Drawing and modelling Sri Lanka's tryst with democracy

Asanga's Note

Introduction

This note outlines the main features of the constitutional structure of the Sri Lankan state, in the context of key historical and political dynamics that shaped its form and continues to influence its operation and reform. While the idea of the state has an extremely long, interesting and contested history in the island, the focus here is on the republican period, i.e., since 1972. The two republican constitutions seem radically different from each other in terms of institutional form: the first was parliamentary; the second is presidential. These differences between the two constitutions are important, but also and perhaps more important are the deeper continuities in the character of the state. In this sense, the most important constitutional concept of the republican order is the idea of the unitary nation-state.

This is a compound concept that brings together two distinct unitary discourses together. The state is unitary in terms of centralising political power and legal authority in central institutions, which means that notwithstanding a measure of provincial devolution, ultimate power and authority continues to rest with the state-wide institutions of Parliament, the executive Presidency and the Supreme Court. It is also unitary in terms of national identity: there is only one nation, or people, in Sri Lanka, and there is no recognition of multiple nationalities as constituting the state, even though a distinctive nationality demand has been asserted by the Sri Lankan Tamils throughout the republican period.

The main concern here is the legal constitution, i.e., the two legal instruments known respectively as The Constitution of the Republic of Sri Lanka (1972) and The Constitution of the Democratic Socialist Republic of Sri Lanka (1978) that have provided the written basis of government from 1972 onwards. In order to understand the legal constitution in context, however, appropriate reference will be made to the historical and political dynamics that have determined its creation and inform its implementation and change. The story begins in the late 1960s, when moves to establish a republic under a new constitution got underway in earnest.

The Constitutional Topography of Sri Lanka

From the mid-1960s, the idea that Ceylon should cease being a dominion and should become a republic was gathering pace. It was mainly driven by the alliance between the Old Left parties and the nationalist Sri Lanka Freedom Party (SLFP), although the United National Party (UNP) as well as the Federal Party (FP) also supported the republican ideal. Known as the Samagi Peramuna or the United Front (UF), this coalition won a landslide victory in the general elections of 1970. This mandate was used to set up a Constituent Assembly to draft and enact a constitution for a new state to be known as the Republic of Sri Lanka. While the UF had a two-thirds majority and therefore the necessary parliamentary representation to repeal and replace the independence constitution through the established procedure, it chose instead the Constituent Assembly mechanism as the constitution drafting body so as to register a complete break with the colonial past.

There is more than one reason as to why the status quo was considered unacceptable and why the idea of a republic captured the public imagination. This was the height of the era of decolonisation when across the world Western Empires were in retreat and new independent states were being created. Third World nationalism and anti-imperialism were the order of the day. Ceylon’s independence, negotiated through a gentleman’s agreement, had preserved the British monarchy as the head of state. It had also preserved the Privy Council in London as the final court of appeal. There had been no mass mobilisation, no emotional break, to signify the independent self-government that Ceylon had achieved in 1948. For many Leftists and nationalists, this was a hollow achievement. Real independence for them required the severance of these surviving ties to the imperial power. These were the sentiments that lay at the heart of the republican movement, but despite an overarching consensus on the goal, the political forces that were at play had different reasons and motivations for supporting it.

In recent ex-colonies in this period, decolonisation had created new states as legal entities. But in many of them, there was still no coherent conception of nationhood to bind what were often highly pluralistic communities living within the territorial boundaries of the state together into one overarching political and cultural community. They were therefore most often ‘nations of intent’ and not ‘nations in practice.’ It was thus widely understood that the major task of newly independent states was to engage in a process of ‘nation-building’ so as to ensure the unity of the state through building a meaningful community to which individuals and groups can offer allegiance. Nation-building was also seen as a vital element of the process of political modernity that the new nation-states must undergo, in the same way that European nation-states had been constructed several generations earlier. Thus ‘Ceylon’ had been created legally in 1948, but the ‘Ceylonese’ were still to be politically created out of various ethnic and religious collective identities, in much the same way that Massimo d’Azeglio had declared upon the unification of Italy that ‘Italy is made; now we must make Italians.’ This notion of post-colonial nation-building as the construction of a modern, civic, political community, however, was undermined from the very outset by political mobilisations around ethno-cultural conceptions of ‘national’ identity.

