme Court has consistently read Article 35 in a way that does not exclude collateral challenges against presidential acts, provided the President is not a necessary party in such proceedings. In the case of presidential directions to the Governor, however, it would have been inconceivable as to how a collateral challenge against a presidential act designed to escape the Article 35 ouster could be framed in such a way as to also avoid impugning the Governor’s acts and decisions, which are in any event ousted from the Court’s jurisdiction by Article 154F(2). See N. Anketell, ‘The Executive Presidency and Immunity from Suit: Article 35 as Outlier’ in A. Welikala (Ed.) (2015) Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects (Colombo: Centre for Policy Alternatives): Ch.5.