Losing a Paradise We Never Had?

Dinesha Samararatne

University of Colombo

Editors’ Note: This text is a cross-post from Groundviews and was published on 3 November 2018. The original text can be viewed here.

Asanga Welikala titled the preliminary note that he published on October 27 ‘Paradise Lost’. I agree with Welikala’s analysis and his subsequent publicly stated views as well. However, I do not think that events since October 26 is a case of ‘Paradise Lost’. It is not a case of Sri Lanka losing its credibility as a democracy. Rather, it seems to me that these events bring home the reality that our democratisation has always been partial, and in certain moments in its history, quite fragile.

There is no doubt that President Sirisena’s appointment of MP Mahinda Rajapaksa as a Prime Minister on October 26 was contrary to the Constitution. However, there is also no doubt that the calculated, premeditated and deliberate act of violating the Constitution by those wielding executive power is not new in Sri Lanka. The difference is a matter of degree. For those who were surprised and even disappointed by these acts of our President, it is best to recall that prior to breaking ranks with the then President Rajapaksa, President Sirisena was a central figure in the then government, providing active political support to its work. His decision, and the decision of many members of the Sri Lanka Freedom Party (SLFP) to break ranks with the then President Rajapaksa seemed bold, decisive, and a point of no return. However, there was minimal information in the public domain as to the reasons for this breaking of ranks, except for indications of a possible turn of heart. President Sirisena’s inaugural speech as President, his leadership and interventions particularly at the early stages of his presidency suggested that perhaps at long last Sri Lanka had a statesman who was committed to leading the State in the right direction. However, unresolved questions regarding the factors that influenced the President’s turn of heart remained.

Constitutionality of the Appointment

From a constitutional point of view, the only option that was available for replacing the Prime Minister was to successfully adopt a no-confidence motion against him in Parliament. Otherwise the Prime Minister should resign or cease to be a Member of Parliament. The mere withdrawal of the SLFP, even if informed in writing to the Speaker, does not result in the dissolution of the Cabinet. Moreover, even if the Cabinet were to be dissolved, the provisions that provide for the removal of the Prime Minister are specific therefore there is no automatic loss of office for the bearer of that office.

It is being argued that because the President is vested with the authority to appoint a person commanding ‘in his opinion’ the confidence of the Parliament, that once such opinion changes, the President has the power to remove that person from office. This, in fact, was the constitutional position prior to the 19th Amendment to the Constitution. However, the 19thAmendment has modified the grounds of removal of the Prime Minister and specifically removed the provision which previously authorised the President to remove him from office. It is further being argued that the inclusion of the ‘removal from office’ in the Sinhala version of the Constitution in Art 48 means that the power of removal of the Prime Minister should be read into the Constitution. Furthermore, it is argued that the Sinhala version of the Constitution prevails. It must be noted that unlike in legislation, the Constitution does not state that the Sinhala version of the Constitution will prevail over the other two. In fact, even the Tamil version is identical to the Sinhala version and includes the phrase ‘removal from office’. However, given that the Constitution includes a specific clause, that is to say Art 46(2) which specifies the grounds on which the Prime Minister ceases to hold office, these arguments are not tenable.

Soon after the removal of the Prime Minister, the President prorogued Parliament. Instead of seeking to attract constitutionality to his blatant violation of the Constitution, at least after the fact, this decision has effectively prevented Parliament from determining for itself whether or not the duly appointed Prime Minister has the confidence of the majority. Although this decision is within the powers of the President, it has been pointed out that as per Parliamentary convention – it should have been done in consultation with the Speaker. Sri Lanka watches as MPs crossover, claiming a host of reasons for doing so, to support and endorse this constitutional coup. It is clear that Parliament was prorogued to buy time to carry out this unacceptable act of luring MPs to crossover.