For the Sinhala-Buddhist nationalists, independence had not brought the resurrection of the pre-colonial order (or more precisely, their conception of it) that they had hoped for. Not for them the modernist ideal of ‘Ceylonese’ nationhood based on rights and equality and the rejection of ethnicity as the basis of unity. Their ideal of the post-colonial state was one in which the Sinhalese and the Buddhists would be restored to their ownership of the island, which as ordained in the Mahavamsa and other historical chronicles, must be both a Sihaladeepa as well as a Dhammadeepa. The Sinhala language may have been given a privileged status 1958, but Buddhism still did not enjoy either a foremost constitutional status or state patronage. Sinhala-Buddhist nationalists widely believed that Ceylon was still dominated by a deracinated elite that was subject to the inordinate influence of minorities and Western capital and culture. The opportunity to create a republican state therefore was an opportunity to instantiate the primacy of Sinhalese, Buddhism, and the encompassing and hierarchical old monarchical order, rearticulated as the unitary state. For some at least within this worldview, this was also an opportunity to put the Tamils, increasingly making impertinent demands for linguistic equality and federal autonomy, firmly in their place. They saw in minority protections, such as Section 29 of the independence constitution and appeals to the Privy Council, illegitimate fetters on the democratic will of the majority.

The Sri Lankan Tamils on the other had a rather different view of the country. They had considered themselves together with the Sinhalese as one of the two founding peoples of the polity, with a long presence and distinctive culture based on the Tamil language in the island. But the introduction of the universal franchise and territorial democracy had not merely made them into yet another minority, but the rise of Sinhala-Buddhist nationalism had also rendered them into the ‘Other’ or principal opponent of the Sinhala-Buddhist state building project. Giving up hope for any kind of equal partnership with the Sinhalese, they had soon after independence demanded federal self-government for Tamil majority areas in the north and east, on the basis that the Tamils were a nation with a traditional homeland, entitled to the right to self-determination. By the late 1960s, Tamil nationalists were supportive of establishing a republic, provided that it was a federal republic, which gave them autonomy within the Ceylonese state.

Thus, aside from a very rudimentary consensus that all British constitutional connections must be terminated, the approach to republicanism was marked by fundamental divisions between the major political forces in the island as to what the form and content of the future republic should be. For some it was a logical step in furthering the process of modernity, with the aim of a ‘Lankan’ nation transcending ethnic and religious cleavages of the past. For the majority ethnonationalists, it was to signal the restoration of their lost primacy. The minority ethnonationalists hoped it would give them territorial self-government. None of these visions were easily compatible with each other, and although such contradictory visions of the polity are far from unusual in plural societies, it did require a republican constitution-making process that could negotiate, compromise and reconcile these competing claims.

In the event what happened in the making the first republican constitution was not a reasonable balancing of these competing interests into a coherent whole, but the steamrolling by the majority of all other interests. The term ‘majority’ has to be unpacked in this context. In one sense it was the two-thirds parliamentary majority of the UF government, which dominated the proceedings in the Constituent Assembly. This overwhelming majority – gained through the first-past-post-system even though less than half of the electorate had voted for the UF – induced the attitude that the government’s proposals were made on a take-it-or-leave-it basis. In another sense, it also meant an overwhelming majority for Sinhala-Buddhist interests within the constitution-making process. This entailed not merely the enactment of Sinhala-Buddhist nationalism’s constitutional goals in the new constitution, but also the active rejection of Tamil nationalism’s desire to include a measure of federal autonomy in it. This was how the first republican constitution created a state which closely reflected the majority community’s worldview in entrenching the centralised unitary state, Sinhala as the official language, and the ‘foremost place’ for Buddhism. The new Sri Lankan state reflected none or little of the minorities’ aspirations. This rejection meant that Tamil nationalists were free of any obligation of loyalty to the new state, and in this way, the first republican constitution laid the political foundations for federalist Tamil nationalism to turn into a separatist Tamil nationalism.

