Symposium: Sri Lanka: Democratic Decay or Democratic Demolition?

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Dinithi De Alwis

Melbourne Law School

On the night of October 27th Sri Lanka became plagued by a constitutional crisis, when it was announced that President Maithripala Sirisena had removed Ranil Wickremesinghe as Prime Minister and sworn in former President Mahinda Rajapaksa as the new PM.

Since then, many exceptional scholars and lawyers have highlighted the fundamental unconstitutionality of President Sirisena’s actions. Ordinary citizens have taken to the streets to demand that their democracy, votes, and human rights be respected. However, somehow these actions are also being promoted as constitutional and necessary to strengthen Sri Lanka’s democracy.

We must remember that the man being touted as the new Prime Minister is no stranger to this art of providing an illusion of democracy, while cloaking what is deeply undemocratic. Regardless of its legitimacy, Rajapaksa’s resurgence into a position of power threatens to gravely mutilate a democracy already fragile after years of abuse.

In fact, one must only look to Rajapaksa’s post-war rule (following defeat of the Tamil Tigers) during 2009-2015 to understand that it is characteristically ‘Rajapaksian’ to hijack democracy while still maintaining a veneer of democratic legitimacy. The masterplan Rajapaksa executed during this time consisted of both legal changes and explicit manipulations of practice, to deliberately undermine democratic institutions

First, Rajapaksa has mastered manipulating constitutional procedures to erase safeguards that serve to protect democracy.

In 2010, Rajapaksa enacted the 18th Amendment of the Constitution and abolished two important safeguards for Sri Lanka’s democracy: namely, the two-term limit for Presidents and the Constitutional Council, which limited the President’s power to appoint key positions. The removal of these checks gave the President unfettered power to continue for an unlimited number of terms and to appoint key public officers, including the Attorney General and the judges of the Court of Appeal and the Supreme Court. The constitutional amendment was a clear tool to help Rajapaksa construct a more authoritarian, virtually unchecked executive power and a significantly less democratic order.

Second, Rajapaksa has mastered creating mechanisms to remove those whose role is to act on a check on his power.

In 2013 the first female Chief Justice, Shirani Bandaranayake, was impeached. Tensions between the executive and Bandaranayke reached its pinnacle when the Supreme Court ruled that the Government’s desire to create a Divinegume (‘improving lives’) development plan required referral to the Provincial Councils for their assent. On November 2012, members of the Governing United People’s Freedom Alliance (UPFA) provided the Speaker with a resolution accusing the Chief Justice of fourteen allegations of alleged misconduct signed by 177 members of Parliament.

Seven members of the Government, along with four members from opposing parties, were then appointed to form a Parliamentary Select Committee (PSC) to pursue the respective allegations. During the proceedings there existed no clarity about procedure and due process. The PSC eventually submitted a report finding the Chief Justice guilty of three of the charges contained in the impeachment motion. On the 13th of January 2013, Rajapaksa delivered a proclamation removing Bandaranayke from office. This impeachment crisis further prolonged the trend towards unfettered and irregular exercise of executive power without any regard for due process, the judiciary and the constitution. Two days later, Mohan Peiris, former Attorney General and, at the time, a legal advisor to the Cabinet and to the Rajapaksa family, was sworn in as Chief Justice, demonstrating Rajapaksa’s desire to elect someone who would beckon to the power of the president, rather than question it.

The impeachment of the Chief Justice completed the ‘constitutional coup’ which had begun with the 18th amendment. Both instances involved facets of a democracy central to regulating Rajapaksa’s control.

Third, Rajapaksa has mastered centralising power through dynastic rule.

During his time as President Rajapaksa offered lucrative government positions to his family members, both immediate and distant, to erode the checks on his power and to ensure that he faced minimal dissent. To begin with, Rajapaksa himself besides being president was also the minister of finance and planning, ports and highways, law and order, and minster for defense and urban development. These combined portfolios allowed 78 government institutions to be directly under his control.

His brothers Basil and Gotabhaya Rajapaksa also maintained positions of power. Notably, Rajapaksa’s older brother, Chamal was speaker of Parliament and controlled the legislative assembly. If there was ever to be an attempt to impeach the President, Chamal could block it. The Rajapaksa brothers, collectively at one stage controlled 60 to 70 per cent of the country’s entire budget through their portfolios.

Such personalised governance constituted a secretive operating culture within Rajapaksa’s executive branch. It allowed Rajapaksa to firstly concentrate power in the hands of his family and then monopolise and entrench his own presidential power, with minimal resistance and transparency. This made legitimate institutional actors vital to a democracy not only redundant but also, dangerous in their capacity to give legitimacy to the enveloping of democratic organs.

Fourthly, Rajapaksa has mastered tampering with the voting process.

Various tampering techniques executed under the Rajapaksa regime during the 2010 election constituted a deliberate weakening of democracy. Rajapaksa’s was marred by rigging, violence, and intimidation. Despite this, he resorted to this simplistic idea that elections equate to democracy, despite the violent and corrupt way in which they occurred. Rajapaksa blended quintessentially democratic concepts with authoritarianism to establish validity in his rule.

Finally, Rajapaksa has mastered how to use his power to substantially suppress the press.

Rajapaksa weaponised the Constitution and the surrounding legal framework in this area to not only heavily regulate the media, but also to threaten and attack media personnel. For instance, during the 2010 election, Rajapaksa banned numerous electronic media organisations and there have been many attacks on media officers and personnel who were critical of the Rajapaksa regime. Globally, Sri Lanka was one of the most dangerous locations for journalists and harassment and attacks against them, often without any response or investigation from the Government.

Journalists also went missing and were murdered during Rajapaksa’s presidency. Amongst these, was the high-profile assassination of Sunday leader journalist, Lasantha Wickrematunge. Lasantha was a well-known anti-establishment editor who was killed while driving to work in January 2009. Through Rajapaksa’s rule over the media, he attacked and eroded a vital organ of democracy, with both bloodshed and the law.

In 2015, the people voted to oust this Rajapaksian style authoritarian rule and the blatant disrespect for democracy which he and all those involved in his reign symbolised.

In 2018, their President is now claiming that this very individual is their Prime Minister.

During Rajapaksa’s Presidency, democracy was decaying at a rapid rate. Today, the unconstitutional appointment of Rajapaksa and his current political marriage to President Sirisena threatens to trigger a demise of Sri Lanka’s democracy.

We must not forget the type of leader Rajapaksa is.

A leader who rules without any regard for democracy.

Dinithi De Alwis is a J.D. student at Melbourne Law School. This post draws on a recent paper on democratic decay under Prime Minister Rajapaksa from 2009-2015, on the course 'Understanding Democratic Decay Worldwide' at Melbourne Law School, and a shorter article published on Groundviews on 30 July 2018, on 'Democratic Decay: Examining Sri Lanka Under the Rajapaksa Government'.

Suggested citation: Dinithi De Alwis, 'Sri Lanka: Democratic Decay or Democratic Demolition' IACL-AIDC Blog (9 November 2018)