This is why the events since Friday are being termed a “constitutional coup” and a “constitutional crisis”. The President has exceeded his authority under the Constitution, unlawfully attempted to remove the Prime Minister from office and taken away the independence of Parliament to resolve this crisis. The appointment of a ‘new’ cabinet is equally unconstitutional as the current Cabinet has not been dissolved. After the 19th Amendment, the President appoints the Cabinet on the advice of the Prime Minister. The President’s subsequent actions therefore have compounded the constitutional crisis.

Of Violations of the Constitution

This is not the first time that the text of the Constitution or its spirit has been blatantly disregarded or violated by those holding office under it. Given the current context, it will most likely also not be the last. Some of the more obvious instances have been the subject of some public debate and discussion. For instance, from 2005 to 2010 the Constitutional Council was not constituted. According to the 17th Amendment to the Constitution, appointments to several high offices and independent commissions have to be vetted by the Constitutional Council. The President made appointments to the higher judiciary as well as to independent commissions regardless.

Other instances of complete disregard for and violation of the Constitution have not been ‘so obvious’. The systemic violation of any person’s right to be free from cruel, inhuman or degrading treatment or punishment is one such example. The incidence of torture in Sri Lanka and its serious nature has been documented over the years. Despite a constitutional guarantee and the availability of a remedy before the highest court of the land, this problem persists. These obvious and not so obvious instances of violation or blatant disregard of the Constitution contribute in definitive ways to the maintenance of a degenerative constitutional culture in Sri Lanka.

The internal contradictions of the Constitution further undermine it from within. For instance, although the exclusive power of interpreting the Constitution is vested with the Supreme Court, the same Constitution prohibits the Court from reviewing the constitutionality of a law once it has been passed in Parliament. Only Bills can be challenged for their constitutionality in Sri Lanka. The Constitution recognises that all persons have the right to equality and are equal before the law. In the same chapter, the Constitution further provides that all written and unwritten laws that are not consistent with any of the fundamental rights shall continue to be valid. Sri Lanka’s neighbour India on the contrary, provides the exact opposite. It states that any law that is inconsistent with its fundamental rights shall not be valid.

(Un)Constitutionality and (Un)Constitutional Practice

Constitutional governance is not only about the text of the constitution but also its spirit. Moreover, effective constitutional governance requires a constitutional culture – one in which there is widespread appreciation for being governed under a constitution that is the supreme law of that state. In modern societies, constitutions are meant to be the supreme law under which all public power is exercised. In making and adopting constitutions, states are required to do so in accordance with constitutionalism. This involves respect for certain basic principles. One is that public power should be distributed among the Executive, Legislative and Judicial arms of the state in a manner that ensures independence, effectiveness but also accountability. Another is that fundamental rights of individuals and groups should ideally be protected through a constitution. Society comes together as a democracy and temporarily vests its sovereign powers with governments so that governments may work towards their best interests. Where minorities (whether linguistic, ethnic, religious or any other) are affected by decisions of governments, they should have access to an independent and competent judiciary that will grant them an appropriate remedy.

It is according to these fundamental principles that the text of a Constitution should be interpreted. Governments can, and sometimes do, introduce constitutional provisions that are in the interest of the government and not the governed. However, the obligation of governments to act according to the Constitution includes not only an obligation to respect the provisions of the Constitution, but also the spirit of constitutional governance itself. Successive governments in Sri Lanka have failed in this regard. The impeachment of Chief Justice Shirani Bandaranayake is a case in point. The Constitution states that the procedure for impeachment shall be provided for by law or by standing orders. Under President Jayawardene, an Executive that was impatient to impeach the then Chief Justice, chose to adopt a standing order for that purpose. In 2012-13 the Government followed that same standing order. When the Court of Appeal quashed the Parliamentary Select Committee report which found the then Chief Justice guilty of some of the charges against her, Parliament ignored that determination and proceeded with the impeachment. Parliament was of the view that the Court of Appeal had no jurisdiction to review its proceedings. In the following year, Sri Lanka’s Supreme Court overruled the determination of the Court of Appeal. In impeaching Chief Justice Bandaranayake, the Parliament failed to adopt a separate motion requesting the President to impeach the Chief Justice, as is required under the Constitution. It adopted the same resolution that it had passed initially in which it proposed the appointment of a Select Committee for determining the charges against her. Subsequently another Chief Justice was appointed.