The Constitutional Architecture of the Sri Lankan State: Structural Principles

Constitutions establish both the norms and the institutions for governing a society. In establishing these norms and institutions, legal constitutions work best when they manage to articulate a good combination of what a society aspires to and what it actually is. The Sri Lankan republican constitutional order is clear about its norms and institutions, but they are most often observed in the breach, and most seriously, the legal superstructure of the state is not firmly grounded on the political foundations of its society. Thus the constitution articulates an ideal of the state, purportedly of all Sri Lankans, when it clearly privileges the constitutional aspirations of the majority and ignores those of the minorities. This not increases the potential for conflict and the failure of the state, but it also shows extremely bad design. The constitutional edifice of the state has been designed by reference to the majoritarian nationalist ideology, and its nostalgia for the pre-colonial Sinhala-Buddhist state described in the mytho-histories of the vamsas, not on a clear-eyed understanding of the political topography on which a durable, modern state for the island can be built in our times.

The most important structural principle of the Sri Lankan republic since 1972 is the principle of the unitary state. The unitary state is the type of state in which all power and authority is concentrated in central institutions. A unitary state can decentralise or devolve power, but the central institutions always retain the constitutional power to withdraw what has been given. In some cases, this power of the centre is more theoretical than real, but in the Sri Lankan case, it has and continues to be the case that the centre’s powers over the devolved provinces are not only real, but also frequently exercised in a way that denudes provincial autonomy.

The main assumption of those who are in favour of the unitary state is that its centralisation provides for a strong state, especially against the centrifugal forces of Tamil secessionism. This is an obviously undemocratic argument, because it denies minority aspirations to self-government on the sole basis of the majority will to refuse those demands. It is also manifestly a myth, given that the strength of a democratic state derives from its capacity to reflect and include all sections of the society in which it is based, not on its capacity to force sections of that society to conform with its dictates. Therefore to the extent the unitary state is rejected by a section of its population, the only effectiveness it can have is through short-term repression. It has no defences against its own long-term unviability.

The centralisation of power and authority implied in the unitary state is compounded by the presidential form of government established by the 1978 Constitution. The Sri Lankan President has enjoyed a range of powers, and an absence of checks and balances, that very few democratic presidential states allow. This reached its zenith with the Eighteenth Amendment, and the excesses and abuses that followed generated a wide reform consensus that was enacted in the recent Nineteenth Amendment. While these reforms have rebalanced the institutional equilibrium at the heart of the state somewhat, the state continues to be strongly presidential, and no reforms with regard to decentralisation have been attempted so far. The kind of excessive centralisation that is reflected in the Sri Lankan conception of the unitary state and of presidentialism undermines many other normative and structural principles that the legal constitution notionally recognises, including democracy, republicanism, equality and non-discrimination, and the separation of powers.

Constitutional Renovations in the Republican Era

The preceding discussion has outlined the dominant structural features of the post-republican state and the political terrain it occupies. Now the main institutional innovations that established and changed the structure of the Sri Lankan state since 1972 can be sketched, organised around five main rebuilding efforts in 1972, 1978, 1987, 2010 and 2015. While there are many more times that both republican constitutions have been formally amended, and even more reform initiatives that did not eventuate in actual constitutional change, these are historically the most significant occasions in past 43 years when the structure and form of the Sri Lankan state was subjected to serious or fundamental renovation.

2015 : The Reform of Presidentialism

The January 2015 presidential election saw the victory of the common opposition on a platform that had constitution reform, and in particular the reform or abolition of the executive presidency, as its centrepiece. Notwithstanding various compromises during its drafting, the recently enacted Nineteenth Amendment represents a substantial change for the better in Sri Lanka’s governing arrangements. In the best possible reading, the President no longer commands, but has to work in cooperation with a Cabinet of Ministers that is responsible to Parliament. This can be seen as restoring a semblance of balance to a constitution that had given the presidency overwhelming pre-eminence before. It has reduced the terms of both President and Parliament to five years from the previous six, it has provided that these terms are (more or less) fixed, and it has reintroduced the two-term limit on presidential office. It has made the President’s exercise of power susceptible to the fundamental rights jurisdiction of the Supreme Court. Re-empowered independent commissions would oversee key state services and the Constitutional Council will regulate presidential appointments. Thus the Nineteenth Amendment establishes both a better structural balance between the executive and the legislature, and a substantial framework for de-politicisation. It will have to be seen how well it is implemented.