Soon after President Sirisena was appointed, a letter was dispatched to Chief Justice Bandaranayake informing her that she continues to function as Chief Justice, and requested her to resume office. Another letter was dispatched to Chief Justice Mohan Pieris informing him that his appointment was not constitutional due to the procedural flaw in the impeachment of Chief Justice Bandaranayake. These two letters too were sent on a Friday, in the afternoon. The nation watched, as Chief Justice Bandaranayake walked back into her office in Hulftsdorp to resume her position. The actions of the Government in 2015 may have been technically within the Constitution but did not necessarily come within the spirit of it. The office of the Chief Justice is the highest judicial office and all actions within that office have serious implications for the rule of law. It was a moment in which broader considerations should have been taken out of in determining the best course of action.

Another case in point would be the Committee Stage amendments of Bills. The Nineteenth Amendment Bill was challenged before the Supreme Court and the Government gave an undertaking to Court to revise the Bill to ensure its constitutionality. At the Committee Stage of that Bill however, several additional changes were made to the Bill. While none of these changes affected the entrenched clauses of the Constitution, they were nevertheless of a substantial nature. In the Bill that was considered by the Court, the Constitutional Council was to comprise of 3 MPs and 7 individuals from civil society. At Committee Stage the composition was switched to include 3 individuals from civil society and 7 MPs. The quorum of the Council is 5. In effect appointments by the President to those high offices and independent commissions have to be vetted primarily by representatives of Parliament and not by non-partisan civil society members as was originally envisaged.

The use of Committee Stage amendments to radically transform the contents of a Bill was taken to an extreme point with the Amendment to the Provincial Councils Election Act in 2017. The Bill that was gazetted sought to introduce a quota for women in provincial councils and the same was subject to review by the Supreme Court. At the Committee Stage however, this Bill was expanded to include electoral reforms to the election of provincial councils. The expanded Bill was passed by Parliament. Several parties went to Court challenging this process, but the Court refused to determine those petitions on the basis that it had no authority to review Committee stage amendments to Bills. The introduction of a new electoral system was subsequently used by the Government to justify its postponement of elections to Provincial Councils.

Constitutional Culture(s)

These practices have defined and nurtured a Sri Lankan constitutional culture in which those holding office under the Constitution employ those powers for purposes that are contrary to the idea of constitutionalism. Sri Lanka’s constitutional history demonstrates that constitutions have often been viewed as mere documents that can be changed in the interest of political expediency.

Constitutionalism on the other hand, requires that the governors and the governed alike subject their political passions and aspirations to the text and spirit of the Constitution. Of course, Sri Lanka is not the only country in which blatant disregard and violations of the Constitution occur. The desire to abuse power, it has been repeatedly said, is universal. The more important question is this – is our dominant constitutional culture able to correct itself? Does it have any forces that can compel deviants to at least eventually restore the rule of law and willingly come under its force? What are the possibilities that a more progressive constitutional culture will be able to push back on this particular dominant constitutional culture?

Many were of the view that 2015 was a turning point in Sri Lanka’s democracy. The post-2015 legislative and institutional reform agenda did contribute at least in part to the restoration of the rule of law, the rebuilding of democracy and the restoration of the independence of public institutions. There are many examples that can be cited to justify this point of view. With the re-establishment of the Constitutional Council, appointments to high office and to the independent commissions were made in a transparent and impartial manner. The enactment of the Right to Information Act was a catalyst in promoting openness and accountability at many levels of government action. The Audit Act was anticipated to have a similar impact on state administration. The revision of the system of taxation, return of land acquired during the war to its owners, the establishment of the Office of Missing Persons, the enactment of the Reparations Office – though not ideal – did bring in relative improvements to an ailing post-war democracy.