2010 : The Expansion of Hyper-Presidentialism

When Sri Lanka’s war was fought to a bloody conclusion in 2009, there was some hope that the military defeat of Tamil secessionism would be matched by a constitutional settlement of Tamil political grievances. No such thing occurred and instead the victorious state expanded its own authoritarian potential by abolishing presidential terms limits and terminating or weakening key procedural limitations on presidential power. Taken together with attacks on the independence of the judiciary, a clampdown on social dissent, and widespread militarisation of civil administration, this instantiated an unprecedented regime of presidential authoritarianism in the country. This had the potential to fundamentally alter the trajectory of Sri Lanka’s constitutional development from one of a flawed but fairly robust South Asian democracy to a control democracy animated by populist nationalism. Fortunately, the democratic spirit and electoral traditions proved to be more firmly rooted within the polity than was thought, and the excesses generated under the post-Eighteenth Amendment constitution created the discontent necessary to see a rollback of this regime within less than five years.

1987 : The Introduction of Devolution

Sri Lanka’s inability to constitutionally resolve ethnic demands for power-sharing and autonomy had by the 1980s led to active armed conflict and involved the regional power India in the conflict. Under Indian pressure and facilitation, the Indo-Lanka Accord was signed in 1987, which among other things obliged the Sri Lankan state to devolve power. This was undertaken through the Thirteenth Amendment, which established a system of devolution to Provincial Councils. This introduced not only a new layer of representative institutions to the architecture of the state, but devolution also had to be reconciled with the overarching principle of the unitary state. This latter aspect circumscribed the outer limits of provincial autonomy quite narrowly from the outset. Notwithstanding this, the full potential of the system has never been realised not only because of the central state’s constant efforts to claw back powers and but also because of the disinterest among Tamil nationalists in the system as being too little too late.

1978 : The Introduction of Presidentialism

The executive presidency was actually introduced by the Second Amendment to the 1972 Constitution soon after the 1977 general election, but the full presidential state was established a few months later with the promulgation of the 1978 Constitution. Presidentialism represented a radical departure from the models of executive collegiality that had hitherto characterized the constitutional forms of Ceylon and Sri Lanka since the introduction of universal electoral democracy in 1931. Under diarchic executive under the 1931 Constitution was a quasi-Cabinet, which was meant to train local politicians in operating the Westminster system, which in turn was introduced by the 1946-8 Constitution and was continued when the country became a republic. Presidentialism had no precedent in the modern constitutional tradition of the country, and therefore it was culturally legitimated by reference to the much older political tradition of the ancient Sinhala-Buddhist monarch. The monarchical presidency has since come to dominate both institutional relations within Sri Lanka’s system of government, as well as the landscape of electoral politics more broadly, and it has under some Presidents further eroded the republican character of the polity. As a result, ever since its introduction, there has been vigorous debate about the adverse consequences of executive presidentialism from the perspectives of both democracy and pluralism.

1972 : The Establishment of the Republic

As noted at the outset, the promulgation of the 1972 Constitution established the Republic of Sri Lanka. This was the first time in the history of the island that the republican form of state was established (discounting the period under which parts of the littoral were controlled by the Dutch East India Company during the time the Netherlands were a confederated republic). Formally, this meant that the head of state was no longer a hereditary monarch, and substantively, that the new Sri Lankan republic was entirely legally autochthonous, i.e., there was no longer any constitutional link to a foreign country and that the states power derived exclusive from the people of Sri Lanka. More normatively, however, due to the exclusionary nature of the new state, its republican credentials have always been open to question. In political philosophy, a republic is defined by the commitment of the state to the principle of non-domination. This means that democratic majoritarianism has always to be balanced and countervailed by minority protection devices (‘minority’ here defined as the section of the population that is not within the democratic majority in any decision of political significance). As is clear from the discussion above, the Sri Lankan state is a republic only in the formalistic sense of not having a monarchy at its head; by every other normative reckoning, it is not a republic at all, but an ethnocracy in which the politically dominant ethnicity is constitutionally privileged.