The public consultations for constitution-making and with regard to mechanisms for reconciliation were pioneering exercises in public consultation. The Presidential Commission of Inquiry into the Central Bank Bond issue, the arrest of the Presidential Chief of Staff for an alleged act of bribery, and progress in some of the criminal cases were instances in which it seemed that the rule of law was gaining ground and would check the excesses of those in power. These developments however were accompanied by several other events that were undemocratic – such as the postponement of elections to the Local Authorities and Provincial Councils, and the lack of transparency surrounding decisions regarding the constitution-making process and management of the economy.

In the midst of these developments, predictably, the Unity Government began to fall apart. The fragile union of the SLFP with the UNP was undermined from within and without. It is against this backdrop that these recent events unfolded.

A Threadbare and Fragile Democracy?

As these events unfold, the resilience of Sri Lanka’s democracy is being tested and its nature is being questioned. Some have taken the view that Sri Lanka has had a strong democracy since the 1930s and that Sri Lankans have been skilled at changing governments through democratic processes. The elections of 2015 were supposed to be evidence of this. As of October 26, 2018, even that cannot be said of Sri Lanka’s democracy anymore. Regular, free and fair elections are an aspect of procedural democracy described also as ‘thin’ democracy. Substantive democracy involves the protection of fundamental rights, respect for diversity and dissent and the guarantee of the rule of law. Successive governments in Sri Lanka have often failed to guarantee substantive democracy.

Sri Lanka has been described as a model democracy which introduced universal franchise as early as 1931 and in which political independence from the British was achieved peacefully. Such observations do not take into account the manner in which ethno-nationalisms, patriarchy and patronage have persistently shaped Sri Lanka’s constitutional culture. For instance, the majority of ‘native’ representatives at the time, opposed the introduction of universal franchise. The Soulbury Constitution provided a guarantee against discrimination of minorities by legislation. It is under this very same Constitution that the two laws which have caused direct discrimination of Tamil minorities were enacted – the amendment to the Parliamentary Elections Act and the Official Languages Act (Sinhala Only Act). More recently, the 17thAmendment to the Constitution established a Constitutional Council in 2001. It functioned only up to 2005. It was reconstituted with a different composition in 2015 after the 19th Amendment to the Constitution.

Sri Lanka’s democratisation process is perhaps not as rigorous or entrenched as it is thought to be. This is evident in the fact that Sri Lanka’s democracy has rarely demonstrated the ability to learn from its mistakes. Any improvements to its democratisation and the rule of law have often been temporary. Sri Lanka seems to be going in a vicious cycle, and each time a cycle is completed, its democracy and its rule of law plunges deeper and deeper into crisis mode. Our collective experience of violence since the 1950s and declarations of emergency over the last three decades too have contributed in significant ways to this state of affairs.

The events of 26th October and the social or political legitimacy with which decisions were made, the manner in which the media has been partial to the decisions of the President and the absence of critical debate on these developments are indicative of the kind of democracy that is in operation in Sri Lanka at present. The disregard for constitutional provisions and constitutionalism is not new, but the degree to which it is being disregarded perhaps is. But any serious attempt at understanding the present crisis must be contextualised, including an accounting for past unconstitutional practices of successive governments and in particular the modus operandi of the Government since 2015, and its impact on the rule of law and constitutionalism in Sri Lanka.

The present crisis, as grave as it is, will be resolved eventually. Parliament will be convened and a floor test will determine the way forward. Alternatively, political force would prevail over the constitution and the President’s actions would remain unchallenged. The deeper crisis – the crisis of Sri Lanka’s democracy, the degeneration of its rule of law and the entrenchment of an authoritarian culture – however, will most likely only get worse.

Editor’s Note: Also read, “Paradise Lost? Preliminary Notes on a Constitutional Coup” and “The Constitutional Crisis: A Round Up“

Suggested Citation: Please cite the original Groundviews article.